Articles Posted in sex crimes

The path has been cleared by the Massachusetts Supreme Court for a dangerousness hearing in the case of a teacher accused of sex with three, 14-year-old female students.lawgavel.jpg

Massachusetts criminal defense lawyers understand that the issue in this case was the question of whether lack of evidence regarding the presence of physical force – or threat of physical force – precluded the necessity of a dangerousness hearing.

Ultimately, Massachusetts Supreme Court justices ruled that the crimes of which the teacher is accused inherently would have required at least some level of physical force on the defendant’s part in order to be carried out – i.e., penetration. This was regardless of the fact that there does not appear to be evidence of any other physical force in connection with the alleged crimes.

To help you better understand, we need to first explore what a dangerousness hearing is and why they are requested. Dangerousness hearings, as spelled out in M.G.L. Chapter 276 Section 58A, are court hearings held after arrest but prior to trial for a person accused of certain felony crimes involving force or threat of force.

The idea is to determine whether the state should hold you – for a period of up to 90 days – based on the belief that you may be a threat to society. It’s separate from a bond hearing.

For example, in this case, the 33-year-old defendant had been released on bond, following his arrest on five counts of enticing a child under the age of 16, two counts of disseminating obscene matter to a minor, four counts of aggravated statutory rape and one count of reckless child endangerment. Upon his release, he was fitted with a monitoring device, and he continues to await trial.

However, the prosecutor had sought a dangerousness hearing in an effort to get him back into law enforcement custody for at least three months.

In many cases, a client is not released before such a hearing is requested — but instead remains behind bars without bail. It’s important to note that a defendant can – and in most cases should – petition the court as to the necessity of a dangerousness hearing in the first place.

And that’s what happened here.

When prosecutors first requested the hearing, the lower judge ruled that the aggravated statutory rape charge didn’t meet the terms as spelled out in M.G.L. Chapter 276 Section 58A because there was no use, attempted use or threatened use of physical force.

However, prosecutors appealed that decision to the Massachusetts Supreme Court. The Commonwealth’s high court reversed the lower court’s ruling, stating that some force would have been necessary to consummate the crime.

What that means is that the dangerousness hearing can move forward.

What’s likely to happen? While it’s difficult to predict the outcome in any case, some of the factors that will be considered, as in any dangerousness hearing, are:

  • The nature and the circumstances of the alleged crime;
  • Whether the individual would pose a great risk to the community if released;
  • Whether the individual has a history of mental illness;
  • What type of employment record the person has;
  • What family ties the accused has in the community;
  • What sort of risk exists that the individual may threaten witnesses or otherwise interfere with the investigation if released;
  • Whether the accused has a history of alcohol or drug dependency;
  • What is the reputation of the defendant;
  • What is the criminal history and prior bail violations of the defendant.

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New Bedford sex crimes defense attorneys know that an allegation of such an offense can have major implications for the accused.

This is especially true for college students charged with a New Bedford sex crime. With an entire future ahead of him, college students must find an experienced and knowledgeable defense attorney, whether the charge is date rape, statutory rape, sexual battery or other sex offense.

In a lot of Massachusetts sex crimes that allegedly occur on campus, victims will report those allegations to university police. There is supposed to be specific protocol in place for how such cases should be handled, although there have been some high-profile instances in recent years in which top university brass have come under fire for attempting to sweep such situations under the rug. These institutions don’t want to gain a reputation as being unsafe for students.

Allegations of sex crimes in Boston can be devastating to the family life, career and reputation of the accused. military.jpg

This is particularly true when the accused is a member of the military.

Boston sex crimes attorneys have been closely watching the allegations unfolding from the U.S. Military Academy in New York and the U.S. Naval Academy in Maryland. In both of these cases, the alleged victims have admitted they were intoxicated at the time the alleged crimes occurred.

There is no doubt that the accusations of Boston sex crimes can ruin a person’s life. teachingthegame.jpg

Massachusetts defense attorneys know that the potential is there to completely tarnish a person’s reputation, future employment prospects, living arrangements and personal relationships.

Of course, we also know that a great deal of the allegations aren’t true, or are some exaggeration of the truth. We may see a lot of this in cases where multiple plaintiffs come forward in the wake of a high-profile case.

This is what’s happened in the case of Bernie Fine, an ex-assistant coach at Syracuse University. Once having four allegations of sexual misconduct lodged against him, each and every single one has failed to stand up to the credibility test – including the most recent allegation, in which the accuser flat-out admitted he lied.

Fine was fired in November, in the wake of the allegations.

It seems one can hardly turn around without word of some new sex abuse allegation being lobbed at educators and coaches around the country. The case against former Penn State Coach Jerry Sandusky is one. Then there are the host of allegations that continue to be filed against coaches and teachers in California.

Some of the reasons have to do with the very nature of the job in working closely with children on a one-on-one basis. It leaves employees in these positions susceptible to false allegations – particularly those made years after the fact – because you’re left with a he-said-she-said scenario. Plus, children and youth may not understand the full scope of consequences of their false accusations. And accusers may believe there will be some form of eventual pay-out if the coach or teacher is high-profile — and they figure the odds are better if there is more than one accuser.

A skilled defense attorney who is aggressive in getting to the bottom of these accusations may be able to confront the accuser with a greater weight of evidence favorable to the defendant. Sometimes, this results in a full recanting of the original allegation.

This is what happened in the Bernie Fine case.

A 23-year-old man from Lewiston, Maine is currently preparing to serve more than three years in a Massachusetts prison on allegations that he sexually abused a teenaged boy. The defendant in that case is one of the four who accused Fine of sexual assault.

The defendant said that when he was 13-years-old, Fine fondled him in a Pittsburgh hotel room, and that he and the assistant coach had watched pornography together. He filed a civil lawsuit in December, but his attorney withdrew it several weeks later.

He now says that not only were the allegations untrue, but he had never actually met Fine, and that he “takes pride in lying.”

Then there was the accusation that came from another prison inmate who made allegations against Fine. Those reports were never published because media outlets deemed them not credible from the start.

Two other accusers, former ball boys for the Syracuse team, said they too were molested by Fine for a number of years. However, the statute of limitations on those allegations has expired.
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A former Boston University hockey star and New York Islanders draft pick was recently charged with a sex crime in Boston.

This comes just weeks after our Boston criminal defense lawyer reported about New England Patriots wide receiver and special teams member Julian Edelman being charged with a sex crime in Boston as well.
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Facing sex charges in Massachusetts can be a life-altering experience. It can lead, in the short term, to job loss, loss of reputation, time in jail, the cost of posting bail, family problems and other sanctions. In the long term, it can open up a person to prison time, probation, registration as a sex offender and other serious consequences and criminal penalties.

Corey Trivino, a 21-year-old native Canadian, was recently kicked off the Islanders after news surfaced of his arrest. He pleaded not guilty to two counts of breaking and entering in the nighttime and to a charge of assault with attempt to rape in Brighton District Court.

The hockey forward is charged with following a young woman to her room and forcing his way into the room, Fox News reports. According to police reports, when the girl told him to leave, he began kissing and groping her. He allegedly left and came back two more times. The last time, he demanded to spend the night and she called for help, forcing him to leave.

Boston University police later arrested him in the dorm’s elevator and he said he lived with the girl. Police say he appeared intoxicated.

He was permanently removed from the hockey team’s roster and was ordered to stay away from campus housing. The news article reports he surrendered his Canadian passport and is scheduled to appear back in court in January.

As with the Edelman case, this situation may come down to whether the “victim” is, in fact, a “victim.” With athletes and celebrities, admirers may often involve themselves and then make unfair allegations.

In Trivino’s case, he came to the woman’s dorm room several times and she never felt threatened. Only after a third time of him coming over to her room did she call police. If there are no witnesses or roommates who heard shouting or some type of argument, it was probably safe to say she didn’t really mind his company.

Not until the third time did she call for help and police made a determination that the alleged crimes had occurred. Obviously, hockey at BU is the biggest sport on campus, and their players are widely known. This can make for great fanfare for the student-athletes, but it can also lead to victimization because of their celebrity.

For the everyday person, a sex crime can be as devastating or worse. A job loss today is a major financial hit and without the means to get re-hired, it can be devastating. Not only that, but facing prison time and registry as a sex offender for a term of years can make anyone realize that fighting a sex crime is critical.
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New England Patriots wide receiver and special teams member Julian Edelman appeared in Boston Municipal Court recently to address charges that he groped a woman on a dance floor, the Boston Herald reports.

A Boston sex crimes lawyer has seen how allegations that appear innocent on the surface can lead to serious charges and tough penalties against a defendant.
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Sex crimes in Boston not only can include the possibility of jail or prison time and probation. If convicted, a defendant could be forced to register as a sex offender. This means their photo, address, identifying marks such as tattoos and other information will be displayed on state and national websites. They must notify law enforcement where they’re moving from and where they’re moving to. If they don’t, they can be charged again.

A sex crimes conviction in Boston follows a person for life unless it is fought vigorously in the court system. Sadly, athletes and celebrities can sometimes be victimized because of their fame.

In Edelman’s case, he pleaded not guilty to a charge of indecent assault and battery. He is accused of reaching up a woman’s Halloween costume on the dance floor of a Back Bay nightclub.

A male witness said he watched the woman’s expression change on her face to “shock” after the player allegedly “grabbed her vagina,” a police report states. After the male witness threatened to “beat up” Edelman, he and the woman were kicked out of the club. Edelman was eventually removed from the club, but denied the allegations to police.

WEEI reports that Edelman said nothing during his initial court appearance. He was released on his own recognizance and ordered to stay away from the club and the alleged victim.

Edelman is a third-year player who was drafted in 2009 out of Kent State University. This season, he has three catches for 25 yards and 47 catches for 470 yards in his career. He has played mainly special teams for the Patriots this season, also returning kicks.

This appears to be a case of what will amount to a he said/she said situation, although there appears to be a witness who will testify for the state as well. It’s unclear whether the woman was flirting with Edelman before the alleged incident or if they were dancing close to each other before this allegedly happened.

Alcohol can sometimes be a factor and police must address that when they are called to a scene. If a person claiming to be a victim has been affected by alcohol and a night of drinking, investigators must consider that in deciding to file charges and it could influence a jury’s evaluation of the credibility of witnesses. This is common in cases of alleged domestic violence in Boston. When police arrive at a house, they sometimes assume the person considered the victim is telling the truth and the accused is lying.

But with sex crimes, the consequences are much more severe. Possible penalties are steep and the long-term impacts are great. Such charges must be fought aggressively.
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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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The Massachusetts Appeals Court in the case of Commonwealth v. Figueroa, decided on April 29, 2011, upheld a defendant’s conviction for indecent assault and battery in Chelsea, Massachusetts despite arguments that the court improperly allowed statements of the victim into evidence without providing an opportunity for cross examination.

In Figueroa, the defendant was working at Fairlawn Nursing Home in Leominster, Massachusetts and was alleged to have had sex with an eighty-six year old woman suffering from dementia. At trial, the victim did not testify, but two witnesses from the hospital did testify, including a witness that claimed to have witnessed the incident.

The legal issue surrounding this Massachusetts sex crime was whether statements that the victim made to another CNA describing the defendant’s actions, in having sex with the victim and indicating that the defendant claimed to be performing a test on the victim. The Massachusetts criminal attorney objected to these statements being admitted into evidence.

The Appeals Court stressed that an excited utterance is admissible if it is made following an occurrence or event that is sufficiently startling to render inoperative the normal reflective process and the statement was a spontaneous reaction to the occurrence or event.

Having found that the statement was admissible under the rules of evidence, the next issue for the Appeals Court was whether the statement could be admitted without providing the defendant an opportunity for cross examination of the speaker. Accordingly, the Court addressed the issue of whether the statements were testimonial.

The Court discussed that statements made in response to law enforcement questioning are testimonial per se, except where the statements are meant to secure a volatile scene or to establish the need to provide medical care. The Court went on to stress that it will evaluate whether or not a statement is testimonial based on whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

The Appeals Court concluded that the victim’s statement that the defendant did the test again indicates that the victim understood the question to be about her medical condition. The Court held that the inquiry is whether a reasonable person in the declarant’s position would objectively believe that the statement would be used in a criminal prosecution. The Court held that the declarant would not have reasonably believed her statements would be used to prosecute the defendant.

The decision of the Appeals Court is difficult to reconcile with the decision of the United States Supreme Court in Michigan v. Bryant and I would expect the SJC to reverse the conviction should further appellate review by sought. In Bryant, the United States Supreme Court held that the statement of a victim identifying the person that shot him was nontestimonial because the police were responding to an ongoing emergency.

In contrast, in the case of Figueroa, the victim was describing a past criminal act. The victims purpose in describing the actions of the defendant were not to obtain further medical treatment, but to describe what happened to her; the fact that the victim may not have known of the illegality of the conduct cannot negate that the objective purpose of the statement was to describe the criminal conduct of the defendant. Further, at the time of the statement, there does not appear to be any ongoing emergency as other hospital employees had come into the room. Additionally, the purpose of the victim being questioned was to determine whether the defendant had committed a criminal act in his care of the victim. Accordingly, when the victim was being questioned by the hospital employees, the employees were acting essentially as police officers trying to determine what had happened at a crime scene. In a footnote, the Appeals Court note that the employee testified that when she first spoke to the victim she did not think she would have to report anything to the police, but it was only after hearing the victim’s response that she realized she would be required to notify the police.

The result in this case deprived the defendant of his Sixth Amendment Right of Confrontation and I would expect the SJC to reverse if further appellate review is granted.
The Court’s decision undermines the basic purpose of the right of confrontation to allow for face to face confrontation of an individual accuser at a criminal trial.
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The Massachusetts Appeals Court revisited the doctrine of the first complaint witness in the recent decision of Commonwealth v. Aviles, decided on August 16, 2010. In Aviles, the defendant appealed his conviction of rape and indecent assault and battery arguing that the trial judge committed error of law in admitting evidence of multiple complaint witnesses. This ruling represents an important decision for criminal defense lawyers, defending sex crimes.

As a Massachusetts criminal defense lawyer, charges of sexual assault generally raise an evidentiary issue known as the first compliant doctrine. Under the first complaint doctrine, defined by the Massachusetts Supreme Judicial Court, in Commonwealth v. King, 445 Mass. 217 (2005), the prosecutor is only permitted to have the first person to whom the victim told of the alleged assault to testify at trial.

The rationale for the doctrine is to refute the notion that silence is a sign of lack of credibility of the victim. In other areas of criminal law, a victim would not be permitted to testify that she told someone else about a crime as the testimony would be inadmissible hearsay. Accordingly, the first complaint doctrine is essentially a special exception to the hearsay rule. The SJC in King limited the evidence to one witness out of concern that permitting numerous complaint witnesses to testify would deprive the defendant of a fair trial and unfairly enhance the credibility of the victim.

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