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Pay attention to this if you don’t want to get stuck sitting in jail for 60 days without the possibility of being bailed out

You get arrested and you go to court for your arraignment. During your arraignment you get released on your own personal recognizance, which means that you are released from custody on no bail. You are all happy and forget to listen to the bail warning. It depends on the court, as some judges like to read the bail warning, while others have the clerk read them to you.

The bail warnings usually sound similar to: you are released on your own personal recognizance. Please be advised that if you are arrested or charged with a new offense while your case is pending your bail may be revoked and you can be held for 60 days without bail.

So if you are released on your own personal recognizance or on bail and you are arrested or charged without another crime your bail may be revoked. When you get arraigned on your second charge the prosecution may file a motion to revoke your bail. If the prosecution files a motion then the judge will rule on the motion. The judge makes his determination based on a two part test. One, is there probable cause to believe that a person committed a crime during his release? Two, if the release will seriously endanger any person or the community? If the judge does revoke your bail you will be taken to jail for 60 days. If you bail is revoked you will be sitting in jail for 60 solid days.

You only need to be arrested or charged with a new crime. The law says that you are innocent until proven guilty, but for the purpose of bail, being arrested may be enough to hold you. Remember, if you have a pending court case and you are out on bail or personal recognizance, make sure you don’t get arrested, or you could spend 60 days in jail.

District Attorney’s Association posted this regarding bail revocation
http://www.mass.gov/?pageID=dmdaterminal&L=4&L0=Home&L1=Court+Decisions&L2=Alphabetical+List+by+Case+Name&L3=M+-+S&sid=Dmdaa&b=terminalcontent&f=courts_paquette&csid=Dmdaa

DUI attorneys
http://www.drunkdrivingduilawblog.com/duilaw/bail-may-be-revoked-for-montco-woman-accused-of-dui-manslaughter/

http://www.mycrimespace.com/2007/06/28/scott-shefelbine-may-have-bail-revoked/

Don’t go to a clerk’s hearing without an attorney

A clerk’s hearing or a show cause hearing is very common in Massachusetts. A person can be arrested and brought into court and arraigned, or the clerk may issue a notice for a show cause hearing.

The standard at a clerk’s hearing is probable cause that a crime occurred. The clerk determines whether there is enough cause to issue a criminal complaint or to take no action. These hearings are not open to the public and are not subject to open meeting laws. The way the proceedings are held is completely up to the clerk. However, most clerks usually allow the complainant either the police or the victim to explain their side of the story first. Then the clerk allows the accused to explain their side of the story if they so choose. Finally, after all the testimony is heard, the clerk will make a decision.

So if you receive a notice for a clerk’s hearing, what should you do? You should contact an attorney right away. To put together a good case hearing, your attorney will need the proper amount of time to prepare. It is true that the hearings are not recorded, but anything you say during a hearing is considered an admission, and can be used against you in court later on. It is also possible to get a lot of these complaints resolved during the clerk’s hearing. If the case is resolved during the clerk’s hearing, the charges are never officially filed, and as a result are not recorded on your criminal record.

A lot of people want to go to these hearings themselves without an attorney. Most people believe that as long as they tell their story everything will be fine. The reality is you need to be able to explain your story in the right way. Even if you are able to get a case dismissed later on in the court process, your record will still show that you were charged with the crime. So be smart and hire an attorney as soon as you can.


Massachusetts Bar Association explanation of show cause hearing
http://www.massbar.org/about-the-mba/press-room/journalists'-handbook/22-common-legal-proceedings

Mass. law updates stating that there is no right to access show cause hearings
http://www.lawlib.state.ma.us/2007/03/no-right-of-access-to-show-cause.html

Attorney Elliot Savitz explanation of show cause hearing with video
http://www.masscriminaldefense.com/clerkshearing.htm

Court to Court: My journey from the maple wood floors of the basketball court, to the mahogany wood desks of the court room

The game ended when I was still seventeen years old. A disappointing defeat at the state finals ended my senior year and a magical twenty game winning streak. At the time, I was about to leave for college in a few months, but I already started to miss my teammates, the game, and above all else the competitive rush. During the fall I would leave good old Hopedale and go to Northeastern for school. I was excited about the new opportunities, but not my life without competitive sports. Like most, I had no idea of what I wanted to do or who I wanted to be. However, I knew that I didn’t want what I did in high school to stand as my only achievements. I also didn’t want the sense of competition to forever elude me, so I went on searching.

A few summers later, I lucked out and got a job with the Suffolk District Attorney’s office as an intern. Knowing very little about the subject beyond what I saw on television, my expectations were limited. It was one of my first days when I got a chance to watch one of my first trials, and when I did I feel in love with the art. I knew that this was what I have been looking for.

Today I realize that the world of competitive sports and trial work has many similarities. For one, practice is a key part of success. There may be people out there that possess a natural gift in terms of scoring a basketball or trying a case, however, I knew that wasn’t me. Trial experts, basketball coaches, colleagues and teammates may tell me how to shoot a ball or object in a trial, but the only way to get better for me was to actually do it.

Second, I must prepare for both. In the past, preparation included scouting the other team, learning the type of defenses they played, the offense sets they ran, and finally preparing a game plan to give my team the best chance to win. In the court room, it is quite the same figuring out the other team’s defensive and offensive strategies and coming up with a game plan to put in the best case.

I also noticed that the mental challenges are similar. For basketball, one of the most difficult things was to play well when I was fatigued. It is no different for me in the court room. Obviously, I am not running around the court as I would on the basketball court, but a case can go for hours to days. The same mental challenges exist for me. During the basketball game, I want to stick tot the game plan, run the right play, get a turnover if possible and not do anything that could lose the game. In the court room, I want to stick to the theory of my case, ask the right questions, object to evidence and not do anything to jeopardize the case. The game and the trial are tiring affairs which make it more difficult to focus and to make the right decisions.

Finally, I love both for its competitive aspect. It is hard to replace the pressure of shooting free throws in a tight game, the euphoria of making a game winning shot, and the sorrow of defeat. Inconceivable to me at the age of 17, but many years later I was able to find that trial work provides some of the same emotions for me. Sure I still try to play in competitive basketball games, but now my battles are done behind a mahogany desk rather than on maple wood floors.

2000 Boy Basketball: Clark Tournament Champions, Central Mass. Champions, State Finalist. http://www.miaa.net/bsktbll-cmass-champions.htm

Police Interrogation (reader suggested topic)

Couple weeks back an avid reader suggested that I write about police interrogations. I liked the idea and finally came up with this. If you have any suggestions for topics please feel free to send them along and I will do my best to write about them. First my disclaimer, I am not a police officer, have never been trained in interrogation and I am not an expert in this area. The following about police interrogation is from my experience in viewing these types of interactions.

There are many things that work against you during an interrogation. The more you understand the process the better you can protect yourself. The best advice is to stay silent and get a lawyer as soon as possible. Aside from that, here are a few points to keep in mind.

The speed of the process. I hear the words, “well it all just happened so quickly” way too often. That is one of the largest problems working against you. Something happens, you get arrested, driven back to the police station, and then they start asking questions. The pace really bothers a lot of people, and it hurts their concentration. A lot of people are still trying to figure out what just happened at the scene, or are stunned about being arrested and as a result don’t pay attention at the police station. It is important that you stay focused, and in the moment.

The atmosphere. The area that you are usually brought into is a small bare room. The room is uncomfortable and it makes a lot of people uneasy and gives them a feeling of not being in control. There is usually a double sided mirror, video recording, some old chairs, uncomfortable lighting, and a sorry looking table. All this can make people feel uneasy. When you feel uneasy, it gives the other side the advantage.

The numbers. There are usually at least two officers there when the questioning happens. This uneven number can make people feel helpless, especially in a small room. The police do have to give you your Miranda rights. Those are usually given at the beginning when the conversation is still pretty easygoing. Because of the light atmosphere at the beginning, a lot of people sign away their rights. However, once the questioning gets going most regret waiving their rights. The police don’t have to let you know that you can still assert your right to an attorney even after you waive your rights. Remember to ask for an attorney before you speak with them, but even if you sign a waiver, you can still ask for an attorney later on.

The questioning. The police are very good at getting people talking. At the beginning of the questioning, they tend to ask easy questions. This usually gets people use to talking to them. We as a society have a tendency to keep talking once we start talking. The police may also use small amounts of outside information, like we talked to this person or we found this evidence, to encourage you further.

Video tapes and signed confessions. Usually every interviewed is video taped and the police will ask you to sign a written confession. A video taped signed confession can be devastating, and they usually are. Most of the time they are a key piece of the prosecution puzzle. Even if the police have a lot of physical or derivative evidence, they must link the evidence together to point at you. When you have a signed written confession you are helping the police tie the evidence together. You can be even filling in gaps that the police could not solve without more information.

The majority of police officers are nice to talk to and pretty helpful. However, they have a job to do and cases to investigate. A large part of their investigation requires them to question people. Knowing that, it is very important that you stay vigilant and protect yourself at all times. After all, you wouldn’t tell your spouse about the details of the bachelor or bachelorette party, would you? Then again I wouldn’t want to see the thing your spouse may do in response to you invoking your right to remain silent, or to an attorney.


Arrests and Interrogations FAQ
http://articles.directorym.com/Arrests_and_Interrogations_FAQ_Lawrence_MA-r935136-Lawrence_MA.html

Mark A. Godsey: Shining the Bright Light on Police Interrogation in America
http://moritzlaw.osu.edu/osjcl/Articles/Volume6_2/Godsey-FinalPDF.pdf

Top ten reasons you don’t need to hire a lawyer for your criminal case

1. You are a huge fan of the world series of poker and decided to gamble with your life.

2. You can’t stop laughing from the drugs that you are on, and decide that it will be a lot more fun representing yourself.

3. Your mom told you were meant to do great things, and you decided to start by trying to win your own case.

4. You thought the words pro se (represent yourself) sounded cool, and decided to choose that option.

5. Your psychic told you this was your year, and you feel invincible.

6. You believe that you are the best liar in the world because your spouse believes everything you say. As a result, you believe the court will also fall prey to your skills.

7. Your shrink told you need to be more independent, and you don’t want to have an attorney get in the way of your shrink’s advice.

8. You have seen every episode of law and order and figured that your case would end in an hour anyway, so you rather not go through the hassle of getting an attorney.

9. You stayed at a Holliday Inn last night and feel very confident.

10. You equate lawyers to crooks. People have called you a crook all of your life, and with your logic, you believe that makes you a lawyer.

In all seriousness, there is no reason to not get an attorney for your criminal case. The court will hold you to the same standards as if you have an attorney representing you. For the most part, not having an attorney is not sufficient grounds for an appeal. Even if you signed a waiver to represent yourself, most judges will allow you to change your mind and hire an attorney. You shouldn’t wait to hire an attorney, but by waiving an attorney early on usually doesn’t mean that you can’t hire one later. So be smart, don’t gamble with your life and make sure you have a lawyer.

At a party, you hear police coming, there are drugs at that place, what do you do?

Throughout your life you probably went to your fair share of parties and you are likely to go to a few more before you hang it up. What if you are at a party, and you know someone is doing drugs or there are drugs in the apartment, and the police show up? There are a lot of police officers everywhere, people screaming, what do you do? Well here are a few things to keep in mind.

Don’t run. This is not an easy thing to do, but think rationally about this for a moment. Most of the time when police do a raid on a house they cover all access points. Therefore, by running away from one police officer, you will inevitably find your self running straight into the arms of another. Besides running doesn’t make you look good. Also let’s face it, if you have been partying and drinking, what are your chances of outrunning the police at this point?

Don’t say much if anything at all. If this is just the police coming into the apartment to break up the party that is one thing, but it could also be a raid. During a raid the police will usually have a search warrant. If the police have a search warrant for that location, they will usually arrest everyone there. You don’t want to say anything that might link you to the place, the targets on the warrant, and obviously the drugs. So don’t say anything, instead tell the officers you don’t want to say anything until you talk to an attorney. Sometimes the strongest piece of evidence the police have is the statements that you give. If you tell the police officers that the drugs in the bedroom aren’t yours it won’t help. You might be thinking you are giving solid defense to the drugs, the police will think that you knew about the drugs in the bedroom. So be quiet.

Call an attorney. If you get arrested and the police want to ask you questions, don’t waive your rights. Tell the police in a nice way that you would like to first talk to an attorney. You never know what the police are thinking. Don’t put yourself in a bad situation because you thought the police were going to let you off easy if you talked.
To recap, don’t run from the scene, don’t say anything at the scene, and don’t answer questions until you talk to an attorney.

Massachusetts Bar Associations talks about search warrants
http://www.massbar.org/about-the-mba/press-room/journalists'-handbook/20-search-warrants-and-subpoenas

Being guilty of not doing anything

When we think of people committing a crime we usually assume that the person did something. Attempted murder, what are the first things that you think about when you read those words? Most of us would think of a person who actually took several steps to try to kill another person. From our media and Hollywood driven minds we might envision a suspect with black gloves, armed with a weapon that stabs or shoots another person. How many of us would think of a mother not taking care of her child?

Most criminal charges stem from affirmative actions, meaning the person took steps to do something. In certain situations, a person can be charged for not taking steps to prevent harm. This is a very interesting line of criminal cases because it almost contradicts our thoughts of the system. One of the basic ideas of the system is to punish those who wrong others, or society as a whole. The system also values freedom, and doesn’t require normal civilians to help, and save others. People are not punished for not running into a burning building to save people, not running into the ocean to save a drowning person, or not running to call 911 when a person is injured.

However, there are certain situations where a person can be charged for not doing something. In those cases, there usually needs to be some duty owed to the person ultimately harmed. You see this with animal cruelty cases, where people can be charged for not taking care of their animals. A person doesn’t have to do anything affirmatively like hit or actively harm the animal. A person can be charged with animal cruelty if the animal is not given food, shelter, or other proper treatment.

Finally, the Boston Globe recently reported that Kristen LaBrie was charged with attempted murder and child endangerment. The prosecution brought the charges after she cancelled doctor appointments, and did not fill prescriptions for her son who had cancer. In the end, Ms. LaBrie's son who also was autistic died. Ms. LaBrie’s attorney claimed that this was done due to financial hardship, but the judge still held her on $15,000 cash bail.

It will be interesting to see the punishment that Ms. LaBrie ends up facing, and the course these types of cases will lead. For now, remember that you can be charged or convicted of committing a crime, for not doing anything.

http://www.boston.com/news/local/massachusetts/articles/2009/07/06/mass_mom_pleads_not_guilty_to_denying_son_meds_1246891102/

The most dangerous plea

If you ever find yourself in court, you will notice the long waiting time before your case gets heard. However, once your case is finally called, you will also notice that your case goes very quickly. As a result of this imperfect legal system, many people are left confused about their court case.

Because the process is so quick, a lot of people do things that they regret later. One of the most common problems is when people take a plea bargain without knowing the possible consequences. This happens quite often when people plead out to a continuance without a finding, or CWOF most commonly called by the court. I call a CWOF one of the most dangerous pleas because there is so much confusion out there, and the confusion leads to huge problems.

So to clarify, a CWOF is not a conviction. If you plead to a CWOF you are not admitting you are guilty, instead you are admitting that there are sufficient facts to find you guilty.
A CWOF will put you on probation for a certain amount of time. The terms of probation is set by the judge. The probation period is usually set at 6 months to 1 year, but it can be any period of time.

One of the major issues with CWOFs is that most people think that the charge disappears from their record at the end of probation. This is false. The charge does not disappear from your record. Most judges and lawyers will say to a person that if they have no problems while on probation the case will be dismissed. Those words usually lead people to believe the charge actually disappears. In fact, the record will show the charge, show that a person admitted to a CWOF, and later show the word dismissed. The original charge remains on the record.

Another problem is that people don’t realize the severity of the punishment that they may face. If you plead out to a CWOF and violate your probation, the charge can now become a guilty conviction. If the judge does withdraw the CWOF and imposed a guilty conviction, the judge may impose the maximum penalty for that charge. It doesn’t mean you will face the maximum penalty, but the judge has the discretion to impose the maximum penalty.

If you have immigration issues, then a CWOF could be devastating. Immigration treats a CWOF the same as a guilty finding. Immigration has its own rules and does not care how the criminal system defines a conviction. As a result, you can be deported because you plead out to a CWOF.

Finally, for certain crimes, a CWOF counts for the purpose of subsequent offenses. For example, if you plead out to a CWOF for operation while under the influence (OUI) and then get arrested for another OUI, you will be charged with OUI second offense. It doesn’t matter that you plead out to a CWOF on your first OUI. Needless to say second and subsequent offenses carry heavier penalties. The court rooms are busy, your case will go fast, but make sure you are aware of all the consequences before you plead to a CWOF.

http://74.125.95.132/search?q=cache:AmuiMMMAykMJ:www.nlgmass.org/cdbrochure.doc+continuance+without+a+finding&cd=14&hl=en&ct=clnk&gl=us

http://www.masscriminaldefense.com/cwof.htm

You have the right to remain talking?

Most if not every person knows the Miranda warnings by heart:

You have the right to remain silent. Anything you say can, and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.

It is truly astonishing the amount of people who are given these rights and still decide to talk to the police. The police tell them that they have the right to remain silent, yet most people rather choose to exercise their right to remain talking at their own peril.

If the police suspects that you have committed a crime, and have enough evidence to file an official complaint, they will. There is little that you can say to stop the police from doing that. While you may believe you can talk your way out of the situation, it is highly unlikely to happen. Police officers are trained to extract information from people, and most of them are very effective at doing just that.

You have a right to an attorney, and one will be provided if you can’t afford one. Therefore, there is no reason why you should not talk to an attorney before talking to the police, or to have an attorney present during the interview. Think about it, before you go in for surgery wouldn’t you want a professional doctor to warn you about the possible dangers of the procedure, and reduce the risks that you may face?

When you are properly given your Miranda rights and confess, it makes it very difficult to suppress the statements. To make matters worse, police are trained to obtain a written confession and to tape the interviews. Many times, the confession is the strongest part of the prosecution’s case. So if you decide to exercise your right to talk, make sure you are ready to face the consequences.

Expert law provides a good question and answer about Miranda rights: http://www.expertlaw.com/library/criminal/miranda_rights.html

Globe story regarding a Vermont man confessing to murderhttp://www.boston.com/news/local/vermont/articles/2008/07/10/accused_killers_confession_played_in_court/

What are you crazy? You don’t want to use the insanity defense.

Most people believe that the insanity defense is used all the time. In reality, the insanity defense is not something that is raised that often. However, the public seems to pay more attention to these types of cases, and as a result there is more media coverage. Many different resources have shown including a frontline report (there is a link at the bottom to view this report) says that the insanity defense is raised in less than 1 percent of felony cases.

One of the reasons why the insanity defense is seldom used is that it is an affirmative defense. This means that a defendant needs to raise insanity as an issue. As you may already know, a defendant is innocent until proven guilty, and has no duties to raise a defense. A defendant may sit there, and force the prosecution to prove all the charges against him. If the prosecution fails to uphold its burden, the defense can ask the court to dismiss the case.

When the insanity defense is used, it often means that the defendant is agreeing with the facts of the case. So instead of saying that the defendant is not guilty because he or she didn’t do it, the defendant is saying that he or she should be found not guilty because of his or her mental state.

As you can imagine this is a dangerous proposition. No matter how strong a case may look, there are always things that may lead the jury to believe that a person is not guilty. After all, O.J. Simpson didn’t exert the insanity defense in his double homicide trial, the case against him looked strong, and we all know the result. Now if O.J. used the insanity defense, he probably wouldn’t have been able to contest the facts. Additionally, statistics has shown that the insanity defense is usually unsuccessful. Sometimes it is the right defense to use, while at other times, it is just plain insane.

Globe reporting on the “Rockerfeller” case
http://www.boston.com/news/local/massachusetts/articles/2009/05/26/gerhartsreiter_trial_will_test_insanity_defense/

Massachusetts Bar Association comments on the insanity defense
http://www.massbar.org/about-the-mba/press-room/journalists'-handbook/6-not-guilty-does-not-mean-innocent

Front line Q&A for insanity defense
http://www.pbs.org/wgbh/pages/frontline/shows/crime/trial/faqs.html

SJC shot down Sutter’s gun policy

Lately there has been a lot of talk about the Bristol District Attorney Samuel Sutter requesting so called dangerousness hearings on every gun felony case. The Supreme Judicial Court ruled 4-1 to strike down the Bristol District Attorney’s policy. (http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20090504/NEWS/90504003)

Well what is a dangerousness hearing? When a person is arrested for a serious crime he or she is usually brought into court the next day. At this first appearance, a person will be arraigned, and a bail hearing will be held. After the bail hearing, the judge can release a person on no bail, release a person on bail, or hold the person without bail. The courts are reluctant to hold a person without bail except for extreme circumstances. There are certain situations in which the court will hold a person without bail; the most common example is when a person is charged with murder.

The prosecution must move for a dangerousness hearing at a person’s first appearance in court, which is usually the arraignment. If a dangerousness hearing is allowed by the judge, a person can be held without bail for up to 3 days to give the prosecution enough time to get ready for a hearing. The defendant’s lawyer may also ask for a 7 day extension to prepare for the hearing which the defendant would also be held without bail. If the court finds that a person is a danger after the hearing, a person can be held in custody for 60 days without bail. If a person is found not to be a danger, then he may be released on bail.

That is a quick summary of what a dangerousness hearing is, but you should get more information if you are planning to represent a person at these hearings. If you are a person about to face a dangerousness hearing, find a good attorney right away. Failing to get a good attorney could mean 60 solid days in jail.

The Boston Globe reports on Governor’s Patrick’s response to the SJC ruling
http://www.boston.com/news/local/massachusetts/articles/2009/05/07/patrick_seeks_to_toughen_gun_laws/

The Sun Chronicle Report
http://www.thesunchronicle.com/articles/2009/01/06/news/4191344.txt

New Bedford 360 Report
http://www.newbedford360.com/articles/articles/645/1/Bristol-County-District-Attorney-Sam-Sutters-office-will-be-holding-its-landmark-150th-illegal-firearm-related-dangerousness-hearing/Page1.html

Governor’s Patrick’s response to the SJC ruling
http://www.newbedford360.com/articles/articles/645/1/Bristol-County-District-Attorney-Sam-Sutters-office-will-be-holding-its-landmark-150th-illegal-firearm-related-dangerousness-hearing/Page1.html

Sex for a Fee

It is no surprise to Worcester residents that when you walk by Main South at night you will inevitably run into prostitutes. It is a high crime area where police constantly monitor, and arrest both prostitutes and customers. It is an area where prostitutes exchange sex for money, then exchange the money for drugs.

The police have gotten more aggressive in their pursuit of the customers. The great majority, if not all the prostitutes are drug abusers, and police cannot find a way to stop their trade. Therefore, police has increased their attention on the customers, hoping that by cutting off demand the supply will diminish.
If you are a customer in the Main South area and see a female that has all her teeth, no body sores, in decent clothes and doesn’t look like she is strung out on drugs, buyer beware. The only thing that you are about to receive is a ride to the police station. The police reports overwhelmingly suggest that the most popular item is oral sex going for the usual rate of $40.

Once I read in a report that a customer offered an undercover police officer $25 dollars for oral sex. On the day of the trial, an attractive and healthy looking female police officer came to court and told me she was the undercover on the case. I was taken back and immediately two things came to my mind regarding this case. First, why in the world would anyone think that she is a prostitute? She had all her teeth, didn’t look like she was strung out on crack cocaine, and too healthy for someone living on the streets. Second, seeing that the going rate in Worcester was $40 and she was offered $25, I wondered how she felt about the low offer. I was about to ask the undercover then thought better of my curiosity. Though she was extremely nice and helpful, she did carry a duly licensed service revolver.

Police arrests 18 people for prostitution:
http://www.thefreelibrary.com/Worcester+police+arrest+18+in+prostitution+sting-a0160496310

Man found guilty of prostitution ring. Article by the Worcester Telegram
http://www.telegram.com/article/20090514/NEWS/905140548

New marijuana law leads to administrative nightmares

The people of Massachusetts voted to decriminalize the possession of an ounce or less of marijuana. Now the greater issue is the enforcement of the new policy. The new law essentially converts a criminal offense of possession of marijuana into a civil violation.
(http://www.boston.com/news/local/breaking_news/2009/01/marijuana_decri_1.html).

To qualify a person must not have pled to possession of marijuana in the past. If a person does qualify, the law requires the state to convert the criminal offense into a civil violation. A person then would be required to pay $100 fine, and attend a drug treatment class. The parameters of the new law seem simple enough, but the law is silent to its administration. As a result, the new law has lead to serious problems for the court system.

The law does not state who should be issuing the fines. When a police officer finds marijuana on a person, should he or she be issuing a citation similar to a trafficking ticket? Or should the police officer still file for a criminal complaint, and allow the judge to convert it later on?

There is no way of keeping track of people that are being fined. The purpose of the law is to give a break to a first time offender. The law does not state what entity should be keeping count on how many times a person has been caught. Essentially when a police officer has caught someone with an ounce of marijuana, he has no idea if the person is a first time offender, or has been caught with marijuana many times before.

The law does not state who should be collecting the fines, or what the penalties for non-payment are. Should a police officer collect the fine on the spot, or should he tell an offender to send the money somewhere?

Finally, this drug treatment class that people are required to take also poses a serious administrative problem. Unlike AA for alcohol treatment, drug treatment programs are not as readily available around the state. Once again the law is unclear on who should be signing up offenders, keeping track of the people who go and enforcing the penalties for non-compliance. Whether you agree with the policy or not the law leads to serious administrative issues.

Telegram reports on the new law http://www.telegram.com/article/20090514/COULTER03/905140761

Boston Globe reporting on recommendations to clear up the confusion

http://www.boston.com/news/local/massachusetts/articles/2008/12/30/girding_for_new_marijuana_law_state_offers_enforcement_tips/

OUI-What to do when you been drinking and then get pulled over

When most people get pulled over for the first time on suspicion of operating while under the influence of alcohol, or OUI they have no idea what to do. As a result, their actions can really put them in a bad situation when they go to court. Law enforcement is now more aggressive than ever patrolling the streets, and looking for drivers suspicious of OUI. Obviously the best thing to do is not to drink before you drive, or to have a designated driver. However, if you do find yourself in a vulnerable position, here are a few suggestions to best protect yourself.

Be kind, courteous and don’t say stupid things. It seems obvious, but I have seen so many of these cases in which people are rude or say stupid things. The officer will put all of your statements in his or her report, so be careful. Follow the officer’s instructions, and hand over your license and registration upon request. This isn’t a time to start telling the officer about the people you know, or to yell at the officer. OUI laws are much tougher now. Telling the police officer that you know someone that is a policeman, elected official, or any other person you may think is influential or famous will do you no good. If you start yelling at the police officer, it will just lead to you being arrested quicker.

Refuse to take the field sobriety tests. I get this question quite often. Unless you absolutely sure that you can pass them, don’t take field sobriety tests. It is your right not to take field sobriety tests, even though police officers don’t have to tell you that. Once again be courteous and tell the police officer “no thank you, I am all set”. If you refuse the field sobriety tests, there is a good chance that you will be arrested. However, if you don’t meet the officer’s expectations in the test you will be arrested anyway. The prosecutor cannot mention that you refused to take the field sobriety tests at trial.

Don’t take a breathalyzer. It is becoming increasingly difficult to suppress the breathalyzer at trial. The breathalyzer is a strong piece of evidence at trial, and it is important that you don’t take the breath test. If you refuse the breathalyzer your license will be suspended. The length of the suspension depends on your record. If it is your first time, then your license will be suspended for 180 days. It is a long time to have your license suspended, but it is worth keeping out a strong piece of evidence. The prosecutor cannot mention that you refused to take a breathalyzer at trial.

Call a lawyer. Make sure the lawyer that you hire is a good trial attorney. You want an attorney who knows how to try cases, and is willing to try them. You don’t want an attorney to push you into pleading guilty to the charges just because the attorney is afraid of a trial.

The law on OUI-http://www.lawlib.state.ma.us/drunk.html

End to sex talk?

Craigslist a very popular internet website has decided to end its “erotic service” section. This is in response to intense pressure from the media and the government, after the Phillip Markoff incidents. While most people are following the Markoff story, a more subtle change in internet sex talk has been rightly overshadowed.

When a person is charged with prostitution they are charged with sexual conduct for a fee. In order for the government to prove that a person is guilty of sexual conduct for a fee it must prove two elements. First, that the defendant either engaged, or agreed to engaged, or offered to engage, in sexual conduct with another person. And second, that the sexual conduct was or was to be done in return for a fee. Both a customer and the prostitute can be charged.

Police has tried to find ways to monitor internet postings offering sexual services for a while now. The difficulty for police came up when people got creative with their wording making it hard to arrest and prosecute people based on their postings. People would use words such as massage services to slip by the law. Some of these postings would go even further and say “topless”, “naked” or even “special” massages. Law enforcement knew exactly what most of these posts were trying to sell and when police set up stings their theories were confirmed.

Craigslist taking down its “erotic services” section marks a significant change to the way that sex is marketed online. Police has been trying hard to shut down these types of interactions and now because of the serious allegations Markoff is accused of it has happened. There are still a lot of other internet sites that people use to market and find sexual services, so it is not the end. However, Craigslist was one of the most popular websites, and for now the sex talk has gone silent.

Read more about the story from the New York Post
http://www.nypost.com/seven/05132009/news/nationalnews/craigslist_to_end_online_erotic_services_169068.htm

Report by ABC news
http://abcnews.go.com/US/story?id=7575574&page=1

Report by the Worcester Telegram
http://www.telegram.com/article/20090514/NEWS/905140581

Trial attorneys on the brink of extinction?

When most people think of attorneys they immediately think of a person standing in a court room addressing a judge or a jury. That is what television and the media lead people to believe. The truth is that the majority of lawyers you will meet have never, and will never set foot inside a court room. Even with attorneys that go to court a lot, very few of them ever try a case.

There are many reasons why there are very few attorneys that try cases. First, most cases whether criminal or civil are resolved short of trial. The percentage of a civil cases going to trial is very small. Civil cases can take years and there is a lot of pressure to settle cases. A higher percentage of criminal cases are tried, but even in criminal cases clients often elect to take lesser sentences through plea bargains.

Second, there are fewer attorneys learning how to try cases. Seeing that there are fewer cases going to trial, there are fewer opportunities for attorneys to learn. Even if an attorney is lucky enough to find a job in a firm that has a litigation department, many do not try their own cases. Attorneys who get jobs at big firms usually assist in getting the case ready for trial, and then hand off the case. Many clients do not want a young attorney who they believe is not as good handling their cases at trial. Instead they want the older, more experienced attorney who they believe is better.

Finally, it takes a certain personality to be a trial attorney. People may disagree on what combination of skills and personality make up the best trial attorneys; however, most people will agree that a good trial attorney is not afraid of trying a case. The factors of fewer cases going to trial combined with fewer attorneys learning how to try cases creates fear.

The amount of criminal and civil cases in the court system has not decreased over the years, but the amount of these cases going to trial has. There are many times where settlements and plea bargains are the right resolutions. However, for all the other times where a trial is appropriate, you may be hard pressed to find a good trial attorney.

For more information check out: http://www.law.com/jsp/article.jsp?id=1090180363092

Make sure your criminal lawyer knows about your immigration problems

It is very important that you tell your criminal lawyer about your immigration issues. Most criminal attorneys don't ask their clients about their immigration status. There are serious immigration consequences that you can face if you plead out. To make matters worse it is becoming increasingly difficult to reopen your case. Most district court judges will make sure that they give immigration warnings and mark that on the docket sheet. So be aware and ask your attorney before it's too late.


New York State Defenders Association has posted this wonderful check list online at
http://www.reentry.net/ny/library/attachment.72698

Read more about Criminal Charges and Immigration Consequence by Vincent Martin
https://hg.org/article.asp?id=5171