Massachusetts Criminal Defense Lawyer Blog

Brawl in Taunton Broken Up By Off-Duty Police Officer results in Massachusetts Assault and Battery charges

November 15, 2011 | by Michael DelSignore

An off-duty Mansfield police officer was credited with breaking up a daylight brawl between three men who had tire irons and a knife, the Taunton Daily Gazette is reporting.

Self-defense is one of the most commonly acknowledged theories of defense portrayed on television criminal shows and in novels. But in assault and battery charges in Attleboro, can also be a legitimate defense. In this case, the presence of weapons will complicate the defense and will likely enhance the charges faced by the defendants.

If someone is attacked, either with fists or weapons, they have a right to defend themselves. If you are arrested, the skills of an experienced Massachusetts criminal defense lawyer can aid in explaining this to a jury. Too often, police just make an arrest, regardless of who is right or wrong at the scene.

When violent acts take place, police can sometimes have a tough time sorting out the pieces. If the victim and suspect are both pointing fingers at each other, it can be independent witnesses, video surveillance or even physical evidence that can point to the truth. A skilled lawyer can get to the bottom of the case.

In this case, according to the newspaper, Michael Dutra, 56, and John Carveiro, 48, allegedly told police they thought Reginald Jenkins, 44, had stolen $50 they accidentally dropped outside a package store. When they realized the money was missing, they remembered seeing Jenkins reach down in the parking lot and pick something up, the police report states.

They drove around hoping to spot Jenkins and they found him walking in a nearby parking lot a few blocks away. They allegedly both got tire irons from their pickup truck and began swinging at Jenkins. He also got a tire iron from the pickup truck and tried to defend himself, but was hit in the head and arm. He was also stabbed in his back by someone carrying a knife.

Police say that an off-duty police officer from Mansifled, Jeffrey Danner, was driving nearby and saw the brawl as it took place. Once Jenkins hit the ground, Danner pulled up, exited his vehicle, pulled out his badge and a handgun and ordered them to stay put.

Carveiro was charged with two counts of assault and battery with a dangerous weapon, two counts of carrying a dangerous weapon and one count of disorderly conduct.

Jenkins is charged with assault with a dangerous weapon, disturbing the peace and disorderly conduct. The newspaper didn’t have details of the charges Dutra faces.

In this case, according to the newspaper and police reports, it appears clear that Jenkins was the victim and yet he faces charges. Had the other two men not allegedly stopped to start the fight, he wouldn’t have been involved. And after they grabbed weapons, he would have been foolish to stand by and allow them to beat him.

One can only hope that Jenkins gets an experienced and dedicated Massachusetts criminal defense lawyer to straighten things out with the prosecution in order to avoid any long-term consequences as a result of these charges.
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Legislation requiring prosecutors to consent to a bench trial in response to the Boston Globe special OUI report would be unconstitutional

November 13, 2011 | by Michael DelSignore

In response to the Boston Globe Special Report on OUI bench trials in Massachusetts, the Globe reported that prosecutors are seeking legislation requiring prosecutors to consent to a bench trial. Assuming this report is accurate, this legislation would have to apply to every type of criminal case as legislation relating to criminal procedure cannot be crime specific. This legislation if proposed would be an unconstitutional violation of a defendant’s right to a fair trial under the Sixth Amendment.

The apparent aim of the legislation is to combat the perceived high rate of not guilty verdicts in Massachusetts OUI bench trials. This legislation would clearly be unconstitutional under the Sixth Amendment. The Sixth Amendment provides that a defendant in a criminal case enjoys certain rights: These rights include the right to a speedy trial and the defendant enjoys a right to a trial by jury. The use of the word “enjoys” in the Constitution provides strong textual support for the argument that a defendant can waive this right.

The right to a trial by jury was added to the Bill of Rights because the Framers of the Constitution feared that judges would not be impartial to defendants because their salary depended on the rule of the King. The original intent of the jury trial was to limit the power of Government and ensure that citizens judged citizens. The right to a jury trial is not Constitutionally required in all cases; in minor offense, with no possibility of jail time, there is no Constitutional right to a jury trial.

Comments on part II of Boston Globe’s special report on OUI bench trials

November 6, 2011 | by Michael DelSignore

The Boston Globe published its second of three installments on drunk driving bench trials in Massachusetts. The Globe claimed to have researched the number of not guilty verdicts from selected judges that were targeted by prosecutors and published statistics of their rate of not guilty verdicts. Click here to read Part II of the Globe’s special report. This special report focused primarily on Plymouth County OUI cases but also targeted many of the same judges criticized in the first part of its report. To read my Blog regarding Part I of the special report, you can click here.

The Globe’s article is clearly motivated to further the political agenda of prosecutors. An example of this is that the Globe was critical of one Taunton District Court judge who finds that the lack of video tape evidence can be used against the Commonwealth when determining whether the standard of proof beyond a reasonable doubt is satisfied. Instead, the Globe purports to adopt the reasoning of the State police that video is not used because it does not show the subtle signs of someone under the influence of alcohol.

While the Globe compared Massachusetts to other States in its rate of bench trial not guilty verdicts, the Globe did not consider that other police departments around the country routinely record not only the booking but have police cruiser camera. The suggestion that video should not be used because it may not be incriminating as the State police would like is clearly an attempt to keep relevant evidence from a judge or jury and keep control of the evidence in the hands of police officers. With video in OUI cases, there would be objective evidence, precluding officers from overstating and exaggerating conclusions that a motorist is under the influence of alcohol. Instead, without video, the only method to challenge an officer’s opinion is through cross examination.

Patriots Wide Receiver Edelman Charged with Sex Crime in Boston

November 5, 2011 | by Michael DelSignore

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.

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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Bridgewater College Students Accused of Operating Drug Ring

November 2, 2011 | by Michael DelSignore

The Enterprise News is reporting that four Bridgewater State students, two of whom are football players, are accused of operating a “drug house” operation off-campus.

Drug crimes in Bridgewater and throughout Massachusetts are serious charges as the government continues its war on drugs. Lawmakers have continually made penalties more extreme and in drug cases, police and prosecutors can often tack on many charges for a single episode.

In situations where investigators accuse people of operating a criminal enterprise out of their homes, Massachusetts criminal defense attorneys will look at fighting the legality of the search warrant. A search warrant is obtained by police officers and signed by a judge when they believe they have proof that a crime is going on inside a person’s house or business.

While detectives may be able to obtain a search warrant, take evidence from a house and file criminal charges, success in challenging a search warrant often leads to a reduction or dismissal of charges.

If detectives misled the judge who signed the warrant by providing false facts or if they didn’t quite know what they had at the time, a trial judge can nix the search warrant after the fact, which typically eliminates the evidence that was collected.

This is another reason to never make statements or admissions to police, as you never know what evidence will be in play at trial. If evidence is suppressed after motions by a defense attorney, but the defendant confessed, the prosecution could still attempt to go to trial. If there is no statement and no evidence, there is no case.

In the Bridgewater State case, Patrick McGirr, 20, of East Longmeadow, Tyler Trainor, 21, of Saugus, Eric Eldred, 21, of Methuen and Bradley Head, 21, of Ashby, were arrested. The state believes McGirr was the “ringleader” and he was held on $25,000 bail after an arraignment in Brockton District Court. Bail for the others was between $1,5000 and $2,500.

Police have alleged the group was selling drugs such as marijuana to cocaine and Perc30 out of their off-campus apartment. Police said they investigated for the last month before making the arrests.

Investigators stopped McGirr’s vehicle recently after obtaining a search warrant for it. Detectives said they found one ounce of marijuana and 10 Oxycodone pills inside a hidden compartment. Police then searched the apartment and allegedly found cocaine, Oxycodone pills, marijuana, $7,000, a heat sealer, digital scale and other evidence the police believe were related to drug dealing.

The news article doesn’t state why detectives searched the home after searching the vehicle. The Easton Journal reports that detectives had a search warrant for the apartment as well. The arrests were made by the WEB Task Force run by officers from Bridgewater, Bridgewater State University, East Bridgewater, West Bridgewater and Whitman.
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United States Supreme Court to address whether “a lost plea opportunity” can constitute ineffective assistance of counsel under the Sixth Amendment

October 31, 2011 | by Michael DelSignore

The United States Supreme Court is scheduled to hear arguments on October 31 2011 in the case of Lafler v. Cooper and Missouri v. Frye, that raises the issue of whether an a criminal defense attorney in Massachusetts, or any other state, can provide ineffective assistance of counsel during a plea negotiation when a defendant later receives a fair trial.

In the case of Cooper, he received ineffective assistance of counsel because his attorney told him that he could not be convicted of assault with the intent to murder, because the shots he fired were below the victim’s waist. Based on this advice, Cooper claims that he went to trial and received a sentence eight years greater than the sentence he would have received had he accepted the original plea offer and was given proper advice as to the elements of the offense. To read the brief of Defendant Cooper you can click here.

In the Frye case, the defendant claimed he received ineffective assistance of counsel because his attorney did not communicate a plea offer to him which expired; the defendant received a harsher sentence when he entered an open plea in court. Under the proposed plea offer, that was not communicated, the prosecutor offered to allow the defendant to plea to a misdemeanor with a ninety day jail sentence recommendation. The defendant ultimately received three years as part of an open plea but claimed prejudice in being deprived the opportunity to plea to the misdemeanor offense as a result of counsel ineffective assistance in not communicating the offer. You can read the filings in the Frye case by clicking here.

Boston Globe’s unfair attack on Massachusetts judges in drunk driving cases

October 30, 2011 | by Michael DelSignore

Massachusetts judges were unfairly attacked as being lenient on drunk driving charges in a recent Boston Globe report released today. The special report was the first of a three part series written by Marcella Bombardieri, Jonathan Saltzman and Thomas Farragher.

The Boston Globe claims that judges are lenient on Massachusetts OUI cases during bench trials. The article states that the Boston Globe looked through court records, listened to tapes of courtroom proceedings in order to make its assessment. While the Globe claims to have uncovered a widespread problem, as a Massachusetts OUI lawyer, I believe that the report presents an unfair attack on Massachusetts judges.

To obtain case names the Globe would have had to rely on prosecutors pointing out cases that they believe they should have never lost before a particular judge. Overlooked in this fact, is that often the police report does not tell the entire story of what happened during an arrest. Police officers do not always remember exactly what happened when writing the report and sometimes exaggerate, overstate and embellish in the police report. Further, judges are not reading the police report but are hearing the officer testify live and under oath.

Accused Burglary Suspects Held on $25,000 Bail in Taunton District Court

October 30, 2011 | by Michael DelSignore

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.

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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Drinking Responsibly on Halloween as a Massachusetts OUI charge can have severe consequences

October 29, 2011 | by Michael DelSignore

Halloween is approaching, as we can tell from the crisp weather, the black and orange decorations and the costume advertisements that seem to pop up this time of year.

And while it’s primarily a holiday for children to go door-to-door and try to get as much candy as they can, let’s face it, it’s a holiday for adults, too. During the weekend there will be parties where friends get together with outrageous costumes to try to impress each other and there likely will be alcohol.

The key here is to enjoy yourself, but do it responsibly. It’s quite likely that police throughout Massachusetts will employ OUI roadblocks as a way to trap drunk drivers. This can lead to an arrest for drunk driving charges in Massachusetts this Halloween weekend.

If this happens, the first move should be to contact an experienced Massachusetts DUI defense lawyer. Getting an attorney involved as quickly as possible can only benefit you. The longer a defendant waits, the more an attorney has to play catch up to get apprised of the facts and be prepared for trial.

When officers pull drivers over, they must have what’s called probable cause. This is true in any situation. They must have a reason to pull over a vehicle. Some typical examples of reasons are if the driver was speeding, swerving, improperly changed lanes or ran a stop sign.

Probable cause is required so that officers can’t simply pull over a vehicle for no reason and try to search it. The probable cause for the stop can be challenged in a OUI case.

After the initial stop is made, the officer will use his or her training to make observations about the driver that could lead them to believe the driver is operating the vehicle under the influence of drugs or alcohol. What they typically rely on are things like slurred speech, glassy or bloodshot eyes and the inability to have a coherent conversation.

That is the key moment that determines whether the officer is simply going to decide whether or not to give a ticket for speeding and whether he or she is going to pursue a DUI investigation.

If it’s the latter, the officer will usually ask the driver to step out of the vehicle and take field sobriety tests and/or a breath test. Refusing to take a breath test automatically results in a driver’s license suspension. However, it will also deny the state a key piece of evidence to use against you at trial.

Field sobriety testing is when an officer asks the driver to take nine steps and turn around to determine their balance, stand on one leg and follow an object from side to side.

All of these can be challenged as well, depending on whether they were conducted properly, whether video from the officer’s cruiser contradicts the observations on the police report, and whether other factors, such as the person’s physical ailments or the weather could have affected their ability to perform.

This Halloween, enjoy your time with your friends and pick out a good costume. Drink responsibly so that you don’t give the police any reason to interfere with your life. If you find yourself arrested, don’t panic, call an experienced Massachusetts DUI defense lawyer, who will defend your rights.
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Baby Lisa Case Could Lead to Kidnapping, Murder Charges

October 25, 2011 | by Michael DelSignore

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.

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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