Massachusetts Criminal Defense Lawyer Blog

As a Massachusetts criminal attorney, once any client is sentenced after trial or accepts a plea to jail time, the first question is, when will I get out. This will depend on how the sentence is structured. Massachusetts criminal sentences can be concurrent or consecutive, meaning one after another. The Casey Anthony Sentencing provided an example of the judge sentencing Anthony to consecutive sentences on the four misdemeanor counts she was convicted of. In many misdemeanor cases in Massachusetts, it would be common for a judge to sentence a defendant to concurrent time on four separate misdemeanor charges meaning that the sentence would run at the same time for each count of the complaint.

In Anthony's case, she had substantially jail credit meaning that she had already served her sentence prior to trial. Jail credits are important for a Massachusetts criminal lawyer to calculate as well. In a Massachusetts felony or misdemeanor case, if a person cannot post bail and is held prior to trial or sentencing, then if there is a conviction or plea, the defendant is entitled to jail credits from the time that the defendant was held on the case. Where jail credits can get complex, is when a defendant is being held on more than one case or doing a sentence for another charge pending trial. A defendant is entitled to jail credits if being held on two charges at the same time, but would not be entitled to jail credit if serving a sentence pending the resolution of an outstanding charge.

Six were brought to Attleboro District Court as a result of having an outstanding default warrant. The Attleboro Sun Chronicle reported that State and local police conducted a warrant sweeping looking to apprehend criminal defendants with outstanding default warrants. A default warrant is a warrant issued by the court when an individual fails to appear in court; when an individual is brought to court on a default warrant, generally the person is brought in custody and the Commonwealth will often make a request for a cash bail. The reason that a bail request is often made when a default warrant issues is because by failing to appear in court, a defendant allows the court to believe that only the risk of losing a cash bail will compel the defendant to appear in court.

The warrant sweep related to a variety of criminal charges including, larceny, shoplifting, driving an uninsured vehicle and assault and battery. Typically, when an individual has a no record or only a few contacts with the court, the court will release a defendant on a promise to reappear in court.

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Bristol County District Attorney Sam Sutter's proposal to move trials forward even if the defendant fails to appear would be declared unconstitutional by the Massachusetts Supreme Judicial Court. In an effort to decrease the number of defendant's who fail to appear in court, the Bristol County District Attorney has proposed requiring defendants to sign waivers allowing trials to proceed without their appearance in the event of a default. This waiver would clearly be unconstitutional as courts indulge every presumption against waiver of constitutional rights. The so-called waiver for defendants that default would involve defendants waiving numerous constitutional rights, including the right to confront their accuser, right to testify, elect between a bench or jury trial and the right to effective assistance of counsel and a fair trial.

As a Fall River criminal lawyer, I can understand the frustration of the district attorney that cases cannot be resolved as a result of defendants failing to appear in court. However, District Attorney Sutter's proposal is an unconstitutional and would ultimately be unworkable. First, a defendant should simply refuse to sign the so-called waiver form. It would be inappropriate for a judge to raise or set a higher bail based on the district attorney attempting to obtain a waiver of a defendant's Constitutional rights.

As a Bristol County criminal lawyer, it would be inconceivable to have a trial without the defendant being present. First, there are certain fundamental decision that a criminal lawyer cannot make without consulting with the defendant, whether to proceed with a bench or jury trial and whether or not the defendant testifies. Clearly, allowing a trial to go forward without the defendant would deprive the defendant of the opportunity to testify and deny the defendant a fair trial. Further, there would be a natural tendency for the jury to find a defendant guilty based on the failure to appear as the jury would likely speculate as to the reason for the defendant not appearing.

District Attorney Sutter's proposal also underestimates the amount and time consuming collateral attack on convictions that would result. Defendants convicted would naturally challenge the conviction and argue that the reason for the default did not justify the severe sanction of the case proceeding to trial without the defendant's presence. Courts would be forced to litigate time consuming motions for new trial filed by Massachusetts criminal attorneys.

While it is understandable the desire to decrease the number of defaults to move cases, defendants defaulting are not the only cause of cases being delayed. It is not uncommon for police officers to fail to appear for trial and for the Commonwealth to seek continuance. Moreover, the Commonwealth frequently seeks continuance for numerous reasons, including unavailable witnesses and not having evidence that should have been obtained prior to trial. Finally, there are already mechanisms in place to deter defendants from defaulting, including the setting of bail.

I would not expect the waiver form to have much impact on future cases as defendants should not sign the form. The focus brought by the media report of the proposal may result in the district attorney seeking higher bail amounts for defendants with a record of defaulting for court appearances.

One of the first issues facing any Massachusetts criminal lawyer in representing a client charged with a criminal offense is whether the court will require the setting of a cash bail or impose conditions of release upon an individual. In most case, when a criminal defendant has little or no record and faces minor charges, a defendant will be released without having to post any cash bail; this is referred to as personal recognizance, meaning that the defendant has promised to appear before the court on the next date set by the court, typically a pretrial conference date.

The case of Commonwealth v. Shaun Madden decided by the Massachusetts Supreme Judicial Court, raised the issue of whether a defendant could appeal the decision of a district court judge setting conditions of release when no cash bail is set. In the case of Shaun Madden, the defendant appealed the decision of the district court placing him on GPS monitoring as a condition of his release and imposing a curfew.

The Massachusetts Supreme Judicial Court held that the superior court has the power to modify any condition imposed on a defendant as a condition of release. Interpreting the Massachusetts bail statute, G.L. c. 276 § 58A, the court held that the plain language of the statute authorizes a defendant to seek review of any bail determination or condition of release as the statute states that if a defendant is not released from custody on personal recognizance then the defendant is entitled to appeal to the superior court. The SJC emphasized that being released on personal recognizance is not the same as being released subject to conditions as conditions of release can impose substantial deprivations of an individual's liberty.

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A Fall River man, Eric Jordan, accused of lying to the police and failing to cooperate in a grand jury investigation, had his bail reduced by a judge of the Fall River Superior Court, according to a news account in the Herald News.

In a criminal case, whether felony or misdemeanor, a defendant's Massachusetts criminal defense lawyer has the right to appeal the amount of bail set by a judge of the district court to the superior court. This appeal is a de novo appeal, meaning that the superior court judge has discretion to reconsider the amount of bail without regard to the determination made by the district court. The superior court judge can lower the bail, keep it the same or raise the bail amount. In the case of Eric Jordan, the superior court judge reduced the bail from $ 50, 000 to $ 3, 000. It is not uncommon for superior court judges to reduce district court bail determinations. Accordingly, if you can post the bail set by the district court, you should have your Massachusetts criminal defense attorney appeal the bail determination to the superior court.

The Massachusetts legislature amended the dangerousness hearing statute to essentially overrule the Massachusetts Supreme Judicial Court's decision in Commonwealth v. Thomas. In that decision, the SJC held that mere possession of a firearm does not allow the Commonwealth to hold a defendant without bail under the dangerousness statute because possession of a firearm in itself is not inherently dangerous. The court held that possession would have to be combined with some evidence that the individual intended to use the firearm in a dangerous fashion. Without such evidence, possession of an unlicensed firearm is essentially a regulatory offense, under the court's reasoning, that did not cause a substantial risk of harm to the public.

The Amendment to the statute means that any individual charged with a Massachusetts gun offense is likely to face a request by the Commonwealth that the defendant be held without bail for up to 90 days. Prior to Thomas, it was the routine practice in Bristol County District Court for the Commonwealth to seek dangerousness hearings in all gun cases.

When the Commonwealth requests a dangerousness hearing, a Massachusetts criminal defense lawyer can object to the request and if it is denied will then have the opportunity to cross examine the Commonwealth's witnesses in an effort to have the court deny the request. In some cases, where a defendant would likely be held on high bail, a dangerousness hearing can actually help a defendant by proving an opportunity to obtain a preview of the Commonwealth's testimony prior to trial.

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The Massachusetts legislature is considering amending Section 58A of Massachusetts criminal laws, allowing the Commonwealth to hold a defendant without bail for up to 90 days under the dangerousness statute. The amendment is in response to Commonwealth v. Thomas, where the Massachusetts Supreme Judicial Court held that possession of a firearm without an FID card is not an enumerated felony or one that involves a substantial risk of physical force against another person.

The legislation is being pushed by Bristol County District Attorney Samuel Sutter. Bristol County District Attorneys have been aggressive in using the dangerousness statute to attempt to hold defendant's without bail prior to trial. Types of cases where dangerousness hearings have been requested include, assault and battery with a dangerous weapon, 4th offense OUI charges and weapon offenses. As an experienced Massachusetts criminal defense attorney, any case involving a serious injury, weapon or multiple offense OUI may require preparation for a dangerousness hearing. Often these hearings provide a benefit to a defendant as the defendant is given an opportunity to cross examine the Commonwealth's witnesses.

Prior to Thomas, in any case involving a firearm, the district attorney's office would seek a dangerousness hearing under Massachusetts law. The Thomas case held that possession of an unregistered firearm is not a criminal offense that in itself involves the risk of danger as the crime is essentially a regulatory crime.

While the statute may be amended in early January when the legislature reconvenes, a Massachusetts criminal lawyer may seek to challenge the statute on due process grounds as a detention without bail prior to trial is a serious deprivation of liberty that implicates constitutional limitations by the court.