Massachusetts Criminal Defense Lawyer Blog

An article recently in the New York Times addressed the issue of jury nullification. The article was entitled "Jurors Need to Know that they can say No." New York prosecutors charged Julian Heicklen a retired chemistry professor with jury tampering because he stood outside a federal courthouse providing information about jury nullification.

Prosecutor in the case argued that telling jurors about jury nullification amounts to intimidating jurors and was without constitutional protection. The doctrine of jury nullification is premised on the idea that the jury may disregard the letter of the law to render a just verdict. Jury nullification has resulted in not guilty verdicts in low level drug crimes in Washington DC where jurors felt the drug laws were being selectively enforced.

The United States Supreme Court has held that jurors had no right to be told about jury nullification; however, the idea has been part of the Constitution since its formation, that citizens, may place common sense and justice above the letter of the law. As a Massachusetts criminal lawyer, I feel as though prosecutors should not be concerned with jury nullification because when it occurs, and it is rather rare, it is generally the right decision.

One of the most common questions anyone charged with a Massachusetts criminal charge has is what is the court process. Whether you are charged with drunk driving, drug possession, domestic assault and battery or larceny, the court process is the same regardless of the type of offense. Though you may have different types of court dates, depending on the charge, the court procedure is the same for all cases.

What happens after the arrest? After you are arrested, your case will proceed to court in either one or two ways. You will be notified that you will receive a summons to appear for an arraignment or a clerk magistrate hearing; or you will be given notice that you must appear for an arraignment in court the next day.

Types of cases where you are likely to receive a summons, include shoplifting offense, larceny and other theft offense. If you were taken to the hospital as a result of an alleged drunk driving incident and were not arrest at the scene, you may receive a summons to appear before a clerk magistrate hearing on a Massachusetts OUI charge.

Criminal charges such as OUI/DUI, drug offense, domestic assault and battery, generally result in a defendant being given a court date for an arraignment on the next day after the incident.

What is an arraignment? An arraignment is a formal reading of the criminal charges; it is the official notice that you are being charged with one or more criminal offenses. The significance of being arraigned is that once you are arraigned you will have an entry on your Massachusetts Board of Probation Record. In some cases, this can be avoided by requesting and succeeding at a clerk magistrate hearing.

An arraignment will be very quick and a formality if you have little or no record and face minor charges. In theses cases, a not guilty plea will be entered and the case will be scheduled for a pretrial conference. If you face minor charges, it is not necessary for you to have a lawyer at the arraignment as the case will be scheduled for a further date.

When should you have a lawyer at an arraignment in Massachusetts?

If you face serious charges, such as third or fourth offense OUI, any sex crime, gun offense, drug distribution or domestic assault and battery, it is important to hire a Massachusetts criminal attorney to appear at the arraignment, as there could be an issue of bail or requests for pretrial detentions.

Continue reading "Criminal Defense Attorney In Massachusetts discusses court process after your arrest" »

Selectman John Whelan of Seekonk was arraigned February 13th on Massachusetts domestic assault and battery charges. The charges allege that he assaulted his wife over the weekend. Whelan and his wife Sharon have been separated for several months. She claims that while she was dropping off their two children, Whelan grabbed her by the shoulders and "forcibly tried to throw her out of the door." It is not uncommon for domestic assault and battery charges to arise out of a contentious divorce proceeding or the break up of a relationship.

According to the Sun Chronicle

The police reported that Whelan had fled the house in his car prior to their arrival. However, Whelan's lawyer argued that his client "didn't flee the scene, he merely left a heated situation." Whelan had been driven to the police station by a friend about an hour after the incident. Police arrested Whelan and they alleged that he had a "moderate" smell of alcohol on his breath.

Whelan denied the allegations in Taunton District Court and the judge ordered him held in jail on $1,000 cash bail. Sharon Whelan had told the court that she is concerned that her husband may be doing drugs because of some past incidences. As a result, she requested that a restraining order be put in place.

Under Massachusetts law, a person who has been a victim of a Massachusetts assault has the right to file for a temporary restraining order while the case is pending. Whenever the Massachusetts court issues a restraining order, the defendant must refrain from contacting the alleged victim and it prohibits the defendant from entering the victim's house of residence. A violation of a Massachusetts restraining order is a criminal offense.

Due to her allegations of his drug abuse and violent episodes, Sharon Whelan obtained a restraining order against her husband that also prevents him from contacting the children, pending any action involving custody in probate court which is scheduled next week. As part of Whelan's conditions of his bail, the judge also ordered him to refrain from alcohol or illicit drugs. He also has to submit to random drug tests. Whelan's lawyer affirmed that he thought his client's position as a selectman and his connections to the community did not put him as a flight risk. Therefore, he requested that Whelan be released on personal recognizance. The prosecutor did not request a dangerousness hearing because Whelan was not consider a danger to his wife at the present time.

Continue reading "Selectman Faces Massachusetts Domestic Assault and Battery Charge" »

Massachusetts judge imposed a CWOF or Continuance without a Finding, in Reckless Endangerment of a child case, involving Fall River pool death. The case against Brian Shanahan and Jeff Carter for reckless endangerment of a child was Continued Without a Finding for one year. The news reports from the Herald News indicates that after one year the matter will be dismissed.

This depiction of a CWOF can be confusing. While the case is technically closed, it is not dismissed as if it did not occur but appears on a board of probation records and the case is considered closed following the probation period.

However, for the one year, period, the defendants will be on probation. Any violation of a CWOF would subject the defendants to a probation violation hearing. As can be seen from the picture in the new accounts with the defendant's raising their hand in front of the court, both defendants admitted that the charges against them were true after a reading of the facts by the district attorney.

The benefit of a CWOF is that it is technically not considered a conviction; however, the disposition is an admission that the charges against a defendant are true and requires a defendant to admit the truth of the charges in open court.

If there are any new charges or is a failure to abide by the probationary conditions, a defendant can be violated on the probation and sentenced up to the maximum sentence. In a child endangerment case, the maximum sentence is 2.5 years; consequently, a violation of probation could result in jail time, or the revocation of the CWOF and the court imposing a guilty finding. While a CWOF has benefits, including the fact that it is technically not a conviction, it is not the equivalent of the case being dismissed and is sometimes misunderstood by the public.

In this case, the Fall River District Court judge imposed the CWOF over the objection of the Commonwealth. In Massachusetts, a defendant has the right to submit a tender of plea to a judge by filing out what is referred to in court as a "green sheet". If the judge accepts the defendant's recommendation, the judge will impose the sentence regardless of the district attorney's suggested sentence. If the judge exceeds the defendant's sentence recommendation, a Massachusetts criminal lawyer can schedule the case for trial or accept the sentence the judge would impose.

Plymouth police brought charges of attempted rape and assault against a Marshfield Man, Civitarese, 39, and Pelletier, 37, a Weymouth man. The alleged defendants were arrested Thanksgiving morning and were accused of assaulting a Marshfield woman in her home.

The Plymouth County District Attorney's office dropped the attempted rape charges once they looked further into the case. The The Patriot Ledger reported that after the district attorney interviewed the alleged victim, they did not find enough evidence to proceed with the charges. Therefore the charges of attempted rape and assault with a dangerous weapon were dropped immediately.

In this particular case, Massachusetts criminal charges were initially brought based on little investigation prior to the arrest. It is often too easy to get charged with a crime, even a serious one. Here the Plymouth police brought very serious charges against these two men. After further investigation which lasted for over two months, the D.A. concluded there was not sufficient evidence to proceed with the case. Charges being dropped do not repair the damage to the individual's reputation, job prospects, or personal relationships.

A person being charged with a serious crime, needs to seek immediate legal consultation in Massachusetts in order to eliminate these life changing effects.

Continue reading "Massachusetts Sex Crime Charges Against Marshfield, Weymouth Men Dropped" »

"Drug Dog Case May Reach United States Supreme Court"

Drug arrests in Massachusetts could be impacted by the case of Florida v. Harris, which the State of Florida filed a writ of certiorari requesting the case to be heard by the United States Supreme Court. To read the Florida Supreme Court's decision in Harris, click here.

In the case, the defendant was stopped for a technical motor vehicle infraction. The officer thought that the defendant was nervous and retrieved his narcotics detection dog which alerted the officer to the presence of narcotics in the vehicle.

The Florida Supreme Court held that evidence that a dog had been trained and certified to detect narcotics, standing alone, is insufficient to establish the dog's reliability for the purpose of determining probable cause to arrest.

The State of Florida has brought the case before the United States Supreme Court, asking the Court to reverse the decision of the Florida Supreme Court. The United States Supreme Court filings are on the Scotus Blog, which contains the petition before the Court.

As a Massachusetts criminal lawyer, I expect that the United States Supreme Court will affirm the Florida Supreme Court decision and find that a certified and trained drug dog standing alone is insufficient to establish probable cause. The Florida Supreme Court held the State must present evidence of the training and certification record of the dog, the significance of the training, field performance records, evidence concerning the training and experience of the handler of the dog as well as any other objective evidence of the dog's reliability. These requirements are not burdensome to the State but serve the important interest of ensuring that the drug dogs are reliable before a court will find probable cause to search.

On Appeal, the State of Florida has argued that this holding is contrary to United States Supreme Court case law, federal law and the decision of other State courts. The United States Supreme Court has not decided whether to grant further review of this decision. This decision if affirmed by the United States Supreme Court would have a significant impact on Massachusetts drug crimes arrests.

Being accused of a domestic assault charge in Massachusetts is a serious matter. The accused could be facing jail time, restrictive probation, enrollment in a lengthy anger management program, or even a certified batter's program. The average anger management program lasts up to 14 weeks, while the batter's program is a more intense 40 week course.
Domestic assault charges could be the result of many different encounters such as:

According to Massachusetts domestic assault and battery law , assault occurs when a person is in imminent fear of bodily harm, with no actual contact occurring. When the alleged victim claims there was physical contact, it becomes an assault and battery charge against the defendant. Depending on the severity of the injuries, whether or not a weapon was used, and the identity of the victim, there are many different variations of an assault and battery charge.

Recently, The Sun Chronicle reported that an Attleboro man has been charged with domestic aggravated assault and battery against his 33 year old pregnant girlfriend. A state trooper traveling north on route 152 saw a man outside of a pick up truck yelling at a woman with his hand at her throat. When the trooper pulled over to intervene, the man was found allegedly choking his girlfriend. The woman was found crying with red marks on her neck. In Attleboro District Court, the defendant entered a not guilty plea. He was released on probation and has to report weekly to his probation officer while the case is pending. When an individual is released with conditions to comply with, if a defendant violates those conditions, the court may hold the defendant without bail or set a bail to ensure the defendant's appearance in court. In this case, conditions of release were set instead of requiring the defendant to post bail.

Many times the victim of a domestic assault and battery charge may have a motive to fabricate in order to get back at the accused. As previously mentioned, this can often occur when a relationship breaks up, during a divorce, or even custody disputes. It is crucial to have a knowledgeable Attleboro criminal defense attorney since the difference between being charged with a simple domestic assault or an assault with a dangerous weapon is significant. In Massachusetts, the assault and battery charge is a misdemeanor while an assault with a dangerous weapon is a felony offense. In District Court, the maximum penalty for both charges is 2.5 years in the house of correction.

Continue reading "Domestic Assault Charges in Massachusetts and Potential Penalties" »