Articles Posted in Felony offenses

Under state statute (G.L. c. 90 § 24), all drivers in Massachusetts have a legal obligation to stop and identify themselves whenever they know that their vehicle has collided with another vehicle, property, or a person. If the driver collides with another person, leaving them dead or unconscious, the driver must stay at the scene and provide information to another motorist or officer, or leave the scene to find a telephone to report the accident to authorities. Failure to do so could result in license suspension or criminal offenses.

Other states, such as Georgia, also require drivers to provide injured parties “reasonable assistance,” including providing, or arranging for, transportation of the injured parties for medical attention. Under Georgia statutes OCGA 40-6-270, a driver could be charged with a felony hit-and-run for failing to provide such assistance. Another statute, OCGA 40-6-393, also allows for a driver who fails to stop as required under 40-6-270 to be charged with first degree vehicular homicide if he injures a person and that person subsequently dies. Under the second statutory provision, a person could be sentenced to up to 15 years in prison, in comparison to the five years under the hit-and-run provision.

The case of Henry v. State, heard by the Court of Appeals of Georgia, demonstrates the different legal issues that come into play in such hit-and-run cases. In Henry v. State, the defendant was operating a vehicle with a passenger down a public road in Georgia after midnight, when he struck two fourteen year-old boys walking in the grass along the road. The passenger testified that he felt an impact and saw one boy’s head hit the hood of the defendant’s pickup truck, and screamed to the defendant: “You just killed somebody. Stop Henry.” The passenger also testified that he was certain that this boy died on impact. Rather than stop to provide assistance as the statute requires, the defendant sped home and later abandoned the truck in a field with the intention of reporting it stolen.

Defense attorneys for Aaron Hernandez appeared before the Fall River superior court on Monday to ask the court to dismiss the murder indictment against Hernandez. The defense attorneys premised their motion to dismiss on the argument that the prosecutors injected unfair prejudice into the grand jury proceeding to bias the grand jury against Hernandez without meeting their burden of proof to establish probable cause. From the perspective of a Massachusetts criminal defense attorney, this is a common motion filed by defense lawyers.

According to one of the defense attorneys, the prosecutors presented highly harmful and irrelevant evidence before the grand jury in 2013 to portray Hernandez as a violent individual who does not abide by the law. In doing so, argued the defense attorney, the prosecutors predisposed the grand jury against Hernandez without truly establishing probable cause to charge Hernandez with the murder of Odin Lloyd. The underlying premise is that in predisposing the grand jury against a defendant, the defendant is deprived of his constitutional right to due process of law. My Fox Boston reported on the motion to dismiss and had video footage of the argument.

Hernandez’s defense attorneys have a very heavy burden to meet in order to succeed on this motion. Courts will not generally look into the validity or quality of the evidence presented to a grand jury. A court will only review a grand jury indictment if there is insufficient evidence to support a finding by the grand jury that the defendant likely committed the alleged offense, or if the defendant argues that the prosecutor has impaired the integrity of the grand jury proceeding. See Commonwealth v. Freeman, 407 Mass. 279 (1990), This second claim is the one raised by the prosecutors in the Hernandez matter, and it essentially alleges that there was prosecutorial misconduct at the time of the grand jury proceeding.

A Judge is under fire for sentencing a defendant who admitted to Rape to a 45 day jail sentence with probation. The judge from Texas Judge Jeanine Howard based her sentence in part on what she called the promiscuous nature of the victim and the fact that the defendant was not your typical sex offender. The media criticism of the judge has been on the fact that she denigrated the victim when the defendant admitted the Rape occurred. The story was reported on CNN in its Justice Section.

The Judge’s sentence suggests that she may not have believed there was a factual basis for the plea. The Judge should have declined to accept the plea; if a defendant admits to an offense, which the Court accepts, the facts have been determined and at that point the Court should not minimize the offense in imposing sentence and certainly should not be critical of the victim.

A recent case in the Attleboro District Court demonstrates what should have occurred in the Young case. Prosecutors sought a one year jail sentence while the defendant sought probation in what is known as a defendant capped plea, meaning that if the court exceeds the defendant’s proposed sentence, the plea can be withdrawn. The defendant was charged with a domestic assault and battery. The Judge in the Attleboro case refused to impose either sentence, ruling that he would give the defendant a two year jail term based on the nature of the facts.

A recent Brockton case raises issues surrounding probation violation hearings and exemplifies how the state can often fail to respect probation violation hearing standards.

In the recent Brockton case of Commonwealth v. Bukin SJC-11306, a defendant was inappropriately sentenced after being accused violating their probation by committing a new offense. As the violation involved an unrelated criminal charge, the defendant received a probation revocation hearing and a probable cause hearing for the new charge.

At the probation hearing, the court seeks to determine two facts:

In criminal cases, testimonial hearsay is usually not allowed and will be inadmissible at testimony. Hearsay testimony would be somebody taking the stand and explaining what somebody else said. The United States Constitution and specifically the confrontation clause grants every defendant in a criminal trial the right to confront witnesses used against them and cross examine them. As a Massachusetts criminal defense attorney, cross examining is extremely important to ensure the truth is being told by the witness. With hearsay testimony, the right to cross examine the witness would be gone as it is simply somebody else stating what was said and for this reason is unconstitutional.

However, there is one exception to this hearsay rule which was explained in Michigan v. Bryant. In this case, the victim was mortally wounded and in some of his last words, he told police he was shot by the defendant. The Supreme Court found that the officer’s testimony of what the victim said was constitutional even though that would usually be hearsay testimony. The court ruled that in emergency situations such as this where something is said in a victim’s dying words, it will not violate the confrontation clause.

A Rhode Island murder case has recently had a case with similar facts such as these. In this case, a detective found two men wounded outside of the Monet Lounge in Providence and was informed that there were two suspects in custody. The detective then led the suspects over to the mortally wounded victim. He proceeded to show the victim one suspect and asked if this was the man who shot him. The victim had no response, and when the detective showed the other suspect, who is now the defendant, the victim shook his head up and down identifying the defendant as the shooter.

Law enforcement have been using trained canines for decades in drug cases throughout the country. germanshepherd3.jpg

Our Boston criminal defense lawyers understand the wide latitude granted these search dogs and their handlers may finally be curbed by the nation’s high court.

The U.S. Supreme Court will look at two cases decided in favor of the defendants by the Florida Supreme Court. Previous rulings found the pooches breached privacy rights and were unreliable.

Oral arguments were concluded last week, and a decision is expected sometime in June.

The issue arose amid rulings in two cases, coincidentally out of Florida, in which drug dogs were used – once in a home search, and once in a vehicle search.

In one case, the dog was used during a traffic stop in Liberty County. The officer pulled over the driver, and the dog was brought to the vehicle to sniff the exterior. This is a common practice that was upheld in a 6-2 decision by the U.S. Supreme Court in 2005. Justices ruled that in the course of a lawful traffic stop, a drug dog sniff does nothing more than indicate to the officers were the unlawful substance is located, and therefore does not breach the individual’s Fourth Amendment rights.

In this case, the dog alerted for drugs when the vehicle was sniffed. Drugs were found and the driver was arrested and released on bail. This happens all the time, and would not have made headlines, except for what happened next. Two months later, the driver was again pulled over. The same officer stopped him. The same dog was with him. The dog alerted in the same manner. However, this time, a search of the vehicle revealed no drugs.

It was on this basis that the court tossed evidence collected in the first search. Although the initial stop may have been lawful, the court ruled, the dog’s sniff clearly could not constitute probable cause to search when the dog had been deemed unreliable.

Attorneys for the state argued that extensive testimony regarding a dog’s training should not become part of every criminal trial. Attorneys for the defense countered that because dogs are animals, they are prone to mistakenly alert for almost anything – a tennis ball or other animals, for example.

Alongside this issue is one of privacy, specifically home privacy. In the second case, an officer acting on a tip approached the home of a suspected marijuana grow house operator. His canine was in tow. The canine positively alerted for marijuana, and on that basis, the officer obtained a search warrant. Officers did indeed find marijuana inside the home. However, a judge suppressed all evidence relating to that search, as he concluded officers had trampled on the defendant’s Fourth Amendment rights by approaching his door with a trained dog.

The risk here is if the Supreme Court justices decide in favor of the prosecutors in this case, there would be nothing to stop officers from going up and down streets with canines and approaching homes at random, on a fishing expedition for drugs. Police agencies say they haven’t the time for that, but barring laws that would specifically ban them, we can’t rule it out as a possibility.

In one indication that the defense may receive a favorable ruling, Justice Sonya Sotomayor cited an Australian study, which indicated that drug-sniffing dogs had an accuracy rate of only about 12 percent.

Massachusetts criminal cases involving drug dogs should always be handled by a defense attorney experienced in challenging search warrants and probable cause.
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Those in need of a solid, Massachusetts criminal defense will want to consider the following: A recent study indicated that some 2,000 people in the U.S. have been exonerated and declared innocent in the past 23 years. blackpolicecuffs.jpg

This might seem good news, and certainly those are joyous occasions.

However, Massachusetts criminal defense lawyers would point out that the majority of those exonerations didn’t happen until years (an average of 11) after the conviction. That’s an incredibly long time for someone who is innocent.

The reason why this is so important to note is because while we like to believe that the criminal justice system is fair and that justice will prevail, there are flaws. What that means is that your investment in a skilled Massachusetts criminal defense attorney is critical. It ensures you have an advocate who can defend your rights at every step of the process. Just because you are innocent of all or part of the crimes of which you are accused does not mean you can trust your fate to an overworked public defender.

And while there may have been some 2,000 exonerations over the last two decades, it is believed that is a relatively small number of total innocent people who are jailed. In fact, the researchers themselves estimated that an inordinate number of false convictions are slipping through the cracks.

In taking a closer look at the study, conducted by the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University, about 870 of those convicted spent a combined total of more than 10,000 years in prison.

That’s 10,000 years served by innocent people.

Ninety percent of those were African Americans.

About half of the cases were murder and about a third were sexual assaults. That means we’re not talking about petty theft or larceny. We’re talking about serious crimes for which people are facing decades – or worse – behind bars.

It can be a challenge for defense attorneys to overcome some of these odds, particularly if the person has a prior criminal record. But committing one crime in the past does not automatically mean you’ve committed another, and each case has to be analyzed and decided on its own merits.

The researchers guesstimate that there are approximately 1 million felony convictions across the country every year. With court systems that are burdened by budget woes and staffing issues, there’s a huge propensity for mistakes that could cost you your freedom.

Those mistakes have a lot to do with witnesses. Massachusetts criminal defense lawyers have long known that eye witnesses can be problematic for a number of reasons. Typically, it’s not necessarily that a person is lying (though that of course does happen). In a lot of cases, people are simply mistaken. It was dark, they couldn’t see well, it happened so fast – there are a lot of reasons for misidentification. But people want to catch the “bad guy,” either because they want to be helpful or because they truly want to see justice done. They’re reticent to admit they just aren’t 100 percent sure of what – or who – they saw.

That’s why having a defense attorney with experience is going to be so incredibly important. Intense scrutiny of the evidence by a skilled attorney is your best chance for a favorable outcome.
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Four men accused of a burglary, who first were suspected of an attempted abduction in Attelboro, are being held in jail on $25,000 bail, The Sun Chronicle reports.

Charges of burglary in Attleboro are punishable by up to 20 years in prison, which is likely why the defendants were held on such a high bail. This case also highlights the damage that can be done by the news media and makes the job more challenging for a Massachusetts criminal defense lawyer.
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The Sun Chronicle story, in its first paragraph mentions “attempting to abduct” and a 7 News report online repeats the same phrasing. Yet, there are no charges of abduction that these men face.

The damage has already been done in the court of public opinion. When people think of this case, they’re going to think about the fact that police believe these men were attempting to abduct a woman, when there is absolutely no proof. Working to separate fact from fiction — and fighting to keep irrelevant material out of court — will be critical to the defense.

According to the news reports, a woman was jogging near the Attelboro/Rehoboth line, when she saw a van carrying several men drive by slowly. When the van turned around and drove by her again, she panicked, letting go of her dog’s leash and running toward a nearby house. When no one was there, she hid in the woods.

Police have said she had the right to act that way. Maybe she did, but a van driving slowly, perhaps because the driver was lost, doesn’t constitute allegations of an abduction. Other than the woman being spooked by the incident, there is nothing to suggest the people in the van wanted to harm her.

Sadly, this may be what sticks with people who have read the articles or watched the TV news broadcasts. After this happened, police launched a massive hunt for the men, using a reverse 911 message to alert residents.

Ryan McCoy, 23, of Attleboro; James Gould, 27, and Benjamin Gould, 23, of Plainville and Phillip Muggle, 29, of Rehoboth were arraigned recently in Taunton District Court after police arrested them.

The Sun Chronicle reports that police found property from a Smith Street house that linked them to a burglary. They also face a charge of witness intimidation, though it doesn’t appear from the media reports that there is much evidence of that.

Because of all the excitement of a police manhunt and the media coverage, this will be a topic of conversation for a few days. Whether there is any real evidence linking them to a burglary remains to be seen. So far, they are guilty of nothing.

A burglary is fairly common, but an abduction isn’t. An experienced Massachusetts criminal defense lawyer knows that jury selection is perhaps the most important part of a trial. If this case reaches that stage, it will be important to ensure jurors do not rely on media reports or evidence not before the court.

Without a fair jury, a defendant doesn’t have a shot.
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The Baby Lisa case has garnered national headlines as local authorities and the FBI search for the child missing in Kansas City since Oct. 4.

According to The Kansas City Star, the 11-month-old girl was reported missing from her crib that day.
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CNN reports that the FBI recently obtained a search warrant for the house and began searching recently and the order bans the family of the girl from returning home.

A missing child is a a nightmare for any parent. But if recent media reports have taught us anything, it’s that authorities will look to the parents as soon as they look at outside suspects.

And after about two weeks, it appears that’s exactly what’s happened here. Obtaining a search warrant and banning the family from going into their home seems to indicate authorities are now turning their attention inward.

Charges of kidnapping in Massachusetts are among the most serious a person can face. Massachusetts criminal defense lawyers know the penalties are steep and will prepare a strong defense for a person accused of such a crime. That means challenging all evidence and seeking independent witnesses to verify the facts.

In Massachusetts, kidnapping charges can be penalized in a variety of ways, depending on the facts of the case. For instance, if the kidnapping was committed to extort money, a person convicted could be sent to prison for life. In other circumstances, the sentence could range from 2 to 10 years.

The Kansas City Star reports that police have revealed little about what they know to the public. The newspaper reports that the majority of the information coming out about the case has come from the child’s parents.

The girl’s mother has told the media that she failed a polygraph test, was drunk and may have “blacked out” the night the girl went missing and now the police are accusing her of being involved.

The parents and police differ about their cooperation level. The parents say they are helping, while the police have said they are not. It’s been more than a week since the parents and police sat down and spoke and the parents aren’t making the baby’s older siblings, who were home the night of the disappearance, available to detectives.

The case started Oct. 4 around 4 a.m. when the girl’s father got home from his overnight job and reported the girl missing. The mother said she had last seen the girl around 10:30 p.m. the night before.

A neighbor reported a man seen with a baby around 2 a.m. Within two days, the police had questioned the mother and said they were no longer cooperating. The family then scaled back interviews and appearances on national television.

CNN reports that a child resembling Baby Lisa was reported about 100 miles away, but that turned out to be a false lead. The family believes it’s possible someone could have entered the home without the family knowing since their bedroom is on the opposite side of the house and the baby’s room has a loud fan blowing.

But it appears police are spending more and more time focusing on the mother, since she was home the night it happened. She admits to being drunk, but denies involvement in her daughter’s disappearance She has admitted she fears police will arrest her.
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A Provincetown man is suing amid claims his privacy rights were violated after authorities allegedly kept records in connection with a voluntary DNA sample he submitted during an investigation into the killing of a fashion writer, the Boston Globe reports.

Massachusetts criminal defense attorneys are seeing an increasing number of criminal charges being brought in cold cases after hits from the DNA database link defendants to the crime. In addition to the state system, samples are submitted to the Combined DNA Index System (CODIS), which compiles and compares samples from defendants and unsolved crimes nationwide.
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While seldom discussed as a reason to fight a conviction on felony charges in Massachusetts, keeping your DNA out of such databases can be critical to protecting your privacy rights.

In this case, Keith Amato sued after trying for two years to get his sample back from law enforcement. He claims the submission was voluntary and that authorities told him he would get the sample back if his DNA did not match a sample collected at the scene of the killing of Christa Worthington. While the sample was returned in October 2008, he claims the state crime lab has held his DNA profile, along with records and samples provided by other men.

Last week, the Massachusetts Appeals Court ruled his lawsuit can go forward; it had been tossed out by a lower court.

“The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato’s privacy,” the court ruled.

Worthington’s trash collector, Christopher McCowen, was convicted in 2006 of her rape and murder and is serving life in prison. Worthington lived in Cape Cod at the time of the crime. Investigators solicited samples from numerous men who knew the victim. Amato was a relative by marriage of the father of Worthington’s 2 1/2 year old daughter.

The lawsuit claims as many as 200 men gave samples and that Amato was assured any samples that did not match the crime scene would not become part of any state or federal database. McCowen also provided a sample before being arrested in 2005.

Amato was unsuccessful in retrieving his sample, despite requesting its return on numerous occasions from the Cape & Islands District Attorney’s Office. The office said state lab protocol requires retaining evidence in murder cases for 50 years.

Such DNA dragnets are an example of law enforcement operating in a gray area. The “voluntary” collection of samples comes perilously close to unreasonable search and seizure and must be aggressively challenged by a Cape Cod criminal defense lawyer.

Unfortunately, such tactics have been around since the advent of DNA. The first use of DNA in a criminal case occurred in England after the rape and murder of two girls. “Mass screening” of male subjects was used to solve the crime. The case is recounted in “The Blooding: The True Story of the Narborough Village Murder,” by Joseph Wambaugh.

Wambaugh is a former detective with the Los Angeles Police Department.
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