Boston Criminal Lawyer Blog

SALEM CHILD ASSAULT AND BATTERY CASE PRESENTS A PLEA OF “NOT GUILTY” FOLLOWED BY AN ADMISSION OF GUILT

Sat, 04 Feb 2012 00:24:43 -0500

The Boston Criminal Lawyer Blog has long been telling you that the law does not really recognize “self-help” solutions to problems.

Particularly when said self-help is a crime.

Some folks seem to still believe that if a person has a good reason to commit a crime…such as revenge…then the court will look the other way. It doesn’t.

Let’s take a case that dominated the news on Friday. It hails from Salem. A woman was brought to court on charges that she boarded a school bus and hit a 5-year-old girl as apparent pay-back for hitting her son previously.

The woman, Dominique Hans (hereinafter, the “Defendant”) was arraigned Friday in Salem district court, charged with assault and battery and disorderly conduct. She pleaded “not guilty” and was released after a bail hearing.

Bail was set in the amount of $1,000 and she was Ordered by the court to have no contact with the alleged victim or her family and to stay away from the bus stop.

The Defendant, a bit more vocal than most, then made statements to the press that she merely “confronted” the girl for hitting her 6-year-old son, but did not hit her. She does say, though, that she held the girl’s face to get her attention.

Apparently, the Defendant’s ire was worsened when, she says, the school officials ignored her complaints that the kindergartner had hit the little boy.

Attorney Sam’s Take On Massachusetts Assault And Battery

Well, there are a couple of points to discuss in this matter.

BOSTON’S SUPREME JUDICIAL COURT UPHOLDS PREVIOUS RULING AND REVERSES GUN CONVICTION

Thu, 02 Feb 2012 06:22:50 -0500

As you have learned from reading this daily Boston Criminal Lawyer Blog, criminal laws are getting more and more complex. Changes in the laws take place all the time. This is but one of the reasons that I urge you to retain the advice and aid of an experienced criminal defense attorney when you find yourself an unwilling guest in the Halls of Justice…or, better yet, before you even enter the door.

Let’s take a crime of possession for example. In Massachusetts, not so long ago, the Commonwealth could present evidence that a gun is operable or that illegal drugs are present simply by submitting a certification from and expert into evidence. Nobody had to testify. Just the paper saying either the gun was operable or that what the police believed was cocaine was, indeed, cocaine.

Have you ever tried to cross examine a piece of paper? It is very difficult to do.

Finally, the courts ruled that a witness needs to testify to authenticate the document and answer questions about it. This is because a criminal defendant has the right to confront witnesses against him or her. How do you confront a piece of paper? Let alone the hearsay objections…!

This was a pretty major change in the law and has shaken up a number of criminal prosecutions. One such case was Commonwealth v. Barbosa, and it was handed down by Boston’s Supreme Judicial Court on Tuesday. In that case, the defendant was convicted of possession of a variety of things he was not supposed to have. He had a gun, he had ammunition and he had marihuana. Of course, what he did not have was a license to have any of it. The defendant appealed arguing, among other things, that the Commonwealth should not have been able to rely on simply submitting the certificate on the gun without a live witness. Further, the defendant argued that the fact that the Commonwealth was allowed to do so deprived him of his right to a fair trial. In other words, it was not a “harmless error”.

The SJC agreed.

Citing the earlier holding in Melendez-Diaz v. Massachusetts, the court held that because of the import of the certificate of examination, the evidence that showed the gun was operable, to the overall prosecution, this could not be considered “harmless” and so the conviction for the gun possession had to be reversed.

Attorney Sam’s Take On The Need For Experienced Criminal Defense Attorneys

Let’s take a scenario.

MASSACHUSETTS POLICE CHASE APPREHENDS JUVENILE WITH PROBATION VIOLATIONS

Wed, 01 Feb 2012 10:41:48 -0500

You know how the Boston Criminal Lawyer Bog keep telling you that if the police are after you to stop...you should stop?

Here is yet another example of a young man who did not see it quite that way. Now, he has only increased his criminal justice woes.

Of course, our 16-year-old Westford gent (hereinafter, the "Defendant") had some outstanding problems t begin with. More specifically, there was an outstanding warrant for his arrest due to a probation violation in a felony matter.

If you are not going contact an experienced criminal defense attorney and arrange your return to court (which you should), it might be wise to lay low for awhile.

He didn't.

According to law enforcement, he was driving at speeds of up to 100 miles per hour Monday night. First, Westford police tried to flag him down. No go.

The car chase went from Westford to Weston.

Westford police finally requested that Massachusetts State Police in Concord help them track down the Defendant on Route 3. The state troopers gave chase, using of police vehicles as well as overhead support had to be used.

The chase continued to Route 128, the Metro Boston State Police joining the event and on to Route 30. According to police, this is where the chased ended...when the Defendant crashed into a guardrail.

He was then taken into custody.

He was held overnight without bail by police before he went to court.

Attorney Sam’s Take On Police Chases

The Defendant, simply by not stopping in a chase he was destined to lose, has worsened his situation.

RECENT NEWTON CHILD PORNOGRAPHY ARRESTS AND Criminal Offender Record Information (CORI) (Part Two)

Tue, 31 Jan 2012 09:13:43 -0500

As the Boston Criminal Lawyer Blog indicated yesterday, officials in Newton are reviewing their hiring procedures in the wake of the two recent arrests relating to child pornography. It may be worth noting that these were arrests...not convictions...but, then again, to most...maybe not.

Anyway, Mayor Setti Warren has announced, “We’re going to look at everything,...We want to take a look at what options there are inside the city, outside the city, and within the balance of the law.’’ He went on to say that the sessions will look at not only additional screening of potential employees, but also at their training and supervision on things like how complaints will be handled. He added that the findings will be reported to the public.

While, for the most part, this sounds reasonable, there are still issues. For example, Newton city did a criminal history check on the two recent arrestees before they were hired. Said history check includes checking the state’s Criminal Offender Record Information ( “CORI”). Further, the CORI check is repeated every three years. No problems were found in either case. While some say that databases outside the Commonwealth should also be checked, doing so would apparently not have prevented the instant situation; neither man had any record of criminal history.

So…where do we go from here?

Attorney Sam’s Take On Criminal Offender Record Information Searches

Let’s do what any experienced criminal defense attorney has to do on a daily basis…separate, to some degree, what one is concerned with, depending on which hat one is wearing at the time. For example, as a citizen, I am against crime. As a defense lawyer, I defend alleged criminals (I, semi-jokingly, prefer the term “the misunderstood amongst us”). As you know, of course, I have strong concerns about the criminal justice system which are consistent with both hats…but that is a topic for another day.

The topic here, for today at least, is the CORI check

Let’s start with the prevention hat. How can we make sure that potential predators do not end up with jobs through which they can victimize the innocent? Well, sure, CORI can be a start. Further, I agree that, if you are going do CORI checks, it makes sure not to limit yourself to this state…particularly if the subject has ever worked or lived in a different state.

“Well, what information does CORI give you?”

ANOTHER NEWTON TEACHER IS CHARGED WITH CHILD PORNOGRAPHY (Part One)

Sun, 29 Jan 2012 18:09:59 -0500

For the second time in two weeks, residents of Newton, have been treated to the news of a teacher being charged with possession of child pornography.

This time, it is Peter Buchanan (hereinafter, the “Defendant”), 47, a 10-year city employee who most recently worked in the Newton Public Library’s audio visual section. The State Police say that the Defendant downloaded and shared the material. The Defendant has pleaded not guilty to three counts of possession of child pornography and two counts of distribution of material depicting a child in a sexual act.

Yes, well, we know how seriously we all consider that...!

Anyway, the fact scenario in this case is a bit more commonplace than the one a week or so ago. In that one, David Ettlinger, a well-respected and much loved second grade teacher at the Underwood Elementary School was charged with actually sexually assaulting a girl and filming it. This would be, among other things, actually creating the child pornography. In fact, investigators in that case claim that he posted his works to an international website that trafficked in child pornography .

Usually, as in the case with the Defendant, the charges are simply possessing and more remotely distributing. Not that the allegations are generally treated less seriously.

The community, of course, is in a uproar and seeking who else can be blamed other than the two alleged perpetrators.

Criminal investigators have said the two cases are unrelated, but the cases have sparked a round of soul-searching among city officials and residents and drawn pointed questions from parents about what more public institutions can do to protect their children. While the mayor and school superintendent have pledged to review screening procedures, other officials are shrugging their collective shoulders admitting that both accused gentlemen had successfully passed background checks and the usual “vetting”.

Of course, something is clearly wrong here. As it turns out, at least according to the Commonwealth, beloved Mr. Ettlinger was living a dual identity. He was also known as “ee1”...an internet identity who allegedly advertised graphic videos on the Dreamboard Website.

But, as Susan Brown, a family therapist who’s daughter had him as a teacher, points out, “There was never an inclination of it [activities outside of school on which he took students] being weird”. She also explains that people gravitated toward him because he always seemed happy. “If he was older and looked different and wasn’t handsome and wasn’t friendly,’’ she added, “people would be reacting differently.’’

Attorney Sam’s Take On Easy Answers That Put Us All At Risk

It is not unusual to read this Boston criminal lawyer telling you that the “quick and easy” answers that are often so politically expedient seldom solve criminal justice problems.

In fact, as I keep spouting, they generallt make them worse.

FALL RIVER DENTIST IS CONVICTED OF WHITE COLLAR CRIMES, ASSAULT AND BATTERY

Wed, 25 Jan 2012 20:04:29 -0500

This is a fact scenario you don’t see every day. It also brings forth another Massachusetts criminal defendant who likely thought he would never see himself being prosecuted for felony crimes.

Michael Clair, 53 years of age and hereinafter the “Defendant” was once a practicing dentist in Fall River. Now, he lives in Maryland. Soon, however, he may be back in the Commonwealth residing in involuntary government housing.

You see, the Defendant has pleaded guilty to an apparent scheme in which he was involved while practicing in Fall River.

Folks would go to the Defendant to get, among other things, root canals done. And the Defendant would give them root canals. However, it would appear that he used some unknown cost-cutting measures. For example, he would substitute paper clips instead of stainless steel posts, according to Boston's Attorney General.

Perhaps that would not have been so bad if he had shared the savings. However, not only did he not tell his patients, but he also failed to mention it to Medicaid. In fact, he is said to have billed Medicaid for the cost of the stainless steel posts he was supposed to have used.

Presto! Change-o! The dentist became the Defendant.

Facing Medicaid Fraud, Grand Larceny and Assault and Battery charges, the Defendant has pleaded guilty and is awaiting sentencing. Incidentally, he has also pleaded guilty to tampering with evidence, intimidation of a witness, and illegally prescribing hydrocodone, Combunox, and Percocet.

All around bad news for the Defendant.

But, wait! There's more!

This situation apparently began coming to light when the Defendant was investigated, in 2002, from the Medicaid (MassHealth) program. The Defendant was suspended from the program. Determined not to be a "quitter", after his practice , Harbour Dental, hired other dentists who had not been ejected from the program, he apparently picked up where he left off. He began filing claims again, using their information for services he provided. According to AG Coakley's office, this totaled about $130,000 over the course of two years.

In March 2010, a Bristol County grand jury indicted the Defendant and he was arraigned in April. He was released and ordered not to have any contact with the complainants in the case.

By November, he was facing the new charges of tampering with evidence and intimidating a witness.

BOSTON’S FEDERAL APPEALS COURT UPHOLDS WHITEY BULGER KILLINGS VERDICT AGAINST THE FBI.

Tue, 24 Jan 2012 06:26:22 -0500

As James “Whitey” Bulger awaits trial for his part allegedly played in the murders of 19 people, the government’s day of judgment has already arrived.

Boston’s federal appeals court has upheld multi-million dollar judgments that had been awarded when the government was found liable for the deaths of three people allegedly murdered by Mr. Bulger. On Friday, the United States Court of Appeals for the First Circuit upheld the awards of $1.3 million, $350,000 and $1.1 million for the families of Debra Davis, Deborah Hussey and Louis Litif, respectively.

The court agreed with the trial court that the FBI showed “wildly reckless behavior” in the use of Bulger and his associate, Stephen “The Rifleman” Flemmi, as informants and shielding them from prosecution.

Steve Davis, the brother of Debra Davis, told The Boston Globe the appeals court’s decision shows his sister mattered.

Attorney Sam’s Take On Governmental Abuse And Double Standards

This was a civil lawsuit. In other words, the plaintiffs, private citizens, brought lawsuits against the government in order to receive damages…money. It was not a criminal prosecution.

There are various extra hoops an individual must jump through in order to bring a lawsuit against a state or federal government or one of its agencies. However, these hoops are nothing compared to the hoops one must jump through in seeking justice in the criminal courts against such an entity.

“I DON’T THINK MY CRIMINAL DEFENSE LAWYER IS DOING HIS JOB ON MY BEHALF. AM I STUCK?”

Mon, 23 Jan 2012 06:51:02 -0500

Let’s first look at a recent United States Supreme Court case in point.

On January 18, 2012, the Court rendered its decision in Maples v. Thomas. The case wasa criminal appeal from a gentleman who had been found guilty of murder and sentenced to death in Alabama state court. Later, he sought post conviction relief in state court under Alabama Rule 32, alleging, among other things, that his trial attorneys failed to give him the effective assistance that is guaranteed by the Sixth Amendment.

Part of the problem was that this petitioner had missed the deadline before which such an appeal could be filed. Under the local law, his rights for such an appeal were therefore waived. The question became whether the facts of this particular case were enough “cause” to excuse this procedural default in state court.

Last week, the Court held that he had shown such cause as he had been abandoned by his lawyer and left unrepresented during the time he would have had to file. The Court further found that he lacked any knowledge of such deadlines on his own.

Attorney Sam’s Take On Incompetent Counsel

Being prosecuted for a crime, whether you are guilty or innocent, is hell. Nothing is going to change that. However, it is the belief of this Boston criminal lawyer that one thing that can make the experience more palpable is to have a defense attorney in whom you have faith and feel comfortable with.

“What if my case has been pending for awhile? Isn’t it too late to switch?”

Child Porn Charges Against Second Grade MA Teacher

Wed, 18 Jan 2012 11:54:19 -0500

According to media reports, David Ettlinger—a second grade teacher at Newton public schools—was arrested this week on child pornography charges. Recent updates indicate that Ettlinger, 34, is now also facing charges of indecent assault of a child under the age of 14.

Several sexualized images of minors were allegedly found on the teacher’s home computer at his Commonwealth Avenue residence. Image(s) of a 12-year-old family friend, as well as a video of Ettlinger having sexual contact with a female minor, were also allegedly discovered on the laptop, which was seized by investigators. According to news reports, multiple pairs of young girls’ underwear were found in his residence as well

The Underwood Elementary School and the surrounding community are quite alarmed about the charges, but no evidence has been found that Ettlinger’s students have been victimized. Reports suggest that Ettlinger, who has taught with Newton public schools for 12 years, otherwise appears to have a clean criminal record. He was apparently a popular teacher at the school.

Child pornography crimes are aggressively prosecuted by state and federal authorities in an effort to protect susceptible minors. Knowing Purchase or Possession of Child Pornography is one of two major pornography crimes in Massachusetts. A first offense is punishable by up to 5 years in a state prison and up to $10,000.

If you are facing charges of child pornography or indecent assault on a child, you should contact an experienced MA criminal defense lawyer.

Newton, Mass. teacher faces child porn charges, NECN.com, January 18, 2012

Second-grade teacher at Newton school faces child pornography charges, Boston.com, January 17, 2012

Newton teacher faces 2 sets of child porn charges, Boston.com, January 17, 2012

A BOSTON CRIMINAL LAWYER DISCUSSES DR. MARTIN LUTHER KING AND CREDIBILITY

Mon, 16 Jan 2012 21:49:45 -0500

Attorney Sam's Take On Martin Luther King And Credibility

In the courts of justice, whether they be criminal or civil, the issue of
credibility is always imperative. Technically, of course, I have already
mis-stated the law. This is because a person's credibility is not considered an
issue unless that person testifies as a witness.

At least, that is what the law says. However, I am referring to reality.

As you may know, this Boston criminal lawyer has years of experience
as a lecturer and trainer of law students and new lawyers alike. What I tell
my students is that anyone who is in front of the jury has their credibility
being considered by jurors throughout the trial. This is true whether the
person is a lawyer or a witness. Whether that person is testifying...or simply sitting down with counsel. The jury is always watching.

And, be assured, it is critical to the particular cause at issue.

However, credibility is a tricky thing. It is often effected by our various
prejudices and preconceived notions.

"Sam, weren’t' t you going to be writing to Dr. King today instead of just pontificating about how much you know about trials?"

Yes and no. There are many lessons we can learn from Dr. King and his
experiences. And some of them have to do with the criminal justice system.
After all, he took on the establishment. He broke laws...laws we now realize
were unjust. However, it took folks like Dr. King to challenge them in order
for us to begin our path of understanding equality.

A path that has not yet come to an end, I might add.

Dr. King served time in jail. No, he was not a violent felon, a drug dealer or
drunk driver. He did, however, commit crimes that were in existence at the
time. In fact, he wrote from jail, one of the his classic works now referred to
as the "Letter From A Birmingham Jail".

Attorney Sam Sends Regrets

Thu, 12 Jan 2012 09:44:57 -0500

Even a Boston Criminal Lawyer has families...divorced or not.

Unfortunately, due to a death in the family, I am not available to post this daily blog as hoped this week.

I will be back on Monday...with a salute to the late Dr. King.

Best regards, and thanks for reading,

Sam Goldberg

A BOSTON CRIMINAL LAWYER DISCUSSES MA MOTOR VEHICLE CELL PHONE USE LAWS

Mon, 09 Jan 2012 15:47:09 -0500

As you may be aware, there is a legislative effort underway today to change the laws regarding the use of cell phones while driving in Massachusetts.

Most people seem to be for it.

But is there really a need for it?

Attorney Sam's Take On Redundant Criminal Statutes

The first statute, the one in effect now, was passed around a year ago. That law made it illegal for anyone to text while driving and illegal for anyone 18 years or under to use a cellphone at all while driving.

Apparently, folks are not satisfied with the results.

SALEM MOTHER OPENS THE DOOR TO HER SON’S PROSECUTION AND DCF “HELP”

Thu, 05 Jan 2012 22:43:00 -0500

Well, in a world in which some mothers who lose control resort to the killing of their children...I suppose you could call this Salem mother’s approach refreshing.

According to the Commonwealth, she called the police on the kids. Apparently, her five kids had been fighting all day. Particularly that 15-year-old son and the 16-year-old daughter.

Fight, fight, fight! Bicker, bicker, bicker!

Instructions from mom? “Arrest them both...I can’t take this anymore!”, she cried.

Well, the officers did not quite do that. They did, however, issue a summons to the 15-year-old for hitting his 8-year-old sister.

They call that “assault and battery” in the Halls of Justice, you know. It’s a good thing they weren’t in school...it would also be Massachusetts bullying! Actually, just the arguing would likely trigger that charge.

Well, the kids were not brought to involuntary Commonwealth housing.

Yet, that is.

You see, the officers also notified the Department of Children and Families about the situation in the home.

Strap yourself in, mom! You and the kids are in for a wilder ride than you expected!

Attorney Sam’s Take On DCF And Juvenile Prosecutions

I am going to go out on a limb here and guess that mom did not really want the kids to be arrested. She likely called the police in hopes to calm the pandemonium . Maybe it even worked…for the moment.

But mom is now learning that that the “help” she sought does not stop there.

MASSACHUSETTS STATE TROOPER FACES CRIMINAL CHARGES FOR ALLEGED EXTORTION AND THREATS

Wed, 04 Jan 2012 21:53:32 -0500

John Analetto, 48, of Belmont is another gentleman who’s New Year’s weekend did not go terribly well. On Saturday, the 19-year- state police veteran bid his family adieu as he donned a new role in the criminal justice system.

He is hereinafter referred to as the “Defendant”.

Arrested on Saturday, the Defendant is being held in federal custody and is scheduled to face a probable cause hearing on Friday. He has been charged with extortion after allegedly threatening to kill a bookie and sexually assault his mother.

He is looking at a possible 20 year sentence if convicted.

The FBI says that the Defendant had loaned his bookie $24,000 last fall in return for a piece of the action. Apparently, there is an unfortunate audio recording from December wherein the Defendant warns the bookie (actually, and FBI informant), “Will I kill you? Ya, I’ll (expletive) kill you” when the Defendant faced not being paid back.

Last week, things got a bit more violent when the Defendant allegedly began head-butting and slapping the informant. An affidavit submitted by the prosecution also alleges that the informant was not the only target of the Defendant’s threats in that he had also left a message for a bettor, saying, “We’d appreciate if you contact the right people and start doing the right thing. Or 2012 isn’t going to be too good for you. ... So Happy New Year to you and your mom and dad and family.”

The past two months have not been kind to the Massachusetts State Police and public corruption. For example, the Defendant now joins the ranks of a Captain who was arrested after leading Saugus officers on a chase down Route 1 and faces Massachusetts drunk driving charges and another Trooper who was found with an alleged prostitute.

Attorney Sam’s Take On Massachusetts Debt Collection And Remedies To
Theft

With all the political debate about casinos, state lotteries and other types of betting in the Commonwealth, one might wonder when betting is illegal and when it is encouraged. However, you probably do not need an experienced Boston criminal lawyer to tell you that threatening to kill folks and sexually assault their mothers is generally frowned upon.

A BOSTON CRIMINAL LAWYER REVIEWS THE RATIONALE BEHIND MASSACHUSETTS BAIL HEARINGS

Tue, 03 Jan 2012 22:10:34 -0500

2011 is now history in the Commonwealth of Massachusetts. In preparation for the changing of the year, a group called “AboutBail” compiled a list of some of the highest bail amounts throughout the country in 2011.

Let’s take a look, changing the actual names of the defendants, at seven of the ten listed:

1.19-year-old Gary Gunplay from Elgin, Illinois. He was a “known” gang member facing nine counts of felony shootings. With cases pending, Gary was stopped during an alleged traffic violation. Outstanding warrants were discovered and, despite trying to flee, he was caught. With two loaded handguns. Bail $2,250,000

2.19-year-old Gary Grabby of Glendale, California was arrested for sexually assaulting two brothers, ages 8 and 3, while babysitting. Bail: $2,700,000

3.Dave Daddykiller was a Chicago, Illinois gentleman accused of helping another gentleman kill Dave’s father. Dave had met his pal while serving time and the two allegedly bound, gagged and killed his father. The alleged murder was also found to be a violation of parole. Bail: $3,000,000, until the parole violation hearing, when he was held without bail.

4.Sheldon Shopper of Chicago, Illinois, was accused of stabbing three people at a Walmart. Under the influence of narcotics, he is claimed to have entered the store with a nine-inch butcher’s knife and stabbing three people with it. He was charged with attempted murder and aggravated assault. Bail: $3,000,000.

5.Billy Bullets was a Knoxville, Tennessee man who was arrested for theft, aggravated assault, felony murder and first degree murder. Apparently, Mr. Bullets went to a pawn shop and asked to see an unloaded shotgun. “seeing it” ended up resulting in his loading it with ammunition he had brought with him and shooting the employee who was helping him. Bail: $4,000,000.

6.Ricky Robber was a Fayette County, Indiana gent who actually failed at his attempt at robbing a CVS store. According to the government, he wore a wig, glasses and mustache (and a gun) at the robbery scene. They also say that said items were found in the home in which he was staying...along with blood-spattered clothing and a gun that “may have” been used to murder five people. Believed to be a flight risk, bail was set at $5,000,000

7.Dilbert Diplomat was a well-known French national and former head of the International Monetary fund. He was grabbed on charges of attempted rape, sexual abuse, forcible touching, unlawful imprisonment and a criminal set act. The complainant used to be an unknown Manhattan housekeeper. His bail conditions amounted to $6,000,000
The government then dropped the charges against him because they decided the complainant was not believable..

Attorney Sam’s Take On The Rationale Of Bail

Looking at these rather high bail amounts might give you the idea that there is little, if any, consistency when it comes to the mandating of bail amounts. For example, one would expect the bail for murder to be higher than someone accused of attempted robbery or even sexual assault.