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A little known fact within the Massachusetts criminal justice system, is the potential for any criminal defendant to be put on pretrial probation in lieu of criminal charges. You read that right, any potential defendant.The relevant statute reads as follows:

The superior court, any district court and any juvenile court may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper, with the defendant’s consent, before trial and before a plea of guilty, or in any case after a finding or verdict of guilty;

Therefore, in addition to stating that any person may be placed on probation, it also states that the terms of such probation to be those that it deems proper. This allows the court the flexibility to customize the terms based upon the individual case at hand. As you can imagine, however, the reality of actually securing a pretrial diversion in lieu of criminal charges depends upon a variety of factors. Most notably among these is the experience and persuasiveness of your defense attorney.

In practice, the pre-trial probation, which is technically referred to as pre-trial diversion, is a court approved agreement reached between the defendant and the prosecutor prior to trial or the entering a guilty plea. Therefore, if you enter a guilty plea prematurely, such as if you decide to forego the advice of counsel, you effectively waive your right to this potential option.

According to the terms of a pre-trial diversion agreement, the defendant is placed on probation under the care of a probation officer, either supervised or unsupervised, for a defined period of time, and according to certain agreed upon terms. Once the defendant successfully completes the probation term, the charges will be dismissed completely.

However, if the defendant violates any condition of his probation, the charges will not be dismissed, and the case will proceed normally. Meaning charges will be formally filed, and the defendant could face a trial, and potentially jail time. However, a defendant cannot be jailed for violating this pretrial probation, since technically, that individual has not been found guilty of anything yet. However, the court could then decide to hold a person without bail, if it so decides.
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Last month, the U.S. Supreme Court issued a landmark decision in the area of Driving Under the Influence (DUI) Blood Alcohol Content (BAC) evidence collection, and the rammifications of the case are certain to have an impact on police departments everywhere.

The case, Missouri v. McNeely, dealt with an ordinary enough sounding traffic stop. The defendant in the case, Tyler McNeely was pulled over by a Missouri police officer for speeding and crossing over the centerline. He then exercised his right to refuse a breathalyzer test (the refusal of which the Supreme Court ruled, in South Dakota v. Neville, is permissible as evidence against a defendant in a subsequent trial, and could potentially be construed as evidence of guilt). He was then arrested and transported to a nearby hospital for blood testing. He refused consent, but the officer directed the lab technician to take the sample anyway. His blood tested significantly above the limit, and he was charged with Driving While Intoxicated (DWI).

McNeely motioned to suppress the blood test results, arguing that they violated his Fourth Amendment rights against a warrantless search. The trial court and state supreme courts agreed with McNeely, stating that there was no evidence of exigent circumstances justifying the officer’s failure to first secure a search warrant.

The U.S. Supreme Court agreed with the lower courts, holding that the warrentless nonconsensual test violated McNeely’s Fourth Amendment rights. The opinion holds that the natural metabolization of alcohol is not a sufficient exigent circumstance to justify a per se rule that warrantless nonconsensual blood tests are permissible in every case. It further remarks on the fact that the metabolization argument is flawed for the fact that the process will occur during the transport from traffic stop to hospital anyway.
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The tragic bombings and related events surrounding the Boston Marathon were felt by us all in Boston and nationwide. My heart goes out to the victims affected by the violent acts.Following the capture of Dzhokhar Tsarnaev, who is believed to be behind the attacks, many people have begun to debate the validity of granting a public safety exception in order to circumvent the requirement that Mr. Tsarnaev be informed of his right to remain silent and be represented by counsel. During questioning on Sunday morning by FBI agents during this special period, he admitted to his role in the attacks, and stated that he did not know of any additional plots, and that he and his brother had acted alone.

In the complaint, which was filed in U.S. District Court, Tsarnaev is charged with two federal crimes, including “Use of a Weapon of Mass Destruction,” and “Malicious Destruction of Property Resulting in Death.” The complaint details the terrorism task force FBI agent’s reviewal of evidence, including video surveilance from nearby businesses.
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Police are accusing a Boston area man of several crimes related to allegedly using a filed down key to gain entrance into a police bait car, and then removing several small items before being apprehended.At the arraignment last week, the client plead not guilty to the charges, which included:

  • possession of a motor vehicle master key
  • breaking and entering in the night to commit a felony
  • and larceny over $250

Attorney Patrick J. Murphy argued that his client had been set up by police. He stated that this was essentially a victimless crime, wherein all of the property involved in the allegations is owned by the city of Boston, and that the entire case was essentially a ruse set up by the Boston Police Department.

He further pointed out that his client had not been charged in any other break-ins, despite contentions otherwise by the Assistant District Attorney. Attorney Murphy expressed concern that all of the alleged prior charges recounted by the ADA during the hearing were not even for the correct defendant. In fact, the court documents listed the client with two different names, even though only one of them happened to be correct. This included documents reflecting the incorrect age for Murphy’s client in at least one place.

Further supporting the fact that the supposed prior crimes were not committed by this client is the fact that the client would only have been 15 years old at the time these purported crimes occurred. This means that even if we were to pretend that they were true, they would have been handled within the juvenile system. Attorney Murphy stated that he is working diligently to figure out how the improper criminal record was attributed to his client.
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Massachusetts’ highest state court ruled last week that so called “social sharing” of marijuana is not a crime. The decision dealt with four separate cases that fell within the purview of a voter approved initiative which decriminalized possession of less than an ounce of marijuana.

In one case, a man was apprehended by police after they witnessed him sharing a marijuana cigarette with two of his friends, and also happened to notice a plastic bag containing marijuana sticking out of his pocket. Police then searched his backpack, which led to the discovery of an additional 10 small bags of marijuana, with the total weight of everything in the man’s possession amounting to less than an ounce.

The state had argued that the arrest was justified because the officer had reason to believe that the man was set to distribute the marijuana illegally. However, the court disagreed. It ruled in favor of the defendant, emphasizing the small amount in the man’s possession, and noting the fact that the man’s crime was only scrutinized in this situation because he was smoking with friends. Therefore, the law’s protection extends to group activity as well.

The other cases involve similar arguments, that individuals sharing marijuana were charged with intent to distribute based on their objective act of sharing the marijuana between them.

However, the court upheld the police’s actions in a case where officers found less than an ounce worth of plants growing in his closet, after he was served with a warrant. This finding dealt with the 2008 voter initiative’s reach regarding the cultivation of marijuana, which the court ruled it does not alter. Therefore, according to this ruling, the initiative protects the act of possessing an ounce or less, only.
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There have been multiple reports, and in fact even indictments of several employees of drug processing crime labs in Massachusetts in recent months. Additionally, two crime labs used by the state to process drug samples have been closed down until the allegations regarding the mishandling of evidence have been thoroughly investigated.In one of the cases under investigation, Sonja Farak, was charged with tampering with drug evidence, where she in some cases allegedly removed small amounts of heroin and cocaine from test samples for personal use, and then replaced the drugs with other substances. Officials maintain that she removed the drugs from already tested samples, which would in theory therefore not affect the outcomes of the tests, or the cases for which they were conducted. She handled drug evidence at the Amherst Drug Laboratory on the University of Massachusetts campus, which has been closed pending an investigation by the State.

Annie Dookhan, 34, was indicted following her September arrest for charges of falsifying drug evidence in thousands of cases. According to investigators, her mishandling or falsification of evidence may have affected some 10,000 people convicted or accused of crimes based on evidence that she processed at the Hinton lab in Jamaica Plain where she worked. State officials said that hundreds of people had been released from prison pending new trials.

Additionally unsettling, is the fact that according to sources, the Hinton lab was not ­accredited, unlike the Boston police crime lab, and other labs countrywide. It remains unclear why unaccredited labs would be used by the state for criminal cases, whereby the outcomes could determine whether individuals lose their liberty.
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According to an announcement by Police Commissioner Edward F. Davis, there has been a significant drop in crimes in Boston during the first quarter of the year. The Commissioner believes that this is due in large part to dedicated police work and inclement weather, which keeps people inside.

According to police department statistics, crime rates from January 1 through March 18 of this year are as follows:

  • 7 homicides (compared with 8 during the same period last year)
  • 25% decrease in rape/attempted rape
  • 7% decrease in robberies
  • 16% decrease in aggravated assaults
  • 8% decrease in burglaries
  • 17% decrease in larceny
  • 14% decrease in vehicle thefts

However, shootings and firearm-related arrests are on the rise. By March 18, there were six shooting deaths in Boston, compared with five in the same period last year; nonfatal shootings are up 20 percent and firearm-related arrests are up 11 percent. Police believe that these sorts of incidents are typically the result of retaliatory action.

Authorities also credit the engagement of police officers within the areas they patrol, and the effectiveness of community watch organizations. But several prominent police authorities caution not to look too much into the declines, and warn that once the harsh winter clears, the lower numbers will likely not continue to trend.

Regardless of the true cause for the decrease, the police and many others within the community are satisfied that less crimes are occurring.
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Investigators from local, state, and federal authorities announced last week that they have made an arrest inconnection with an extensive criminal operation, which involved identity theft, high end electronics, and counterfeit money. The suspect was arrested last Thursday on the Boston Common after he allegedly attempted to purchase counterfeit money.

The alleged criminal enterprise involved a man operating out of a kiosk located within a jewelry store, named “Time Products,” which is located at Downtown Crossing on Washington Street.

Authorities believe that the suspect would procure credit card information from people, or use their identities to apply for new credit card accounts. He would then use that information to purchase iPads, high end cell phones, and other high end electronics.

Attorney General Martha Coakley stated, among other things, that “Runners were paid [to use] those accounts to obtain smart phones and other high-end electronics at discounted prices from stores across the Commonwealth.”

It is believed that the runners would use the acquired identities or credit cards to purchase the high end phones at a discount, by for example agreeing to a two year service contract. A local news station reported that the credit cards may have also been used to purchase gift cards, which were then used to purchase merchandise. The products were in turn then sold, either from the kiosk or on the street, at a lower than market price.

Police said that an undercover investigation, which is ongoing, ultimately led to the arrest of the suspect. The Boston PD commissioner said that more arrests are expected, in addition to the at least two other men who have been arrested on unspecified charges.
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A 64-year-old North Andover man, who is described by prosecutors as the, “overall boss” of a loan sharking and illegal gambling enterprise has been sentenced to up to four years in prison.

Joseph Giallanella, who is also known as Jason Peters, was sentenced on Monday to serve time in stateprison for two to four years. The sentence follows Giallanella’s guilty plea on January 18 of this year, to two counts of conspiracy, two counts of accessory to larceny after the fact, managing of a gaming enterprise, criminal usury, and use of a telephone for gaming.

He was additionally sentenced to two years of probation upon release from prison.

Giallanella faces additional charges including assault and battery, attempted extortion, intimidation of a witness, and attempt to commit another to commit perjury. Investigations relating to this case resulted in additional indictments against 30 other individuals. His part of a criminal enterprise is noteworthy because it can potentially implicate the guilt of any co-conspirators involved in the criminal organization of which he is alleged to be a part of.
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Last month Boston Firefighter Kenneth Veiga, a 24 year veteran, was facing potential charges for threats he made against his department following a requirement that he see a predetermined physician in order to return from his paid leave.

Veiga allegedly told his commander that he was thinking about smashing a fire truck into a wall, and further that,”I am Army trained and have weapons and ammunitions (sic) in a storage locker. Dorner will be child’s play.” The reference to “Dorner” being that of the former LAPD officer Christopher Dorner who killed several people last month, resulting in a man hunt and standoff prior to killing himself earlier last month. Boston Police also said Veiga additionally stated that he was “upset with City Hall, Fire Department Headquarters, and the Firefighters Union Hall.”

It was reported this week that no charges will be filed in the case.

Under Massachusetts law, in order to be criminally liable for making a threat, the prosecution must prove that a person has done all of the following:

  • the defendant expressed intent to injure a victim and/or his or her property;
  • the defendant intended to convey this to his victim;
  • the injury or harm that was threatened, would be a crime if carried out; and
  • the threat was expressed in such a way as to give the victim reasonable fear or apprehension that the defendant had the intent and ability to carry out what was threatened.

Thus, comments made merely in jest or as an expression of frustration, may not rise to the standard required under criminal law. Additionally, it is important to keep in mind that in its case against a defendant, the government must prove each element beyond a reasonable doubt. Therefore, based on the limited information and evidence reported, it isn’t that surprising that the case was not pursued.
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