Boston Criminal Attorney Blog

In my previous post, I talked about the legal mechanics of how someone might be falsely accused in court of a crime. If you’ve been accused falsely of a crime, such as Massachusetts assault and battery, what are the steps you should take? Pay attention to the following:

1) Do not take the matter lightly, no matter how unimportant the charge may seem to you. Too many people think that unless the accusation is extremely serious, such as a Massachusetts sex offense, they needn’t take the matter seriously. Or they think, “I’m innocent, and the judge or jury will see this.” Not true. If you are charged and found guilty of the least serious of Massachusetts crimes, you will still have a criminal record, all your life. The record is open, public information, and will follow you everywhere. That is not good. Period.

2) Do not skimp on either the qualifications of the attorney you hire, and do not skimp on the expense of the attorney’s fee. Don’t go “bargain-hunting” for your defense attorney. Find an experienced and successful Massachusetts criminal defense attorney – and unless the fee is clearly unreasonable (e.g., 4 or 5 times what other lawyers charge,) then find a way to pay for it. Many criminal offenses carry a high risk of conviction, and trying to “save money” on a matter as important as this, is not a smart move. Make sure that your choice of defense attorney has handled – successfully – at least dozens of the type of case that you are facing. Too many people in such situations think that if they hire an attorney who handles these types of criminal cases only “now and again,” and hence charges a low fee, they’ll be alright. Thinking this way is a big mistake, and if you make either of these mistakes, you will probably find yourself in a much worse legal situation than you started out with. Ask the attorney for references. Ask anything that comes into your mind.

3) Document all the evidence that you can. Write down all the details that you possibly can – as soon as possible after the event. Record these details, no matter how small you may think they are. Your attorney will decide later what information is and isn’t needed. Preserve any physical evidence that you think your attorney might be interested in.

4) Make a list of all possible witnesses to the underlying event, detailing the names and contact information of any and all persons that could be witnesses. Write these names down on either index cards, or type them into an appropriate file on your computer and make backup copies. Aside from names and contact information, you should also record a brief background on any witnesses, what information he or she might be able to testify to – and why you feel that witness’ testimony would help you. Your attorney will decide what to do with this information.

5) If you are called or questioned by police, do not say anything to them until you have been retained by an attorney, and unless that attorney is physically present with you at the time of questioning. If you have not yet been arrested by police, you are usually free to leave any place where you are being questioned. The exception to this is if you are being temporarily detained by police. If you feel unsure what the police are doing, then ask them directly whether or not you are being either arrested or detained. In either circumstance, SAY NOTHING until your attorney is present. Even if you are arrested, you are not obligated to tell police anything other than your name, address and date of birth. Offering up additional information beyond that, will not help you. Leave it to your lawyer to answer or not answer any further questions.

I hope this outline has helped somewhat. If you need any further information about this subject, contact our office for a free consultation. We’ve been at this a long time.

One of the most upsetting things that can happen to anyone is to be falsely accused of a crime that you did not commit. While certainly police departments can sometimes unintentionally conclude that a person has committed a crime that in fact he or she did not commit, most of the time that false accusations are made, they are made by a party to a dispute, or within the context of a Massachusetts domestic violence case.

While it would be comforting to think that the criminal justice system and the courts will inevitably “see” that an innocent person is, in fact, truly innocent, and that it will exonerate anyone falsely accused, thinking this way would be extremely unwise. As a Dedham, Massachusetts criminal defense attorney, I can assure you: If you have been falsely accused of a crime, you must marshal all the evidence, assets, and legal resources that you have, to defend yourself vigorously against any charges.

The seriousness of any criminal charge will, of course, depend on the particular crime that a person is accused of, and the accompanying criminal penalties. As a Norfolk County Massachusetts criminal defense lawyer, I’ve defended clients that have been wrongfully accused of all kinds of offenses, from Massachusetts rape and sexual assault charges, to accusations of Massachusetts assault and battery, to Massachusetts kidnapping charges, to Massachusetts OUI./DUI offenses, to Massachusetts gun & firearms offenses. While some offenses are more serious than others, all Massachusetts crimes carry considerable penalties.

How does a person prove his innocence before a judge or jury? Well, first of all, the question of whether or not an accused will be formally charged with committing a crime is not decided by a judge. Surprised? Don’t be. As my website page dealing with Massachusetts Clerk-Magistrate’s Hearings (or Massachusetts Show-Cause Hearings,) discusses, often a party will accuse someone of committing a criminal offense through the mechanism of what is known as an Application for Criminal Complaint. That “party” (usually a police department or another person,) will complete this form and file it with a local Massachusetts District Court. At that point, the Clerk-Magistrate will send the accused a notice that a “Show-Cause Hearing” or “Clerk’s Hearing” has been scheduled to hear evidence in the matter. At this hearing, the Clerk hears evidence from both parties regarding the accusations, and renders a decision as to whether or not the accused should be formally charged with the crime alleged. In the event the Clerk-Magistrate finds probable cause exists, the accused will be formally charged with the crime alleged, and he or she becomes a criminal defendant. The matter is then prosecuted by the District Attorney. My office has successfully defended literally hundreds of these cases.

I’ll discuss what steps you should take in the unfortunate event you are accused of a crime, in Part Two of this post in a couple of days.

Here in Boston legal circles and in the Boston media, the past six weeks have been quite abuzz over the public corruption trial of former Massachusetts House Speaker Salvatore F. “Sal” DiMasi and his two co-defendants, Richard Vitale and Richard McDonough. DiMasi, Vitale, McDonough, and former Cognos salesman Joseph Lally were all indicted by the Boston U.S. Attorney’s Office on public corruption charges almost two years ago, for alleged influence-peddling and corruption in the awarding of approximately $20 million in software contracts by the state to a company then known as Cognos. The company has since been bought by IBM.

In the past month, the government spent almost three weeks putting on 24 prosecution witnesses against DiMasi and his two co-defendants. Those witnesses included former cabinet secretaries, Dimasi’s own former press spokesperson, DiMasi’s own personal assistant, and even governor Deval Patrick. From the perspective of a Boston Massachusetts criminal defense attorney, it was a withering experience. DiMasi’s lawyers did the best they could on cross-examination to weaken this testimony. After the government rested its case, DiMasi’s defense put on only three witnesses. On more than one occasion during the course of this trial, I have been asked by various media outlets in Boston to comment on this fact.

In some of those comments, I stated that the fact that DiMasi's defense offered only three (fairly weak) witnesses, after the prosecution spent in excess of three weeks putting on 24 witnesses against him - including the Governor, former cabinet secretaries, members of DiMasi's own legislative staff and DiMasi's own law associate - did "not bode well" for DiMasi. I believe that comment reflected the reality of this situation, I stand by the comment, and I believe that if I said otherwise, I wouldn’t be a very good Dedham Massachusetts criminal defense lawyer. Regardless, that does not mean that DiMasi or his co-defendants are guilty. I’ve stated previously to reporters and will say here again: DiMasi and his co-defendants are presumed to be not guilty, prior to a jury delivering any verdict. It is the government’s burden to prove that these defendants are guilty of the crimes they are accused of – not the other way around. No, this trial has not gone well so far for these defendants, in my professional view. But that does not mean that all is lost.

If I were defending this case, and my witness list were as sparse as the defense list was here, I would concentrate my efforts on forging jury instructions that were as strictly-worded, and tightly constructed as possible. By that what I mean is the following: the Federal statute that these defendants are charged with violating is considerably vague in the type of conduct that it makes “criminal.” The more difficult it is for the jury to find that the actions of these men violated that statute, and hence were “criminal,” the more likely it is that they would return a not-guilty verdict. It is the prosecution’s burden to prove not merely that the defendants’ alleged acts were not perhaps laudable, or not perhaps desirable in an ideal world – but that they were criminal – in relation to the applicable federal statute. The prosecution must prove this criminal guilt beyond any reasonable doubt. DiMasi’s legal team is comprised of experienced defense attorneys, and I am sure that is what they have done. No defense attorney can “manufacture” favorable evidence, or favorable witnesses. As an ethical defense attorney, you can only do the best you can, with the facts, the evidence, the resources, and the law in front of you.

Tomorrow morning, U.S. District Court Chief Judge Mark L. Wolf will deliver the jury instructions that prosecutors and defense attorneys in this case have fought vigorously over. Using those instructions, the jury will then deliberate the fate of these three men. Until then, let us remember this: The U.S. Constitution says these men, and all who are accused of crimes, are not guilty. “Presumed Innocent” should be known as a legal principle that is a cherished guardian to us all – not just the title of a Scott Turow novel.

Very recently, the Massachusetts Supreme Judicial Court (SJC) announced a ruling that will make it more difficult for defendants who are accused of a Massachusetts drunk driving/OUI offense to challenge the accuracy of Breathalyzer test results.

In a case that began in Greenfield District Court, a woman was convicted of operating under the influence in Massachusetts. When she was stopped by police, she agreed to take a Breathalyzer test, which produced a result higher than the maximum allowed in Massachusetts – an .08. Massachusetts is a “Per Se” state, meaning that breathalyzer or blood test results of higher than .08 for drivers over the age of 21, or higher than.02 for drivers under the age of 21, constitute prima facie evidence of driving under the influence in Massachusetts. At this woman’s trial, the Massachusetts breathalyzer test results were admitted into evidence, and the prosecution introduced records demonstrating that the particular breathalyzer machine had received an annual certification and was maintained and calibrated regularly as required under relevant Massachusetts regulations. The woman was convicted of driving under the influence.

She appealed her conviction, arguing that the maintenance and certification records introduced by the prosecution constituted witness testimony against her, and that under the Sixth Amendment to the U.S. Constitution, her lawyer should have been given the right to cross-examine the technician who had prepared the reports. The Sixth Amendment is often referred to as the “Confrontation Clause” of the Constitution , as it guarantees the rights of a defendant in a criminal trial to face his accuser and cross-examine that person in court.

But the SJC disagreed, ruling that Breathalyzer maintenance and certification records are not “testimonial”: in nature, and hence, do not trigger a requirement that the prosecution produce in court the person who prepared the records. Thus, the court ruled, there was no right to confront this person or conduct cross-examination of him/her.

As a Dedham/Boston Massachusetts OUI defense lawyer, this ruling strikes me as considerably inconsistent with the court’s fairly recent, and landmark, ruling in Commonwealth v. Melendez-Diaz. In that key ruling, the court ruled that in Massachusetts drug offense cases, prosecutors could not admit into evidence printed reports of drug analysis certificates that had been prepared by state drug lab chemists, without producing in court the chemist or technician who actually prepared the report(s.) The court’s reasoning was that these written reports were testimonial in nature, thus triggering a criminal defendant’s Sixth Amendment right of confrontation and cross-examination.

This ruling closes one more potential avenue of defense for drunk driving defendants, and only makes even more clear that anyone charged with a Massachusetts OUI offense, choose their lawyer very carefully. Expertise and experience always makes the difference in these cases – so don’t make a mistake in who you hire as your lawyer. We win these cases, because we know how to. If you’re facing a Massachusetts drunk driving charge, contact us for a free consultation.