By Peter Elikann

Bail is not supposed to be a punishment. After all, people are presumed to be innocent until they are convicted. Yet if an arrested person is held on bail that is too high for them to make, they could be held in jail pretrial for many months and, often, much more than a year. If one is innocent, they are, essentially, being punished until their trial date. This is why a good attorney can give you your best opportunity to stay out of jail at least until you’ve exercised your right to trial either having you put up no bail at all or a minimal bail that you can afford.

Since it is not supposed to be a punishment, the main purpose of bail is to ensure that you will continue to return to court and not be a risk of flight. Here in Massachusetts, unlike many other states, at the end of the case, whether you win or lose, you will get back the entire amount of bail minus a $40 fee which is required in certain cases. For example, if you are bailed out for the amount of $5,040.00, when the case is completed and you have always showed up, you will get $5,000.00 returned.

The way it works in Massachusetts is that, when you are arrested, a bail commissioner will come to the police station and determine whether bail is to be set. Most times, no bail is required and only the $40 bail commissioner fee must be paid. This is known as being released on your own personal recognizance. You are then given a piece of paper noting when you are to appear in court for your arraignment. It is usually the next time the court is in session. Since court is in session Monday through Friday yet closed weekends, you usually must come to court the next day unless you have been arrested during a weekend and then you will have to wait until Monday. However, if you are arrested early enough in the day, you might have an opportunity to get to court later that same day.

If bail is set and it is too high an amount for you to make, then when you are brought to court, you have an opportunity to make an argument to the judge on why you should not be required to post any bail or, in the alternative, to have the bail request lowered to an amount you can afford.

The judge, in determining whether the accused is a risk of flight, must consider a variety of factors:

Does the accused person have a history of previous criminal charges?

• If the person does have a previous criminal history, do they have a history of defaults? Defaults are recorded when a person does not show up in court when they are supposed to.
• Does the person have strong ties to the community so that they would not want to become a fugitive from the area? Ties might include family, a job with a consistent employment record, a home, and perhaps having lived a very long-time in the area with many friends and a history of community involvement. Such a person is deemed more likely to appear than, let’s say, someone who doesn’t live or work in Massachusetts and was just briefly passing through the state when they were alleged to have committed a crime.
• Is the accused person already on probation or parole at this time on another case?
• Is the accused person currently out on bail on another pending charge?
• What is the nature of the charge and is there a potential very heavy penalty for that particular offense? Defendants are more likely to flee if it is a very serious offense and they are facing a huge penalty. That is why, if someone is facing an extremely serious charge such as murder, they likely might not be granted parole at all.
• Do they have a history of using aliases and false identification?
• Are there any current restraining orders in effect against the accused?
• Is there a history of mental illness or substance abuse?

If you are released on bail or without bail on your own personal recognizance, the judge can set conditions of release. These might include wearing a GPS monitor so that your movements can be tracked; getting substance abuse or mental health treatment; a stay-away or no-order where you must stay away from a particular location or person or not contact someone; must be subject to random drug or alcohol tests; are limited to where you might travel; must hand in your passport; surrender your firearms; have a curfew where you must remain at home during certain hours; and even possibly remain in home confinement.

There are a number of reasons why it is helpful to your case to be released on bail beyond just everyone’s understandably obvious desire to be free and not confined. These include:

1. You can maintain employment. Not only does everyone want to work to support their family, home and pay their legal bills, but, if the day comes when you are to be sentenced for the offense, there are circumstances where a judge might not want to incarcerate someone who is responsibly holding a job and possibly ruin their career.
2. You have an opportunity to show the judge that a period of time has gone by that you have been crime-free. Sometimes if a case goes on for a long period of time before it is completed, your attorney can say to the judge that a couple of years have gone by where you have done everything right and now have a track record of living a better life and the court should not interrupt this by taking you out of the community and into jail.
3. If you are not held in custody, you have a better opportunity to help with your defense. You can travel to your attorney’s office frequently to discuss the matter and plan a defense strategy, can help contact witnesses, raise money in case you need to hire witnesses and travel to the crime scene to point out important factors to your attorney.
4. If not in custody, you will have greater opportunities to get counseling whether for substance abuse or mental health issues. In the case that you either plead to or are convicted for the offense, a judge will appreciate the fact that you have begun the positive process of addressing some of the issues that resulted in your being charged in the first place.

When one is released on bail or on personal recognizance by the judge, the judge will explain that, if during the period of your release, you get charged with a new offense, your bail can be revoked and you can be held for a period of months without bail.

If a bail is set that is too high for you to come up with, you can request a bail review with the Superior Court.

A perennial concern is that bail can be made by people with better financial resources while the poor may languish in their locked-up circumstances for even the relatively modest amounts of $100 or $200 bail that they just cannot come up with. However, the Massachusetts Bail Fund is an organization that may come up with the bail for amounts of $500 or less or, if the bail is above that, can donate if the family or friends can make up the difference. However, recent crime legislation and a recent court decision has attempted to make some correction to this inequitable situation. Judges must now give specific consideration to a defendant’s inability to make a bail. If a judge sets a bail that the accused clearly cannot afford, the judge must explain in writing the decision for setting it at an unattainable amount.

Have you just been arrested and need help with a bail hearing or a bail review if the bail has been set unaffordably high? If so, contact us today for a free legal consult.

By Peter Elikann

The law states that in order to be charged with “engaging in sexual conduct for a fee” can be either: (1) engaging; (2) agreeing to engage; or (3) offering to engage in sexual conduct with another person for a fee. It is not necessary that any sexual conduct does, in fact, occur. There simply must be an offer or agreement to engage in this sexual conduct.

There are two necessary requirements that must be met in order for someone to be charged with a prostitution-related offense. First, that there must be an agreement or offer to engage in a sexual act or the sexual act is actually conducted. Secondly, there must be some kind of a fee offered, agreed to or actually paid. If there is no form of payment involved then it still might be possible to be charged with some other sex offense, but it would not be any form of prostitution since prostitution is essentially sex for a fee. The fee need not necessarily be for actual money. An exchange for another good or service can count as a fee which could include such things as drugs for sex.

In the past, if the police intervened in such acts, the customer often went scot-free while the prostitute, or payee so to speak, was the one who was arrested and faced the penalties. Formerly, the payor (commonly referred to as a “john”), most often a male, might be told by the police to just leave as the handcuffs were put on the person receiving or hoping to receive the fee But that is no longer the trend as the law now views both parties as equally engaged in this activity so therefore they must be treated equally under law. The courts now look at the old practice as unfair and inequitable that only one of the two must face the consequences and penalties while no more responsible than the other.

There are numerous crimes related to prostitution including:

1. Sexual conduct for a fee (prostitute): Where the person agrees to receive the fee, this is a misdemeanor where, if convicted, one faces a maximum sentence of one year in jail, a $500 fine, or both.
2. Sexual conduct for a fee (customer of prostitute):
3. Sexual conduct for a fee with a child under the age of 18:
4. Soliciting for a prostitute (or receiving compensation for soliciting for a prostitute:
5. Enticing a person for prostitution:
6. Support from or sharing earnings of a prostitute:
7. Inducing a minor into prostitution:
8. Living off of or sharing earnings of a minor prostitute:
9. Procuring a person to practice prostitution or enter a house of prostitution:
10. Keeper of a house of ill fame
11. Detaining or drugging to detain a person for prostitution:

Additionally, there has been a much greater effort to crack down on human trafficking. Law enforcement has been making greater efforts in Massachusetts to investigate massage parlors, chat rooms, ads and online solicitations. A common method is for the police in a sting operation to put an ad for massages in a publication or online such as Craigslist. Then, when a customer shows up at the location, they engage in a conversation with an undercover officer until there is an agreement to pay a certain amount of money for sex. Once the agreement is made, the prospective customer is arrested on the spot. Or the agreement to have sex for a fee is done through back and forth text messages or emails with the agreement documented in writing prior to the customer showing up and getting arrested.

Defenses

There are numerous defenses to prostitution charges. Just several of these defenses are:

• It is not enough for two people to agree to have sex. The police must have proof that there was a fee transaction involved. This is frequently difficult for the police to prove and therefore the case can be dismissed. A fee must be passed between the two people or a verbal deal to pay was made.
• One can’t be charged with a prostitution-related offense if they have been entrapped by law enforcement. If they are approached and an undercover law enforcement officer posing as a prostitute repeatedly tries to convince them to agree to sex for a fee when they originally had no interest, that would be insufficient under the law and an entrapment defense could be used.
• One can’t be charged with the general status of being a prostitute either walking down the street or in a chatroom. Again, a specific instance or paying sex for a fee must be proved. It is not a person’s status that can be charged; it is only their criminal act that can be charged.

Penalties include:

Sexual conduct for a fee (prostitute):

Sexual conduct for a fee (customer of prostitute):

Sexual conduct for a fee with a child under the age of 18: Where the person pays, agrees to pay, or offers to pay a minor under the age of 18, this is a felony carrying a maximum sentence of 10 years in state prison or two and one half years in jail; and a fine of no less than $3,000 or no more than $10,000.

Soliciting for a prostitute (or receiving compensation for soliciting for a prostitute: This carries a potential maximum sentence of two and one half years in jail, a fine of no less than $1,000 or more than $5,000 or both the fin and incarceration

Enticing a person for prostitution: This felony carries a maximum penalty of three years in state prison or one year in jail or a fine of $1,000 or both a period of incarceration and a fine.

Support from or sharing earnings of a prostitute: This felony shall be punished by a period of incarceration in state prison of 5 years ( of which, at least, 2 years must be served) and a $5,000 fine.

Inducing a minor into prostitution: This felony carries a mandatory minimum sentence of three years in state prison with a maximum sentence of five years and a $5,000 fine.

Living off of or sharing earnings of a minor prostitute: This felony carries a mandatory minimum sentence of not less than five years and a $5,000 fine.

Procuring a person to practice prostitution or enter a house of prostitution: This charge carries with it a mandatory sentence of three months and a possible maximum sentence of two years in jail along with a fine of between $100 and $500

Keeper of a house of ill fame: Those convicted of this misdemeanor can face a potential sentence of up to two years in jail.

Detaining or drugging to detain a person for prostitution: This felony carries with it a sentence of up to five years in state prison or between one to two and one half years in jail and a fine between $100 and $500.

Have you been charged with any offense related to prostitution or are you under investigation for it? If so, contact us today for a free legal consult.

What Happens at a Police Station in Massachusetts

Once you arrive at the police station, you will be booked, photographed and fingerprinted. During the booking, you will be asked some questions concerning basic information about yourself such as name, date of birth, address and phone number. You can answer these basic informational questions, but still should not answer any questions about the charges and the incident that led to your arrest.

You may make a phone call to whoever you’d like — usually to a friend or family member.

If it is early enough in the day, you will go straight to the courthouse after booking for the arraignment.

If it is too late to get to court you will probably spend at least a couple of hours (sometimes much more) waiting for a bail commissioner to arrive to determine whether to set a bail on you and, if so how much. Most of the time, there is just a one-time non-refundable fee of $40. Then you should be able to leave. If there is a bail and it is too high for you to make at that time, you will be brought into court for the arraignment and to argue a lower bail at the very next business day. (More on bail below) That should be the very next day. So, for example, if you are arrested on a Tuesday night, you will go to court Wednesday morning. However, if it is a weekend, since courts are closed on Saturday and Sunday, you will have to wait until the next business day which would be Monday. In the worst case situation, if you are arrested at the beginning of a three-day holiday weekend with the courts closed for the Monday holiday, you could wind up sitting for several days until Tuesday morning.

The Arraignment

If you are released from the police station, you will be required to show up at the local courthouse the very next business day. You must show up or else the court will issue a default warrant for your arrest. Be there on time and it is best to dress appropriately. There is no specific dress code so a male doesn’t have to wear a jacket and tie and a female does not have to wear a business suit, but there are judges who will expect you to dress in a way that shows respect for the court. So it is inadvisable to show up wearing such things as flip-flops, tank tops, sweat pants or cut-off shorts.

When you arrive at the courthouse, report to probation to check-in. Again, they will just be asking you for basic information about yourself such as name, date of birth, address and phone number. If you are claiming indigency, cannot afford a lawyer and wish to receive a court-appointed bar advocate attorney, they will ask you a number of questions about your finances to see if you qualify and you will have to sign a financial affidavit.

Then you will go into the courtroom and wait for your name to be called. Everyone is given the same arrival time of 9:00 am, so you will have to wait your turn to be called in what could be a crowded courthouse.

When you are called, your charges will be formally read to you. This is what makes us different than many other countries where people are arrested and not told for months what the accusations against them are and for what charge they were arrested.

A not guilty plea is usually entered at that time. The police report giving the police version of the story against you is available that morning. Then you are given a date to come back to court usually between a month or two months from then. The court will warn you that if you get arrested while this current case is ongoing, you might be held in custody. The judge might also set conditions for you to abide by during the pendency of the case including such things as staying away from a particular location or person or an order forbidding use of alcohol and drugs.

In all likelihood, you will be out of the courthouse on the day of your arraignment some time that morning. In rare instances, one is stuck there all day until the court session closes around 4:30.

For some, though, where there is a question of bail, the arraignment is also where bail is determined. If bail was set by the bail commissioner earlier back at the police station, and the particular accused person cannot afford it, they and their attorney can argue before the judge for a lower bail or no bail at the arraignment.

Or, even if no bail was requested from them at the time of the arrest or they paid a bail back at the police station, there is a chance that bail could still be set against them at the arraignment.

Bail is generally determined by whether the judge believes that the accused defendant might pose a risk of flight and not return on future court dates. At a bail hearing, the judge will consider a number of factors to determine this including:

• Whether the defendant has a previous criminal history;
• And, if so, did they have a number of defaults in the past where they did not show up to court dates;
• The nature of the charges whether they are for very serious offenses;
• The potential penalty for the accused crime. For example, if there is a chance of lengthy incarceration that might be an incentive for the accused person to flee and not return to court;
• Whether the person was on probation or parole for an earlier offense when they got arrested for this new crime;
• The defendant’s ties to the community. It is assumed by the court that someone with many family members in the area, who always lived in the general area, and is employed there and very involved in the community will be less inclined to want to become a fugitive and leave his family and familiar home. This, as opposed to someone who is just passing through the area of the arrest and has no ties to the community or family, jobs or roots.
• Whether the accused person has a history of serious alcohol or drug abuse.

Although being held on bail is generally determined by the risk of flight a defendant poses, if there is concern for the potential safety of an individual or the community caused by the defendant, the prosecutor can move for a dangerousness hearing where it will be argued whether the defendant will be held without bail.

Counsel at Arraignment

It is best to have an attorney at every step of the process and, if possible, to show up at the arraignment with you the day after the arrest. Most criminal defense attorneys charge a flat fee for the entire case and do not charge extra to do an arraignment.

However, if you are unable to hire an attorney to be there at the beginning of your case for the arraignment within hours of your arrest, you don’t need to panic. If there is an attempt to hold you on bail and you are not indigent, the court will still likely appoint you an attorney for that first day even if it will only be for that one day.

An attorney can be crucial at the very beginning. Perhaps you would be eligible for some kind of diversion program that could ultimately result in a complete dismissal of your case, but that you must notify the court of just prior to or during the arraignment. There are a number of such diversion programs usually for the more minor offenses that are available to young people, veterans and those who commit certain relatively minor crimes. Without proper guidance from counsel, you might not be aware of these programs and have to risk fighting the charge the entire way.

Or a first rate experienced attorney might give you the best chance of avoiding being held on bail or being found to be dangerous and therefore held incarcerated without any bail.

It is true that you can’t be forced to be represented by an attorney and everyone in the United States has the right to be their own counsel even if charged with the most serious charge which is murder. But legal cases can be complex and, if one wants to represent themselves they might be at a disadvantage of not knowing the law and legal procedures such as certain evidentiary and non-evidentiary motions and rules such as the complicated rules of evidence. While no guarantees as to the results of a case can ever be made, an experienced attorney will give will give you your best opportunity of getting the finest result if you go through the unfortunate experience of being arrested.

Read more about what to do if you are arrested in Massachusetts in our other blog post in our arrest series.

Being arrested is usually a terrifying, overwhelming experience as you suddenly find yourself in a situation over which you have absolutely no control. Not only that, but it can result in extreme consequences to your life potentially including incarceration; loss of a job or entire career; loss of housing; loss of licenses; loss of relationships or family; great expenses; and damage to one’s reputation and standing in the community.

An arrest itself, though, might not be the end of the world as most of the serious consequences happen if you are eventually actually found guilty, convicted and then receive a criminal record. An arrest merely means that you are a person accused and does not mean you have been found to have done anything wrong. People who are completely and factually innocent get accused more often than you’d think, so no stigma should attach to an arrest. It is the potential conviction down the line that is a greater problem.

In order to charge someone with a crime, an arrest doe not necessarily have to take place. Sometimes, if the offense is minor, the police will tell you that you will eventually be receiving a summons in the mail ordering you to appear in court. If arrested, however, you will be handcuffed, read your rights, placed in a police vehicle, and transported to the police station.

Do Not Make a Statement to the Police

The first thing you need to know is not to speak to the police. People think that they can talk their way out of the arrest. That almost never happens. It is unlikely anything you say can prevent the charges once the allegations are made. The police’s goal is usually to get your statement so that it can eventually be used against you. They will write it down and then hand it off to the prosecutors at the court. The police officer can rarely make any deals with an accused person. The government person who might be able to make a deal with you way down the line during the court process would be a prosecutor.

It is generally not advisable to speak with the police even if you are genuinely innocent. For example, if you are truly upset and a bit confused what is going on, if you make the slightest innocent error or slip of the tongue in what you say, it will definitely be used against you. You can get charged with some form of obstruction of justice such as making a false statement to a police officer or, although it may not make sense to you, such false statements here in Massachusetts can trigger the witness intimidation statutes even though innocent errors in your statement do not seem to have anything to do with intimidation. Your protestations that you made a mistake in the heat of the moment under pressure might not likely be believed.

Sometimes those who are arrested don’t realize that they are giving valuable information against themselves or even accidentally confessing. For example, if you are being accused of drunk driving and the police officer asks you how many you had to drink, you might think you are helping yourself by saying, “Only a couple.” You might not realize that, even if that is not proof positive that you were driving under the influence of alcohol which is the crime, it is helpful to the police that at least you just confessed to drinking and driving. Or a person may be accused of a drug transaction thinks he is helping himself by blurting out, “I didn’t sell any drugs or make any money. I simply gave some to some friends for no money.” They don’t realize that the crime they are being accused of is drug distribution, not drug selling. So, even if they never made a dime of profit, they are still confessing to the distribution charge.

A police officer might attempt to cajole a statement out of you by saying something like, “If you won’t talk to us, that must mean you’re guilty. If you were innocent and didn’t do anything, you would talk to us.” That is simply not true. You can reply that you wish to exercise your right to speak with an attorney first which even a truly innocent person would be advised to do.

Read more about what happens when you are arrested in Massachusetts in our other piece in this arrest blog post series.

Indecent assault and battery is essentially any kind of intentional unconsented-to touching of the private area of another person.

Private areas include genital areas, public areas, buttocks, breast, thighs and abdomen or other areas. However, charges of indecent assault and battery may not be limited to those areas and it is open to interpretation by what would be considered offensive or immoral under contemporary standards of decency. It may also be determined by the context in which the touching occurred. For example, in certain instances, hugging or kissing another person against their will could very well qualify. Such a charge would apply whether the victim was either clothed or unclothed.

The charge of indecent assault and battery differs from rape that is defined as an unconsented-to sexual intercourse with another person who is compelled to submit by either force or threat of bodily injury.

It also differs from a regular assault and battery which is defined as an unconsented touching of another person though not necessarily of a sexual nature.

There are different penalties for indecent assault and battery on a person aged 14 or older or indecent assault and battery on a person under the age of 14. If the victim was under the age of 14, even if the minor consented to the touching, it would still be a crime. This is because any victim under the age of 14 is considered under the law to lack capacity to consent. That means that the child is so young that he or she is considered legally incapable of consenting to such sexual contact.

This is also true of the charge of indecent assault and battery on a person with intellectual disabilities since they, too, would be considered, under the law, as having no ability to make a reasoned consent. Additionally, there are statutes outlawing indecent assault and battery on an elderly person or person with a physical disability as they may be extra vulnerable to a physical assault.

To be convicted of indecent assault and battery, the prosecution must prove beyond a reasonable doubt that:

• The alleged person was of a certain age;
• The touching was intentionally on purpose;
• The touching was either without the permission of the alleged victim or not justifiable;
• That the touching was, by today’s standards, indecent and offensive meaning that the touching could be reasonably and commonly understood to be that of a sexual nature particularly that the area of the body touched was considered private such as the breast, buttocks or genital areas;

If convicted of indecent assault and battery of a victim 14 years or older, the penalties include up to two and one-half years in the House of Correction or five years in state prison.
If convicted of indecent assault and battery of a victim under the age of 14 years, the penalties include up to two and one-half years in the House of Correction or ten years in state prison.

Additionally, upon conviction, it is a requirement that one register with the Sex Offender Registry Board. Obviously, being on the sex offender registry can lead to a variety of severe consequences including its effect on housing, jobs, travel, immigration status, and general reputation in the community.

Also, it is a requirement that, as with most sex offenses, one must wear a GPS monitoring ankle bracelet during the entire period of probation one receives which could typically be anywhere up to 5 or 10 years. During that period of time wearing the mandatory GPS device, one may not leave the Commonwealth of Massachusetts although it might be possible under certain circumstances, to go before a judge to get permission to travel on a particular specific occasion that comes up.

The law recognizes a number of defenses to indecent assault and battery to try to ensure that an innocent person is not falsely accused. Many of the defenses pertain to the issue of consent.

• Did the accused not realize the intoxication of the alleged victim by either drugs or alcohol had reached a level where, even though consent was given or no lack of consent was expressed, the alleged victim was not legally capable at the time?
• Did the accused wrongly presume that there was consent because there had been consensual sexual contact in the past with the alleged victim?
• Was there a genuine mistake through words or actions that consent had been given?
• Was the touching purely by accident or was it incidental?
• Did the incident, in fact, never even happen and a false accusation is being made to get revenge for an unrelated reason?

The law of indecent assault and battery is vaguely written, subject to interpretation and is complicated in its application. It is important to get the best representation possible by a veteran attorney with long experience in representing people falsely accused of the charge of indecent assault and battery. This is particularly true in that the legal penalty of being listed on the sex offender registry can last a lifetime far beyond even a period of incarceration or probation.

Have you been charged with indecent assault and battery or are you under investigation for it? If so, contact us today for a free legal consult.

Whatever one thinks of pornography, most forms are actually legal with the significant exception being child pornography.

More frequently than one would expect, some people wrongly assume that, because it is so readily available on the internet, it must be legal. It is not. It is, however, in fact, much more accessible than ever before. Until recently, people looking for pornography would have to make much greater assertive efforts to obtain it. They could travel to a specialized “bookstore” or send away to have things sent to them in a plain brown wrapper.

Nowadays, it is available instantly at the press of a button on one’s laptop. This may explain why the number of prosecutions for such illegal material has absolutely exploded and is more prevalent in courtrooms today than ever. One prosecutor described such prosecutions as equivalent to “shooting ducks in a barrel.” They are so easy to track down online with such a well-documented provable trail that it makes a defense all the more challenging. The only thing holding back an even greater number of prosecutions is the lack of more law enforcement manpower to monitor online activity.

Surprisingly, a number of people express surprise that the looking at this material online is such a serious crime. They say something to the effect of “But I was only looking at this by myself in the privacy of my room with no one else around. Who am I hurting? How can passively looking at photographs when no one else can see me doing it hurt someone? I would never ever approach or bother a child in person.”

The law clearly does not recognize this sentiment. The answer is that you, personally, just looking at a photo may not think you’re hurting the innocent child in that photo, but somewhere down the line someone else is. And if you weren’t providing an audience or market for that photo, then the actual in-person abuser taking the photo or video might not be creating it for you at his end.

Many others mistakenly believe that, if one looks at child pornography, then “deletes” it from their computer, that they are not in any legal jeopardy because it no longer exists. However, they may not be aware that anyone with knowledge of computers can tell you that a “deleted” item, still exists on the computer hard drive. It just can’t be easily and readily seen or accessed. However, if a computer is seized by the police, their forensic experts using their advanced skills and equipment, can still find it.

In addition to facing possible incarceration for such an offense, one will be required to be placed on the sex offender registry.

There are a number of defenses to be explored if one either has been charged or is being investigated for child pornography charges. For example, it is occurred that innocent people have been charged if a friend, roommate, family member or neighbor or others with access to ones computer used it to look at child pornography without the computer owner’s knowledge. Additionally, it has also happened that online viruses and hidden files have unwittingly placed such material on an innocent person’s computer. Every year that goes by, with the advancements in internet technology, everyone remains increasingly vulnerable to material being unknowingly placed on ones devices. Also, an attorney can investigate whether you or your computer were the object of an illegal search where then the entire case might have to be dismissed.

For these reasons, it is important that one contact an attorney skilled in the defense of these kinds of charges immediately upon learning that an investigation has commenced.

This is how these cases frequently unfold. Usually, unknown to the suspect, law enforcement personnel are monitoring illegal websites including file-sharing sites or perhaps someone has tipped them off. Once they identify users of the site, they get a search warrant, show up at the suspect’s home, and then seize every suspected computer or electronic device. The police very often do not arrest on the spot but rather wait until their forensic staff has examined the devices for illegal material back at the lab. This may very well take a number of months. At that point, if one hasn’t been arrested yet, they will either be arrested at that time or summoned into court.

It is difficult to determine in advance where one will be prosecuted. Some cases are prosecuted in the District Court of Massachusetts while others are indicted to the Superior Court. Still others are prosecuted in federal court.

The three most common charges in Massachusetts state courts concerning such pornography are:

• Possession of child pornography
• Dissemination of child pornography
• Posing a child in a state of nudity

In state court, there is an increasing number of prosecutions for dissemination rather than just mere possession. Some defendants are surprised when they are charged with dissemination because they insist that they never shared their photos with anyone. However, since large numbers no longer find this illegal material on regular websites, but rather on file-sharing sites, they are charged with dissemination. This is because the nature of file-sharing sites is that you can take whatever material you want off of another person’s files and anyone else can take material off of yours. So, even if one is unaware that someone has ever taken files off their site and even if no one ever has, they can still be charged with the more serious charge of dissemination just for having been a member of a file-sharing site.

Concerning the charge of possession of child pornography, the prosecutor must prove beyond a reasonable doubt that:

1. The defendant purchased or possessed pornographic material of a person under the age of eighteen.
2. Pornographic material means visual material of almost any medium that, either actually or by simulation, exhibits: (a) sexual intercourse with a person or animal; (b) sexual contact; (c) masturbation; (d) lewd touching; (e) excretion or urination in a sexual context; (f) sexually sadistic, masochistic or sadomasochistic acts; (g) lewd display of genitals, buttocks, pubic area or female breast(s);
3. The defendant purchased or possessed such material knowingly;
4. The defendant had knowledge of the nature or content of that material; and
5. The defendant knew or reasonably should have known that the child shown in that material was under the age of eighteen.

Concerning the even more serious charge of dissemination of child pornography, the prosecutor must prove beyond a reasonable doubt that:

1. The defendant disseminated pornography.
2. That pornography exhibited a person under eighteen years old in a state of nudity or sexual conduct;
3. The defendant knew or should have known the contents of that material.
4. The defendant disseminated that material with lascivious intent. Lack of lascivious intent can be proven through evidence of a scientific, educational or medical purpose for a school, library or museum.
5. The defendant intended to disseminate that material.

The most serious of all child pornography charges — posing or exhibiting a child in a state of nudity or sexual conduct is a serious charge contains the following elements:

1. The defendant: hired; coerced; solicited; enticed; employed; procured; used; caused; encouraged; or knowingly permitted a child under aged eighteen to pose or be exhibited in a state of nudity or sexual conduct.
2. The defendant knew or should have known that the defendant was under the age of 18.
3. The defendant had lascivious intent.
4. The purpose of the defendant’s actions was representation or reproduction in any visual material. Free legal consult

If the case goes to federal court rather than state court, the consequences can often be even more serious. If one is charged with receiving child pornography rather than just possessing child pornography (even though there may seem to be little difference), one will face a mandatory minimum sentence in the federal penitentiary of 5 years. For producing child pornography, one is facing a mandatory minimum sentence of 15 years.

If you are under investigation for child pornography in Massacusetts, contact us today for a free legal consult.

There are two types of indecent exposure charges in Massachusetts. One is a misdemeanor and the other is a felony.

The more minor offense (though still serious) is called indecent exposure and has to do with the actual conduct or behavior. One is charged with the more serious crime of open and gross lewdness and lascivious behavior when one, through that behavior, intentionally attempts to shock and alarm others.

Examples of the misdemeanor of indecent exposure might include urinating in public; more minor public sexual acts; masturbation in a public setting even if one is in their own home or car; having exposed genitalia; or wearing little or no clothing in a setting where the public can see even if it is on private property.

To be convicted beyond a reasonable doubt of this offense, there are three elements that have to be met:

1. Exposure of genitals
2. Being seen by at least one other person who consider it offensive
3. Having it be an intentional act

It has been defined as “an intentional act of lewd exposure, offensive to one or more persons.”

The punishment under Massachusetts General Laws Chapter 272, Section 53 can be a period of incarceration up to 6 months; a $200 fine; probation; an a criminal record.

Although the crime of indecent exposure may be a misdemeanor and would not generally fall under the category of major crimes, it must be challenged aggressively. This is because there is such a serious stigma to being charged with any crime that is considered sexual that it can have severe consequences to one’s reputation and standing in the community. This is aside from the legal consequences. In many ways, a conviction for this misdemeanor can have a more negative impact than a number of more serious felonies because there is such a social taint to being deemed a sex offender.

There can be other repercussions to such a conviction such as the loss of employment, housing or educational opportunities.

If the crime is aggravated, the more serious offense of open and gross lewdness and lascivious behavior can be charged. Although the crime of indecent exposure applies to just the exposure of the genitals, the other crime of open and gross lewdness and lascivious behavior may include not only the genitals, but also the buttocks or female breasts. The key to an open and gross charge is that it must be proved beyond a reasonable doubt that the act was done with the intention to cause shock and alarm in the other person or persons.  A victim must testify that he or she experienced shock and alarm and that is not always the case.

A person did not have to set out with the intent to try to knowingly break any law, just that they intended to do the act to cause shock and alarm in another person.

The distinction between the charges of indecent exposure and open and gross lewdness and lascivious conduct is that an indecent exposure case is about the behavior one is committing. An open and gross lewdness and lascivious conduct case is additionally about the impact this behavior has on others.

The maximum penalty for the charge of open and gross lewdness and lascivious behavior is three years in state prison; a $300 fine; probation; and a criminal record.

Even though it is, in effect, a sex offense, someone who is convicted of indecent exposure is not required to sign up for the sex offender registry. Neither does one for a conviction on a first offense charge of open and gross lewdness and lascivious conduct. However, if there is ever a second conviction of open and gross lewdness and lascivious conduct, then registration on the sex offender registry is mandatory.

There are a variety of defenses such as whether the accused person was actually exposed; whether the person charged with the offense was actually in a place where they had an expectation of privacy; and whether the person reporting an incident that resulted in an open and gross charge was actually shocked and alarmed as required particularly if they made no such mention when they first told the police.

If it is eventually determined that the case cannot be dismissed nor is it likely that it can be won at trial, then your attorney can pursue another approach to avoid a more severe sentence or even incarceration. In lieu of such greater punishments, the alternative can be for the accused to be evaluated by experts in the field and then begin a course of treatment that will work on whatever problems or issues the accused might have that resulted in such an offense. Treatment rather than punishment makes a great deal of sense not only to help the accused person, but also to help to keep the public from being subjected to such behavior.

Again, even if one avoids incarceration on either one of these charges, the impact to one’s reputation and the damage to one’s social status within the community on these shunned charges in particular is so disproportionately outsized that it is imperative to leave no stone unturned in trying to avoid a conviction with the best assistance from a veteran attorney with exceptional experience in the defense of sex offense charges such as indecent exposure.

Have you been charged with indecent exposure or open and gross lewdness and lascivious conduct? If so, contact Peter Elikann today for a free legal consult.

There are several reasons why an individual would appear before the Sex Offender Registry Board. These might include either a hearing to try and get off of the Sex Offender Registry or to try and lower their Sex Offender Registry classification level from either Level 3 or Level 2.

What the Sex Offender Registry Board (SORB) is looking for is to see if you have a track record of going for a longer period of time staying out of trouble, getting treatment and living a life of stability and responsibility.

For example, the best case profile one can present is that of a person who is employed or getting an education, has a family or long-term relationships, friends, active in the community, long-term ties such as not constantly moving, and does a lot of mainstream things such as dinners or regular card games or vacations with family and friends. This, as opposed to someone who has few connections to family or friends, never holds a job, constantly moves from place to place and has no connection to anyone or anything. These may seem to be unfair vague generalities as certainly, no one can predict with absolute certainty who will commit future crimes and who will not. However, the theory, supposedly backed by research studies, is asserted that people who lead stable lives with connections to family and friends tend to have dramatically lower re-offense rates.

So, if one is requesting reclassification to a lower level or to terminate early your obligation to be on the Registry at all, but not requesting a hearing, documents to be sent in might include:

• A letter or comprehensive evaluation from a forensic therapist who specializes in sexual issues that can include such things as reasons why, in their expert opinion, you do not present as high a risk of ever reoffending or present as high a danger to the community. The forensic therapist can also note the course of treatment you’ve been undergoing and how actively engaged in it you have been. Use of a forensic psychologist is very helpful for this process and is highly recommended.
• Any documentation that you have been living for quite some time a life of stability and responsibility.
• Letters from family, friends, teachers, employers, clergy, or community leaders noting the kind of good mainstream contributing life you’ve been living.
• Confirmation that you’ve been steadily employed or engaged in education.
• Perhaps you’ve been engaged in doing for others through community service, charitable groups, the church, volunteering on projects or just doing things for other on a personal level such as shoveling the snow of elderly neighbors for free without being asked.
• Evidence of any programs you’ve been engaged in such as drug or alcohol treatment programs, if appropriate.
• Records from prison, jail or probation of how well you did while either incarcerated or on probation.

What to Expect During a Sex Offender Board Hearing

If one is requesting a hearing, these documents should also be submitted. At the hearing, one can testify oneself, have a forensic therapist testify and also have family, friends, teachers, employers, clergy or community leaders or anyone you believe would be helpful to testify about your character and your life.

Remember, the hearing is not a retrial of the case and you are not there to treat it as an appeal and to argue the facts of the old charges to try to prove your innocence, You can exercise those rights in another forum of the courts through the appeal process. Here, the results of your trial or plea are assumed and the purpose of the SORB hearing is solely to determine what level of danger the hearing examiners at the Sex Offender Registry Board determine you to present.  

The burden of proof is on the Board using the standard of clear and convincing evidence to prove their designated classification level.  The sex offender does, however, retain an initial burden of production to come up with new information to introduce evidence of changed circumstances showing that he or she “does not pose a risk to re-offend or a danger to the public.”

If the petitioner opts for an actual hearing before the board, it is almost the same as an initial classification hearing. He or she has the right to an attorney. The hearings are not held in courtrooms. It is usually in a room sitting around a table. The hearings are private and members of the public are not allowed to attend. Sitting at the table are the petitioner and petitioner’s counsel. There is a hearing examiner or examiners. There is also an attorney from the Sex Offender Registry who essentially acts as opposing counsel. The SORB attorney generally introduces no witnesses and just submits the paperwork regarding the case as the evidence.

At the hearing, both attorneys may make opening statements. Then the petitioner can bring in witnesses one at a time. Witnesses might include the forensic therapist to give an expert opinion on the potential dangerousness or lack thereof of the petitioner; the friends and family of the petitioner; the petitioner his or her self; and whoever else one might think could give relevant insight such as teachers, employers, clergy or community leaders. The petitioner’s attorney will question these witnesses and the SORB attorney may or may not choose to cross-examine them. Then, both attorneys may give closing arguments.

The hearing examiner then usually does not announce a result right away. The hearing examiner will review all the evidence and testimony submitted and consider it along with a variety of other factors including how long the petitioner has been in the community; the seriousness of the original offense; the number of offenses committed; the offender’s behavior while either incarcerated or on probation; and whether there is a history of alcohol or drug abuse.

An experienced veteran attorney who knows the law and procedures before the Sex Offender Registry Board can help shepherd you through the process every step of the way from helping you determine who your witnesses are to gathering the proper documents to drafting a memorandum that presents all the arguments in your favor to selecting the expert forensic evaluator to do the questioning and arguing your case at the hearing which is similar in some ways to a trial.

Once you’re listed on the Sex Offender Registry in Massachusetts and you’ve been given a classification level this is not the final word permanently etched in stone. If you’ve been designated as a Level 3 (high risk) or a Level 2 (moderate risk), you can, in the future, apply to get reclassified one or two levels lower all the way down to Level 1 (low risk).

However, a period of time must go by. You can apply to be reclassified every three years, provided that, if you were, in fact, incarcerated for the offense, you must have been released and out in the community for at least 5 years.

In order to apply for a reclassification, you must make the request in writing. Then you have a choice – either request an actual hearing before the board or simply submit in writing the reasons why it would be more accurate to place you at a lower classification level and include whatever documentation you have to offer.

The petitioner is required to show “changed circumstances” since the last time they were before the board for determination of their classification level.

Click here to learn more about preparing for the Sex Offender Registry Board

Are you interested in lowering your sex offender registry classification level? Contact expert criminal defense lawyer Peter Elikann today for a free legal consult.

It is possible to completely get off the Sex Offender Registry in Massachusetts after you’ve been on it for a number of years. Depending on the offense, some people are designated to be on the registry for life while others must be on it for 20 years. However, only if you’re scheduled to be on the registry for 20 years, can you apply for early termination at halftime after 10 years. That is 10 years after conviction, adjudication, release from custody, or supervision such as probation – whichever occurs last.

To qualify, you must not have committed another sex offense within those years since your conviction. The burden of proof is on the Sex Offender Registry Board to prove by clear and convincing proof the appropriateness of your remaining on the Registry. The sex offender does, however, retain an initial burden of production to introduce evidence of changed circumstances showing that he or she “does not pose a risk to reoffend or a danger to the public.” The offender needs to come up with “new information” of a decreased risk of reoffense or degree of dangerousness since the last time you were before the board for determination of your classification level or the last time you requested early termination if you ever did so.

In order to apply for an early termination, you must make the request in writing. Then you have a choice – either request an actual hearing before the board or simply submit in writing the reasons why it would be appropriate to terminate your obligation and include whatever documentation you have to offer.

Click here to learn more about preparing for the Sex Offender Registry Board

Are you interested in terminating your obligation to register with the Sex Offender Registry? Contact expert criminal defense lawyer Peter Elikann today for a free legal consult.

If one is under the age of 21 and, unaccompanied by an adult, is found knowingly possessing, carrying or transporting an alcoholic beverage, they can be charged with being a minor in possession of alcohol.  The punishment is a fine of $50 for the first offense and $150 for a second offense or any subsequent offense.

While it may not be considered the most serious of crimes and it does not carry the possibility of incarceration, it is nevertheless a criminal offense that can result in a conviction and criminal record. If convicted, it will be reported to the Registry of Motor Vehicles and the offender will lose his or her driver’s license for 90 days.

But that may not be the worst of it. It shouldn’t be taken too lightly because any criminal record may have serious consequences. It could hamper someone when they apply for college as the college may become aware of a criminal record and question the applicant about it. Then, even though it is a relatively low level of crime, it might be the thing that causes the school to reject the applicant with a criminal record in favor of someone without any criminal record. Or deny the awarding of college scholarship money.  It could also hurt someone when they apply for a job or a professional license or even to do volunteer work.

If the police catch a minor in possession of alcohol, they do have an option on how to go about charging you. They could arrest you on the spot.  Or you can be summoned into court by way of a letter.

If one is at least 18 but below the age of 21, they will be charged as an adult and given an adult criminal record instead of a juvenile record. It is an odd quirk of the law that one can be considered a minor too young to possess alcohol if they are under the age of 21 and yet, on one’s 18 th birthday, any time one gets into trouble with the law, one will be prosecuted, not in juvenile court but rather in the regular court along with all the adults.

However, if charged, if handled correctly, there is plenty of hope here in resolving this matter so that it does not affect the future of the offender. The goal of the attorney would be to try to get you out of this without a criminal record. There are a variety of ways this can be done.  

You could enter a diversion program where, instead of being prosecuted to the full extent, you can do community service or take a course on the dangers of alcohol. Upon the successful completion, the charge can be dropped.

Or your attorney can just negotiate an agreement where the case can be immediately dismissed.

Or through either pretrial probation or a continuance without a finding, the case can be dismissed after a period of time goes by as long as there are no new criminal charges that come up during that period.

Another effective method may be to request what is known as a clerk’s hearing. One way to request a clerk’s hearing, also known as a show cause hearing, is if you are handed or mailed a citation.  Consult a defense attorney right away. The citation might notify you in very fine print that you have just four days to file a request for a clerk’s hearing at the local courthouse. At that relatively informal hearing a decision can be made whether to charge you at all. If you can nip it in the bud at the clerk’s hearing by getting a ruling that a complaint will not issue, then there will be no record in existence that you were ever even charged.

Getting out of this without a criminal record is not at all unrealistic if the minor has no prior criminal record and is leading an otherwise good life. They may be given the benefit of the doubt and given a break on this – their very first encounter with the criminal justice system.

One always has the option to fight the case all the way and go to trial. There are a variety of defenses that can be used to win a verdict of not guilty o not delinquent. For example, the prosecution must prove beyond a reasonable doubt that the accused young person was “knowingly” in possession of the alcohol. Simply being nearby its presence would not be enough. This means that, for example, if the accused is at a party and someone else has alcohol, the prosecution must prove that it was knowingly possessed by the accused. It has, indeed, happened that the police will arrest every single person attending a party where there is alcohol regardless of whether the accused person was drinking alcohol or in possession of it. Or if you are in a car with a bunch of other people and one of these other people has alcohol, a good criminal defense attorney will argue that you cannot be fairly convicted if that alcoholic beverage is not yours. Nor should being in a public park near where others are drinking nearby be enough to get one convicted. Tailgating parties at, let’s say, Gillette Stadium before a sports event or concert, are notorious for garnering the event-goers a charge of being a minor in possession of alcohol.

There is an exception to this law and that is when a person between the ages of 18 and 21 who possesses, carries or transports alcoholic beverages in the course of their employment. For example, if an 18-year old has a job at a restaurant where alcohol is served they might be allowed to lift or carry it.

Are you or is your child charged with being a minor in possession of alcohol? Contact our Boston criminal defense law firm today for a free legal consult at (617) 742-9462.

The crime of disorderly conduct in Massachusetts is a misdemeanor that also serves as something of a catch-all charge. A variety of criminal acts fall under it.

For example, disorderly conduct can be charged if a person is noisy and rowdy in a public place; it is occasionally used for relatively minor scuffles or assault and batteries; or it can be charged if one creates any kind of public inconvenience or annoyance. For example, when a police officer tells someone to move their double-parked car and the person repeatedly argues with the officer and refuses to cooperate. In fact, any lack of cooperation, disrespect or rudeness toward a police officer often results in the charge of disorderly conduct.  Disorderly conduct encompasses all kinds of behavior ranging from public urination to public drunkenness to resisting arrest to lewd acts out in public

There are numerous incidents that fall under the charge of disorderly conduct including most any offensive behavior that interferes with the peaceful and orderly functioning of a neighborhood. It is an unusual charge in that it often encompasses activity that might not always be illegal, but is illegal under particular situations. For example, if one is singing while walking down the street, it is generally not considered a crime. But if one is singing outside late at night until the neighbors complain and then the person refuses to stop even after the police arrive and ask him or her to, that behavior, while permissible under other circumstances, suddenly becomes illegal.

Many disorderly conduct charges occur when people are intoxicated and acting boisterous and unruly often at concerts, sporting events or other public gatherings.

In order to convict a person accused of disorderly conduct, the prosecution must prove beyond a reasonable doubt three things. (1) That the person is engaged in violent or offensive or boisterous behavior or behavior that creates a threat to public safety or the public sense of well-being that serves no legitimate purpose. (2) That the behavior takes places somewhere that the public can see it. (3) That the accused person either committed this behavior intentionally or recklessly resulting in the distress, aggravation, offense to or disruption of the public.

The charge of disorderly conduct is, in fact, a misdemeanor and is, comparatively speaking, a minor crime. A first offense conviction for disorderly conduct carries with it a maximum fine of $150, but there is no chance of jail time. However, if one is arrested a second time, they could face a potential jail sentence of up to 6 months or a $200 fine or both.

While it may not be considered the most serious of crimes and it does not carry the possibility of incarceration for a first offense, it is nevertheless a criminal offense that can result in a conviction and criminal record.

But that may not be the worst of it. It shouldn’t be taken too lightly because any criminal record may have serious consequences. It could hamper someone when they apply for college as the college may become aware of it and question the applicant about it. Then, even though it is a relatively low level of crime, it might be the thing that causes the school to reject the applicant with a criminal record in favor of someone without any criminal record. Or causes a school to deny the granting of college scholarship money.  It could also hurt someone when they apply for a job or a professional license or even to do volunteer work.

The police do have an option on how to go about charging you. They could arrest you on the spot.  Or you can be summoned into court by way of a letter.

Once charged, if handled correctly, there is plenty of hope here in resolving this matter so that it does not affect the future of the offender. The goal of the attorney would be to try to get you out of this without a criminal record. There are a variety of ways this can be done.  

You could enter a diversion program where, instead of being prosecuted to the full extent, you can do community service or take a course. Upon the successful completion, the charge can be dropped.

Or your attorney can just negotiate an agreement where the case can be immediately dismissed.

Or through either pretrial probation or a continuance without a finding, the case can be dismissed after a period of time goes by as long as there are no new criminal charges that come up during that period.

Another effective method may be to request what is known as a clerk’s hearing. One way to request a clerk’s hearing, also known as a show cause hearing, is if you are handed or mailed a citation.  Consult an attorney right away. The citation might notify you in very fine print that you have just four days to file a request for a clerk’s hearing at the local courthouse. At that relatively informal hearing a decision can be made whether to charge you at all. If you can nip it in the bud at the clerk’s hearing by getting a ruling that a complaint will not issue, then there will be no record in existence that you were ever even charged.

Getting out of this without a criminal record is not at all unrealistic if the accused has no prior criminal record and is leading an otherwise good life. They may be given the benefit of the doubt and given a break on this – their very first encounter with the criminal justice system.

Have you been charged with the crime of disorderly conduct? Contact our Boston criminal law firm today for a free legal consult at (617) 742-9462.

Once someone doesn’t show up for a court date and is therefore in default, there is usually a warrant issued for that person’s arrest. Perhaps they were in default because they were originally arrested, put up bail, were told to show up at court the next day for the arraignment, and never even once set foot in the courthouse. Or perhaps they had an ongoing case against them, showed up for a number of court dates as the case progressed, and then, at some point, just stopped showing up at court before the case was ever resolved. Or perhaps, they disposed of the case by way of a plea or trial, were then placed on probation, violated some conditions of their probation, were told to show up in court for a probation violation hearing, and then just disappeared.

In every one of these instances, the arrest warrant never goes away but is always outstanding. That may be why some people are shocked when, as far away as 25 years after they became a fugitive, they are stopped and arrested on the old warrant. Despite their protests of “Oh, come on, that was so very long ago” or “I don’t even remember that. Are you sure?” the arrest warrant is still in full force and effect.

Sometimes people are arrested on an old warrant because the police actively search for and find them. Other times people are arrested on old warrants by random chance. For example, they get stopped in their motor vehicle for a speeding ticket, the officer issuing their ticket routinely calls in and runs their name to see if there are any outstanding warrants before they let the driver leave, and their name pops up as being in default.

If you are, in fact, found to have an outstanding default warrant, then you are not supposed to be able to be released on bail until you are brought to court and a judge makes that determination. That could be the next morning or, if you are picked up just before the weekend, you might have to wait several days in a police station lock-up cell until the court reopens on Monday morning. This is unlike many other instances where someone is arrested, brought to the police station and can be bailed out directly from there within the hour.

If you have moved away and are living out of state then the situation might be even more difficult. If you are picked up out-of-state, you could be held for a number of weeks as that particular state may be waiting for an answer whether Massachusetts deems the case important enough for it to have you extradited and send Massachusetts law enforcement officers to travel to pick you up.

If you have not shown up in court and have an arrest warrant outstanding against you, a criminal defense attorney can be helpful in helping you get rid of that warrant. But, in most cases, it will likely involve you and your attorney going to court to accomplish that. If you are from out of state and are traveling to Massachusetts, your criminal defense attorney can arrange things with the court and the prosecutor’s office in advance so that you might be able to remove the default and then go home on the same day if you’d like.

After a person gets rid of their fugitive status and has their warrant removed, they are no longer in default. But that does not mean the case is thrown out or dismissed. It just means you no longer have an arrest warrant against you and now the case can proceed against you in regular orderly fashion. Sometimes, if the case is particularly old, the prosecutor may no longer have enough evidence still existing to make their case. It may be that witnesses can’t be located after all that time has passed or may even have died; police offices on the case years earlier may have retired; or the evidence such as, for example, seized drugs not being saved. So, once the warrant is removed, the prosecutor will have to make a determination whether their case against you is still “viable.” In other words, do they still have the witnesses and evidence to prove their case?

Often, your lawyer can negotiate in advance, not only the removal of the default, but also a resolution of the entire case, so that everything can still be completed on the same day.

Once in a while, although it is rare, it can be arranged for you to get a default removed without even making an appearance in court. Although this has been done, this does not happen too often though because it is equivalent to saying to the court, “I’m a fugitive. I’m still not coming back, but just please un-do my fugitive status.”

It is always better to have a default warrant removed. If someone voluntarily comes to court, it shows the judge that you are willing to take responsibility for your case and do the right thing, If, on the other hand, the police arrest you and bring you to court, no matter how much you try to say that you either were planning on coming to court on your own or you were not aware that you were ever due in court, the judge will likely not give your declarations much credibility.

Besides, spending every day of your life looking over your shoulder, wondering if you could be handcuffed and taken away at any moment either in front of your colleagues at work or your family, is a burden you might not want to live with. This is especially so if, with the help of an experienced criminal defense attorney, you can successfully remove the warrant and get an unfortunate episode from perhaps way back in the past behind you so that you can move on.

Do you have an outstanding arrest warrant because you failed to show up in court before the case was over? Contact us today for a free legal consult.

The number of people accused of shoplifting is massive. More than 10 million people have been caught shoplifting in the United States in the last 5 years. Obviously, that represents only the people who didn’t get away with it.  Businesses lose more than $45 billion a year due to shoplifting and employee theft.

Interestingly enough, a number of studies have shown that only about 5% of the people who shoplift do it because they are impoverished and are in desperate need of what they cannot afford.

I can vouch for that because, during the past several decades, I have represented accused shoplifters who span every group of society including college administrators, engineers, attorneys, corporate c.e.o.’s, and doctors.

Some people are caught shoplifting because they are merely absent-minded and, for example, may be elderly or on medication and just forget to pay as they walk out the door. But others do it for a variety of still-inexcusable psychological reasons such as it purportedly serving as a relief mechanism for depression or anxiety. Or they indefensibly want to reward themselves for some kind of loss whether it be a job or divorce. Or they have gambling personalities and unjustifiably seek the thrill of taking a risk.
There really is no profile of a typical shoplifter since, as stated, they span the strata of the public including every income level.  They are equally divided between male and female although about three quarters are adults and a quarter of shoplifters are minors. Sometimes it’s premeditated and sometimes it’s an impulsive spur of the moment thing.

Shoplifting is defined as the act of unlawfully taking merchandise from a store without paying with the intent to permanently keep it.

There are a number of methods that are defined as shoplifting. It is not just the act of walking out the door without paying or throwing it into a bag you’re carrying without paying or even going into a store dressing room with several items of clothing and then concealing one by wearing it under your outer lawyer of clothing before exiting.

Some shoplift by switching labels, altering labels, switching containers, or returning items with falsified receipts.

In Massachusetts, it is considered a felony if the stolen items are valued at over $1200.  An amount valued at under $1200 is considered a misdemeanor.

When one is stopped and accused of shoplifting, there are two things that can happen. (1) The police are called and the person is arrested, taken away in handcuffs to the police station and arraigned on charges in court on the next available court date. (2) Store security will handle things and perhaps the police will also be called, but the accused person will not be arrested, but rather told they will receive a summons in the mail to appear at a Clerk’s Hearing to determine if they should be charged.

The Clerk’s Hearing is a rather informal affair where those speaking must be under oath, but there are almost no formal rules of evidence to follow. It is often a back and forth conversation and questions can be asked of each person speaking. A person can bring an attorney with them and any witnesses who can help them with their case.

The entire point of a Clerk’s Hearing for shoplifting is not to determine guilt or innocence, but just to determine probable cause. Is there enough evidence, at the very least, to at least charge the accused person with shoplifting even if it is not quite clear whether there is enough evidence that will eventually prove his guilt at a trial? If it is determined that there is sufficient probable cause, then one is given a date to come back to court to be officially charged and arraigned in front of a judge.

If the case is dismissed at the Clerk’s Hearing, then the entire matter ends there. If it is dismissed at the Clerk’s Hearing, this is ideal because, in that case, it is even better than if one was charged and then the case was dismissed. There will not even be an official record that the person was ever even charged. The matter, for most legal purposes, just disappears as if it never existed.

Even if probable cause of shoplifting is found, the clerk conducting the hearing has some discretion to still not issue the criminal complaint even if the accused is clearly guilty. This is why, if given the option, a Clerk’s Hearing might be an ideal place to resolve a shoplifting matter. The clerk might possibly let the accused shoplifter off with a warning and a lecture particularly if the offense is relatively minor, the accused person is very remorseful and has no prior criminal record. The clerk may also find that probable cause exists, but continue the case for a few months or a year or so stating that, as long as the accused person stays out of any more trouble for that period of time, it will then be dismissed.

If, on the other hand, one is either arrested and then arraigned on the shoplifting charge or arraigned after a clerk’s hearing, there are still a number of steps that can be taken to prevent the accused person from getting a criminal record. Again, if negotiated successfully, it is not too late for a remorseful first offender to get the case dismissed even if the evidence of guilt is very strong. If needed, expert psychologists can be brought in to evaluate the accused person and explain to the court why the person could better benefit from counseling or treatment for whatever impulse control or behavioral problem they might have rather than just get a criminal record.

Otherwise, an accused shoplifter who wants to assert his or her innocence can always argue their case at a trial before a judge or jury.

Either way, how a shoplifting charge is resolved may be crucial. For example, if one is a non-citizen, having more than one such charge, even if it is a relatively minor misdemeanor, could trigger deportation, non-admissibility into the United States or result in preventing a person from ever becoming a citizen. Otherwise, even a minor criminal record for shoplifting can result in such things as not getting hired for jobs, being refused loans or mortgages, and being denied acceptance to a college or some other educational program.

An experienced criminal defense attorney is the best assurance that someone accused of shoplifting can emerge with the best result possible including the potential result of no criminal record.

Have you been accused of shoplifting in Massachusetts? Contact our Boston-based law firm for a consultation.

Removing Convictions to Avoid Immigration Problems

The number of deportations in the United States is up sharply since 2016, in fact it is soaring. This is why so many non-citizens who fear being seized for deportation or refused re-entry after taking a trip outside the United States and then attempting to return are, in record numbers, contacting immigration lawyers to either begin the process of trying to become American citizens or trying to make sure they can retain their legal status here.

Additionally, those with even seemingly minor criminal charges on their record are frequently told there is nothing that can be done for them in the immigration court as long their criminal record exists.

The cases can be heartbreaking where, for example, a non-citizen living here for decades who owns a home and business in the United States along with having an American spouse and American children may be ripped apart from that family and deported. In one recent case here in Massachusetts, a man who came to the United States when he was 6 months old and is now in his late 50s was deported despite the fact that his mother, who is in her 90s, and all his children, his many siblings, cousins, nieces, nephews, aunts and uncles are here. He cannot even speak the language of the country he is deported to, knows virtually no one there and cannot work there.

That is why the only alternative may be to hire an experienced criminal defense attorney in Boston, MA to try to un-do or vacate the previous guilty plea or admission in court.

This is not the way it was in the courts here in Massachusetts decades ago. Part of the reason may be that, before records were preserved online and computers spoke to each other, access to such records was greatly limited even between the governmental agencies and courts. Also, there were fewer deportation attempts and fewer consequences once an immigrant turned his life around and put his or her often decades-old criminal record behind.

The most common way for a non-citizen to try to withdraw a guilty plea in Massachusetts is through what is known as a motion for a new trial.  When such a motion is granted, the typical reason is that, at the time of the plea, some procedure during the actual plea was not properly followed such as one was not specifically informed of the Constitutional rights they were giving up when they either pled guilty or admitted to an offense. In order for a guilty plea to be valid, it must be made knowingly, intelligently and voluntary. A defendant should not later on learn that there are consequences to making the plea of which they were never informed of such possibility in advance.

Perhaps the non-citizen got bad advice from his or her counsel. It is not uncommon that someone will say that they pleaded guilty to a crime that they were not guilty of because they were perhaps a teenager who knew nothing about legal procedure and were told by their lawyer that, if they only pleaded guilty, the case would be over and they would not go to jail. The person who pleaded guilty to an offense then learned, perhaps years later, that by doing so, they eventually sealed their fate by ensuring that they would be deported or barred from becoming a citizen and there was virtually nothing they could do about it.

The reason it can be tough to ever withdraw a plea once made is that at the time of the plea, Massachusetts, similar to the courts in every other state, has one sign a piece of paper stating all the rights one is giving up such as the right to a trial and also gives a variety of warnings such as the immigration consequences of a guilty plea if not a citizen, The judge will then, on the record, verbally go over these waivers of rights and warnings with the defendant before a plea is accepted. The courts do this because they do not want someone to admit to or plead guilty to something, then come back later saying they didn’t know what they were doing when they pleaded guilty because they were, perhaps, nervous and nothing was explained to them. The court would then pull out the signed sheet and the recorded audio showing that the person repeatedly confirmed they knew they were giving up their right to trial, knowingly, willingly and voluntarily.

One of the reasons all courts without exception insist on these waivers of rights by the defendant before accepting a plea is because only approximately 6 percent of all criminal charges in American courts result in a trial. The majority plead guilty or admit to the offense unless the case is dismissed earlier. Courts do not want to unnecessarily have to constantly reopen and proceed all over again on cases that were already disposed of and closed.

Still, one shouldn’t be completely discouraged since a number of these requests to withdraw a plea are successfully granted.  Occasionally, it is discovered that the official court paperwork is missing or left blank or filled out erroneously and this might be a reason to withdraw the plea. Also, there are times when the judge or the defense lawyer, indeed, did not adequately explain to the defendant the rights he or she were giving up when they did the plea.

Additionally, sometimes a person can withdraw a plea when it turns out that they were not fluent in English yet had not been provided an interpreter to translate for them and help them completely understand what went on in court.

Recently, a great many motions to withdraw a guilty plea have been granted in cases where a defendant who is not a citizen was not adequately explained his or her immigration rights and now claim to be surprised that the plea they made in the past is now the cause of them being deported or facing other immigration consequences.

The reason many of these cases have been particularly successful is because of a decision that came down several years ago called Padilla v. Kentucky. That case said that it is no longer sufficient if the non-citizen doing the plea was only warned in a general way that a plea might have immigration consequences such as deportation, preventing one from ever becoming a citizen or would block one’s readmission into the United States if they travel outside it. The case said that attorneys and the court must advise a person that their guilty plea clearly and unambiguously “will” result in their deportation if the particular law they broke makes deportation or other very specific punishments inflexibly definite. This is a new law that can be applied retroactively. That means that, even if you had an excellent attorney who did everything right for your plea years ago under the law as it existed before the law changed under the Padilla case, you will still have an opportunity to get your guilty plea reversed and thrown out.

There are a number of reasons why a plea of guilty may be withdrawn which may help to avoid immigration consequences even many years later and a consultation with an experienced criminal defense attorney can advise you on your possibilities for achieving this. This could possibly clear the path for either preventing deportation, achieving legal status or becoming a citizen.

Are you a non-U.S. citizen with a criminal record in Massachusetts? Contact our criminal defense law firm today for a free legal consult.

Requests for a “restraining order” which in Massachusetts is often called a “209A order” are exceeding common and among the very most frequently made requests in the courts of Massachusetts.

In Massachusetts, a 209A order is a civil court order intended to provide protection from physical harm caused by force or threat of harm from a family or household member or even someone in a casual dating relationship. While the 209A proceeding is civil in nature, violations of 209A orders are crimes punishable by fines and/or incarceration. So, if someone has a restraining order granted against them, they still might not have a criminal record, but they could possibly be on the road to getting a criminal record if they are found to violate this civil order.

These orders are used frequently in divorce, custody, or other domestic disputes. They are a very necessary form of protection for abused victims, but there are times when they are used for spite or vengeance knowing that they don’t cost anything and are relatively easy to obtain as usually no particular evidence or proof is needed and they can be granted just on the mere claim or say-so of the complaining person. There have been times when the person seeking the restraining order might, in reality, actually be the abuser and now, ironically, wants a further weapon to use against the real victim.

Restraining orders are routinely granted against:

• a spouse or former spouse
• a present or former household member
• a relative by blood or a present or former relative by marriage
• the other parent of a minor child of the Plaintiff
• a person with whom the Plaintiff has or had a dating relationship no matter how casual

They can be obtained from any Court in Massachusetts. An emergency 209A Order can be obtained through any police department after court hours, on weekends and holidays. One does not need an attorney to file for a 209A Order, the person requesting the order (also known as the Plaintiff) will receive help from court personnel and Victim Witness Advocates (employees of the District Attorney’s Office whose sole job is to assist alleged victims with court procedures and filing criminal charges). There is no charge for filing for the order. Criminal charges are not necessary to obtain a 209A order, but Victim Witness Advocates often encourage the filing of criminal charges as well.

What a restraining order can compel one to do

• The person requesting the order may request, among other things, that the judge order that the Defendant:
• Stop or refrain from abuse of Plaintiff or a child in Plaintiff’s custody
• Have no contact with the Plaintiff or a child in the Plaintiff’s custody
• Vacate or move out of the house or apartment where the Plaintiff resides, even if the lease or title is in the Defendant’s name
• Stay away from the Plaintiff’s place of employment
• Pay support to the Plaintiff or a child in Plaintiff’s custody, if there is an obligation to support
• Pay Plaintiff’s medical costs, lost wages, cost of changing locks, attorney’s fees, and other expenses resulting from the alleged abuse
• Attend a Batterer’s Intervention Program

A person who applies for a 209A restraining order can get a temporary one granted by going before a judge and the accused may not even be in attendance in court to give argument on why it should not be granted. However, if the judge grants the temporary order, then the accused must be notified and given a right to a hearing within 10 days to challenge it at a court hearing

Once the 209A order is granted, it can be violated for a variety of reasons such as indirect contact by giving a message through a third party such as a mutual friend, sending an email or a text message or forwarding a piece of mail. Even if the accuser were to invite the accused over, the accused could not accept as long as the court order is in place. If one runs into the person who requested restraining order protection by accident at a restaurant or on the street, it is advisable that the accused immediately turn away and leave.

Have you been served with a restraining order in Massachusetts? Contact our criminal defense law firm today for a free legal consult.

Unlike many other states, Massachusetts law does not generally recognize expungement which is very different from sealing. Expungement would be preferable as it can essentially erase a criminal record, including police reports and arrest records as if it never existed.  On the other hand, simply getting a record sealed doesn’t wipe clean a record; it merely keeps it confidential on some level. A sealed record in Massachusetts may keep most employers from learning of its existence, but there are exceptions. Police and courts will likely be aware of the record.

Still, it is important to do so. It could be catastrophic to one’s future if, let’s say, because of one bit of bad behavior in one’s youth or many years ago, one is made unemployable forever or prevented from furthering one’s education.

Sealing is almost never automatic.

Three Main Ways to Seal a Criminal Record

1. Some convictions or admissions can be sealed after a waiting period.
2. Cases that were dismissed without probation or resulted in a not guilty finding may be eligible for sealing.
3. A recorded offense that is no longer a crime may be sealed.

It is a good idea to request a recent CORI record of the defendant prior to attempting to seal records so that the eligibility for sealing is clear. The following is an overview of the law.

Sealing after a waiting period

• Under the present law, the waiting period to seal felonies is now 10 years. (A few years back, it was 15.)
• Under the present law, the waiting period to seal misdemeanors is now lessened to 5 years. (A few years back, it was 10.)
• Under the law the clock begins to toll (a) for those incarcerated, on the day one is released from custody or (b) if there is no incarceration, on the date of disposition.
• Any subsequent conviction causes the 5 or 10-year waiting period to begin tolling all over again. In other words, it must be 5 or 10 years from the date of the latest conviction in order to be eligible to get the entire rest of the record sealed.

The procedure is to submit a single page petition form, available on the web, to the Office of the Commissioner of Probation.

Sealing after a non-conviction

• In the case where there is no conviction, one must go in front of a judge at the court directly but can do so immediately without any waiting period. This pertains to cases that resulted in an acquittal at trial, no probable cause, or some kind of a dismissal. Under the law, for the first time, this includes a case that was dismissed after a continuance without a finding.
• In this instance, records may be sealed only after the court has made a specific, on the record finding that sealing is necessary for “good cause.”
• The petitioner must file a specific petition form and a motion/affidavit form available from the court that must be posted publicly at the court. It is a good idea to also submit a memorandum.
• A judge may rule based solely on the paperwork, but more frequently the petitioner is afforded a hearing where reasons can be made directly to a judge
• Sealing a record of an offense that is no longer a crime

If an offense that is on the defendant’s record has been decriminalized, this may also be sealed by submitting a single page petition form, available on the web, to the Office of the Commissioner of Probation. An obvious example would be those with a record for possession of marijuana.

Exception to sealing statute

• A person convicted of a sex offense is eligible to have the record sealed after 15 years after the disposition including supervision or after any incarceration is completed
• (a) if they have no duty to register as a sex offender and;
• (b) if they were never, at any time, classified as Level 2 or 3 sex offender.
• There are some crimes that can almost never be sealed concerning crimes against public justice (such as perjury, false reports, witness intimidation, disrupting court proceedings, escape from custody, resisting arrest), and unethical conduct concerning public officials and employees (such as various forms of corruption) can never be sealed. Additionally, certain firearms offenses are never sealable.

Who has access to your records?

• Employers, landlords and professional licensing authorities especially concerning firearms will have access to criminal records if they have signed authorization from the person with the record
• Special classes of people are permitted access to Massachusetts reports including non-convictions. These include those who run long-term care facilities over their employees and volunteers; home and community care for the elderly and disabled; and victim/witnesses. In certain child custody and visitation or domestic abuse and restraining order matters where safety is at stake there is even a right to look at sealed cases if a court order is obtained.
• Almost any office involved in the best interests of children including the Department of Children and Families, Department of Social Services, school bus drivers, camps, early education programs, foster care, etc.
• Municipalities may conduct criminal record checks in order to license particular designated positions and to assist their housing authorities in screening
• Law enforcement agencies have an automatic and immediate right to all CORI records included sealed records.
• Any private individual may make a written request to view the CORI of any other person concerning (a) felony convictions punishable by 5 years of imprisonment until 2 years after release from custody; (b) a misdemeanor until a year after return from incarceration; (c) any conviction that includes incarceration until any parole or probation is completed.
• If an individual is eligible to have a conviction sealed—10 years after a felony or 5 years after a misdemeanor– but does not take that action to seal, most employers still no longer have access to such records after that time period.

Record questions barred on initial employment applications

• Under the so-called “ban the box” rule, an employer is blocked by law from asking a job applicant on an initial written employment application to check off whether they have any criminal record. The exception is when state or federal law prohibits a specific job from being filled by a convicted individual. For example, under federal law, banks are barred from hiring people convicted of certain offenses, so, therefore, may inquire about a criminal record right from the start.
• After the initial application, employers do, eventually, have the right to inquire about the applicant’s criminal history such as during the job interview
• The employer must give the applicant a copy of his or her criminal record before questioning that person about their criminal record. If a person is denied a position because of their criminal record, they must also be provided with that criminal record.
• Correcting errors in ones CORI and also learning who accessed it

There is a procedure for correcting errors and even mistaken identity on one’s criminal record that an experienced criminal defense attorney can help you with.

Dissemination of non-convictions

• Non-convictions such as charges that resulted in acquittals or dismissals are not subject to dissemination except in the few instances where there is delineated statutory access to the non-conviction.
• Pending cases may be viewed.
• Continuances without a finding are to be treated as dismissals once they are dismissed, but not during the period pending that dismissal. Until the date of dismissal, a continuance without a finding is subject to be viewed.
• Visibility of sealed records and non-convictions

Previously, notification was given that a sealed record existed even though the contents of that sealed record could not be viewed.  Currently, it will, usually, not be revealed whether a sealed file exists.

Previously, until a record was sealed, non-convictions (dismissal and not guilty verdicts) would be visible in a search. Under the current law, non-convictions will not be revealed in searches.
An experienced criminal defense attorney can help you seal your record. Contact me today for a free consultation to discuss the sealing of your criminal records in Massachusetts.

A charge of some form of sexual assault is one of the very most serious and explosive charges that can be leveled against a person. Not only can one face serious prison time, but it is the kind of charge that may carry a stigma for life as one is labeled a sex offender and will likely be listed on the Sex Offender Registry.

In Massachusetts, other than the more serious charges such as rape or assault with intent to rape, a sexual assault is generally charged as Indecent Assault and Battery.

It differs from simple assault and battery which is defined as an unwanted or “unconsented touching” even if it is without force or apparent injury. If one intentionally or recklessly punches, grabs, slaps, spits or throws some substance on another person, or has any kind of unwelcome physical contact that would be simple battery.

But the even more serious offense of indecent assault and battery is charged generally depending on the specific area of the body that is touched or the specific act that the accused person does. There are no specific touched areas of the body as defined by the law that qualify an assault and battery as an indecent assault and battery as the law merely defines decency as “fundamentally offensive to contemporary standards of decency.” So, such charges can be subject to interpretation. But most indecent assault and battery cases have to do with the touching of body parts generally recognized as private such as the genital area, the buttocks or breasts.

So, essentially, the prosecution will have to prove three elements beyond a reasonable doubt in order to convict someone of an indecent assault and battery:

1. That the alleged victim was touched intentionally.
2. That the touching was indecent.
3. That the touching was without consent and unwanted.

There can be even more serious charges depending on the alleged victim. One can be charged with indecent assault and battery on a child; indecent assault and battery on an elder (60 or over) or person with a disability; or indecent assault and battery on a person with an intellectual disability.

Potential truthful defenses to a charge of indecent assault and battery:

1. Accident. Since someone who commits an indecent assault and battery must do so purposely with intent, it is a defense if such a touching genuinely happens by accident. For example, this could occur in a jam-packed trolley where the brakes are unexpectedly jammed-on and the riders may be thrown forward and unintentionally touch.
2. Consent. There could be an incident where the alleged victim had consented to a sexual act and, only after the fact, regretted it or became angry with the sexual partner. Maybe after the act, the accused no longer wanted to see the alleged victim or perhaps the alleged victim learned that the supposed boyfriend had been unfaithful and therefore now had regrets. There are also issues concerning a victim’s inability to consent. If someone is intoxicated developmentally disabled, mentally incompetent, or under the legal age of consent, the fact that they may have, indeed, consented still might not be recognized as legal consent. The issue might be whether you knew or reasonably should have known that the other party was impaired in some way, although in the case of underage victims the fat that one didn’t know that they were underage is not a defense.
3. Motive. As noted above, is there some apparent reason that the alleged victim would falsely accuse someone of the crime of indecent assault and battery? Are they in a child custody battle or divorce and can use this false charge against the other party to gain advantage in the other proceedings? Do they want revenge from a failed relationship, an unfaithful partner, feel very guilty about the act or did their spouse or other partner find out about the sex so now the victim is falsely claiming that it was not their fault and done against their will? Does any motive exist for someone to falsely make these charges?
4. Tainted testimony. Particularly in the case of child testimony, there are a variety of ways that they can either be directly pressured to make false allegations or, particularly in some situations where the child is officially interviewed by professionals, interviewed in a way that is very suggestive. Children are impressionable and are vulnerable to biased questioning.
5. Challenged evidence. Particularly in the case of indecent assault and battery on a stranger, there is also, occasionally, tainted evidence that is inaccurate. There might be a very flawed identification procedure of the accused through a line-up or photo array. DNA can be challenged and may scientific or forensic tests on physical evidence can be contaminated or mishandled. This is where an experienced veteran criminal defense attorney can make a difference on your case. Evidence can be uncovered and investigated that will help the accused along with witnesses found and new previously unseen evidence uncovered.

The consequences of a conviction on any sex offense can potentially be severe even beyond a lengthy prison sentence. It can destroy ones reputation for life as the public including neighbors and family reviles those who are convicted of these among the most scorned charges. A number of attorneys even refuse to defend the accused against such toxic charges. This is why an experienced criminal defense attorney dedicated to justice and unafraid to aggressively defend against such false accusations is crucial.

Have you been charged with sexual assault in Massachusetts? Contact us today for a free legal consult.

Guarding Against Potential Damage to Your Future

When it comes to prosecuting college and high school students, there is a recent trend that has been developing in schools across the Commonwealth of Massachusetts. It used to be that when a young person got in trouble on school grounds, the school dealt with it as an internal private matter. The problem remained in-house, so to speak. Yes, there might be serious consequences for the student, but the school handled it on its own grounds through its own disciplinary policy. Whether it was vandalism, theft, bullying, drugs, or schoolyard fighting, a school might mete out punishments or work on the problem with the student.

But, despite all the penalties and corrective measures, there was an underlying principle that, even though a student might face severe consequences at school, their future must not be destroyed. This is because referring all school misbehavior to the criminal justice system and having students taken away in handcuffs to police stations and courts and even jail could result in permanent punishment. Punishment that goes on for the rest of their lives. This is because, once a student gets a criminal record, this could forever and all time result, in their

1. Not getting into the college of their choice;
2. If they already are in college, not getting into graduate school to further their education;
3. No longer being eligible for financial aid so having to drop out of college;
4. Again and again being refused employment and having their dreams and goals of what they wanted to accomplish in life disappear

Yes, students need to understand that actions have consequences and a price must be paid for bad behavior. They can’t expect to behave badly and always walk away scot-free. So have them face the music, endure the consequence, learn the lesson, and then move ahead. But for those in their teens or early twenties who commit a one-time act of poor judgment or foolishness or just not thinking . . . and have them pay for it into their fifties and sixties and seventies is extreme to the point of being bizarre. This is because it doesn’t just ruin the student’s future, but it ruins the future of America as we good law-abiding citizen can never take advantage of the talents of a student with a once-bright future who never became a doctor or a job-creating business person or government worker or useful scientist because of the one dumb action they took as, let’s say, a nineteen-year old college sophomore or did some underage drinking.

With the almost overwhelming multitude of colleges and places of higher education in Massachusetts that now routinely pass off their disciplinary infractions to the police, there is more of a need than ever for effective attorneys who understand the unique issues of young people. Young people often act foolishly on impulse in a way that they will not once they mature. Scientific studies have shown that the brains of young people are different than adults, that they will change and therefore should not be permanently written-off before they have even reached maturity.

An effective attorney experienced in representing students will use a variety of methods to do everything possible to prevent them from getting a criminal record that could extinguish their once-bright futures before they ever get a chance to launch them. There are ways to creatively assist a student who is charged with a crime from getting a criminal record through diversion programs and alternatives to a criminal record. Such alternatives could consist of participating in programs, getting counseling, doing community service or an assortment of other methods. There was a group of college students who threw a rowdy noisy destructive party with illegal kegs of beer who avoided criminal records by performing a great deal of community service; a college student charged with reckless driving and some other motor vehicle offenses who got his case dismissed after having to take a brains-at-risk course that links the choices made behind the wheel to the devastating effect of traumatic brain injuries they might cause others or suffer themselves; and the student shoplifter who had the case dismissed by attending a special shoplifting lecture.

An effective attorney who understands and then zealously champions young people is a must for students who, despite the fact that they may have had a one-time incident of using poor judgment, can still turn their lives around rather than having their still bright futures extinguished with a permanent criminal record.

 Are you a student in Massachusetts or parent of a student facing criminal charges? Contact us today for a free legal consultation.

There are three ways that a criminal case can begin in a Massachusetts District Court against an accused person.

1. The police can go out and arrest a person in which case the arrestee is handcuffed, taken into custody, transported to the police station and then are officially brought before the court for an arraignment usually within 24 hours. They are either taken by the police to the courthouse or, in case they are bailed out quickly, they are released and can go to the courthouse under their own power.
2. The second way a criminal case to get started is for the court to send out a summons in the mail notifying the person that they have been charged with a crime and informing them of the date they need to show up in court for the arraignment. This is certainly an easier and less traumatic way than being arrested. An arraignment is, essentially, an initial check-in with the court where one is officially informed of the charge, enters a plea of not guilty, can apply for a court-appointed attorney if one is indigent, and then is given a date to come back. If the prosecution requests a defendant be held on bail, this can be argued at a hearing before the judge.
3. The third way a criminal case can begin in a Massachusetts District Court is through a summons, not to an arraignment in front of a judge, but to a Clerk’s Hearing, also known as a Show Cause Hearing or a Probable Cause Hearing. This means the person has not actually already been charged, but rather, it will be determined whether that person will be charged. A Clerk’s Hearing is conducted usually for the more minor misdemeanor offenses such as shoplifting, motor vehicle offenses or disputes between people after someone has filled out an application for a criminal complaint. A Clerk’s Hearing is held at the courthouse, but in front of a clerk either in the clerk’s office or in a small courtroom.

What to Expect at a Clerk’s Hearing

The Clerk’s Hearing is a rather informal affair where those speaking must be under oath, but there are almost no formal rules of evidence to follow. It is often a back and forth conversation and questions can be asked of each person speaking. A person can bring an attorney with them and any witnesses who can help them with their case.

The entire point of a Clerk’s Hearing is not to determine guilt or innocence, but just to determine probable cause. Is there enough evidence, at the very least, to at least charge the accused person even if it is not quite clear whether there is enough evidence that will eventually prove his guilt at a trial? If it is determined that there is sufficient probable cause, then one is given a date to come back to court to be officially charged and arraigned in front of a judge.

If the case is dismissed at the Clerk’s Hearing, then the entire matter ends there. If it is dismissed at the Clerk’s Hearing, this is ideal because, in that case, it is not like one was charged and then the case was dismissed. There will not even be an official record that the person was ever even charged. The matter, for most legal purposes, just disappears as if it never existed.

Even if probable cause is found, the clerk conducting the hearing has some discretion to still not issue the criminal complaint. This is why a Clerk’s Hearing might be an ideal place to resolve a matter by, essentially, mediating the dispute if there are opposing parties. The clerk might also let the accused person off with a warning and a lecture particularly if the offense is relatively minor such as a remorseful young person committing a first time shoplifting. The clerk may also find that probable cause exists, but continue the case for a few months or a year or so stating that, as long as the accused person stays out of any more trouble for that period of time, they will then dismiss it. But, in the meanwhile, the case is hanging over one’s head totally dependent on whether the person stays out of trouble for that time. In situations such as this, the court clerk can serve an important function by resolving very minor problems and not clogging up the regular courtroom schedule with small matters such as a dispute between neighbors where an apology might take care of everything.

This is why, if a person is summoned into a Clerk’s hearing where it is to be determined whether probable cause of a crime exists, all is not lost as it is a good place to try to resolve and settle the matter. Although no accused person can ever be forced to hire an attorney in any criminal matter whatsoever and people have even represented themselves when charged with murder, ones chances are greatly enhanced if they are represented by counsel especially at a Clerk’s Hearing where, if the hearing is handled correctly, an accused person may truly get an opportunity to make the case go away with no record of it when they achieve a dismissal.

Do you have a clerk’s hearing coming up? Have other questions about you can do to prepare yourself? Call (617) 742-9462 to contact us about a free consultation.

Almost everyone who has ever watched television or gone to the movies thinks they know the rights the police would read them if they ever found themselves in the unfortunate situation of being stopped by the police and questioned.

Even many children can recite the words from memory: “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.”

Nevertheless, there is a lot of confusion as to how those rights, known as Miranda warnings, are applied.

Frequently, people who have been arrested will ask their attorney if their case can be dropped because the police did not inform them of their rights. However, in many cases, it turns out that the police arrested them, but never questioned them. So, if you are not questioned, the police do not need to read you your rights, even though it might be good practice if the police did so every time just to be sure.

Also, the police do not need to read you your rights unless they question you while you are in custody. If the police merely question you out in the street while not in custody even if they suspect you, they do not have to tell you your Miranda warnings.

Now, in that situation, this is where it can get tricky and a lawyer might be of great help to you in getting your statements thrown out in court if you wound up saying anything that might have incriminated you. This is because there are situations where one is not technically placed under arrest or put in handcuffs and yet good legal counsel can argue that you were, in effect, in custody, because circumstances may have implied that you were not free to leave. You were somehow led to believe that you couldn’t just cut the conversation off with the police officer off and simply walk away.

Whether to Speak to the Police Even If Read Your Rights

It is generally advised for someone suspected of criminal activity not to speak to the police at all ever. Even if a person is truly innocent of any crime, they might say something in a way that it can be misinterpreted and used against them. Or they may just be nervous and say something by mistake that mistakenly makes them appear guilty of something. Also, some people think they are savvy and smart enough to speak to the police and yet don’t understand that they may inadvertently be admitting to criminal activity.

For example, there have been times that someone suspected of an illegal drug crime has said to the police that they have never sold drugs, just given some drugs to a friend for free if they had extra. They didn’t realize that the crime is not whether one made money or not from drugs; the crime is just that one distributed drugs whether paid or not. So, that person, thinking they were outsmarting a police officer by explaining that they were not selling drugs actually wound up giving a complete confession to the crime of distribution of drugs.

In another common example, someone stopped and suspected of drunk driving may tell the police officer that they are not drunk and only had two drinks. They don’t realize that this was helpful to the police and prosecutor at a later trial because they have already confessed to drinking while driving, now it is just a question of whether they were also impaired by that drinking. Even though they may truly have had something to drink earlier in the evening, but are truly not under the influence, they, nevertheless, are worse off than someone who simply kept their mouth shut and never conceded drinking any alcohol whatsoever.

When you invoke your constitutional right to remain silent, you can’t be vague, unclear or ambiguous. If you say something like, “Gee, I’m not so sure I should talk to you guys” or “I think maybe I might need a lawyer,” that may not be specific enough. Better to clearly state something like you definitely want to exercise your right to remain silent and you, without any doubt, want to speak to an attorney first.

At that moment, all questioning must stop. Otherwise, if police do not stop questioning you immediately, they will have violated your Miranda rights. Police can ask you routine questions such as your name, address, date of birth, or social security number without violating your rights, but you cannot be forced to answer even that.

There are times when, after someone invokes their right to remain silent, the police will try to get them to reconsider. They will say such things as “Well, I guess this means you must be guilty. If you haven’t done anything wrong and are innocent, you would probably be talking to us.” Or they might say, ” Oh come on, why spend money on a lawyer? You don’t need one. We just want to ask a few routine questions and then you can probably be on your way” Or they might say, “Obviously, you must have something to hide. Otherwise you wouldn’t need to get a lawyer.” That is not true. As I said above, even an innocent person can get themselves in trouble by speaking to the police if they nervously phrase something the wrong way or say things in a way that could be misinterpreted. Do not allow yourself to be intimidated into giving up your right to remain silent or to consult an attorney.

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There are a number of reasons why a person who is on probation might want to apply for early termination of probation. They may want to move out of state and not go through the difficult and frequently fruitless task of attempting to get another state to accept a transfer. They may have to travel out of state frequently for work or to attend to a chronically sick family member at the last minute and not always have the time to get permission first. If, as a condition of probation, they wear a GPS monitor, it may greatly limit the hours and places they can go within the state while frequently malfunctioning and giving off false alarms at their workplace. There is also the expense of the monthly probation fee and the taking time off of work to report in person to ones probation officer. Or it may just be that, after years of being on probation where they have done everything right to both comply with the terms of their probation and to resume a good law-abiding life of contribution to the community, they may have earned it.

Until fairly recently, it used to be rare for a probationer to get their period of probation terminated early. Judges would frequently deny the request stating that the fact that someone was already doing so well for the time they had been on probation was expected of them and, besides, why end probation early if it is working out so successfully. They might also say that the judge, who originally handed out the sentence and was, therefore, the one possibly most familiar with the case, knew how long they wanted the defendant to be on probation and would have, indeed, sentenced the person to a shorter period of probation if they had seen fit.

However, recently, in the intended interest of public safety, there has been a trend in the opposite direction in favor of presumably giving probationers an incentive to do well and rewarding them for establishing a track record of resuming a good law-abiding life. It is the same idea as when a prisoner gets paroled early.

At this present time in the courts of Massachusetts, early termination of probation is actually being encouraged as a routine action when merited. In fact, as a result of the formation of a number of working groups assembled by Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, a report was issued entitled Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing in March of 2016. It suggested, as a Best Practice, that:

“At the time of sentencing, a judge should inform the defendant/probationer that, after a period of compliance, the court may look favorably upon a request for early termination of probation or lifting of certain conditions as an incentive to successful performance.”

The rationale as expressed in the report is that:

“Studies have also shown that probationers are often more likely to complete their probation successfully when their positive performance is acknowledged or rewarded. Positive reinforcement and the use of incentives can motivate a probationer to succeed, as opposed to probation practices that recognize (and sanction) only failure . . . As is true in life generally, so too in the context of probation: the prospect of a reward for success is sometimes more powerful than the threat of punishment for failure.”

Requirements for Early Termination of Probation

1. In the time they have been on probation, they should have successfully complied with all conditions, had no violations of probation, and be up to date on payments. In other words, they should have had a good run as a model probationer.
2. In order to show how successfully they have complied with probation, they should probably not apply for early termination until they have completed, at the very least, half the period of probation. So, if one has, for example, been sentenced to five years of probation, they should, practically speaking, probably not apply for early termination until, at the very soonest, they have already served two and one half years of it.

Also, it would be ideal to get ones probation officer to agree to the request. However, it is generally the policy of most probation offices to either routinely oppose such a request as a standard policy or to stay neutral and leave it up to the judge. If they oppose it, hopefully, a judge will understand that the probation officer is doing so as a matter of their office policy and not because the probationer did not earn it. Otherwise, it is actually still somewhat helpful for a probation officer to tell the judge that he or she takes no position on it either way but that they will affirm that the probationer has been in full compliance with all the rules and conditions of their probation.

The motion for early termination of probation itself should have as much detail as possible explaining not only did the probationer comply successfully with all terms of probation but also the other positive things going on in their life to show they are currently living a life of stability and responsibility. These might include their employment, family ties and whatever contributions they have made to the community, church or non-profit organizations or private acts of kindnesses to those around them even if it means so much as shoveling the snow for free for an elderly neighbor.

If the probationer has engaged in counseling, include a letter from the therapist noting their patient’s active engagement in it with some level of assurance that the indications are they are likely to continue living a responsible law-abiding life. Letters from family and friends can also be included.

Also, key is to give a reason why it would be better and in the interest of justice for the person to now get off of probation.

If the judge denies the request for early termination of probation, all hope is not lost. Some judges have told the applicant that they would like to see them show just a bit of a longer track record on probation before they will feel comfortable about terminating it. Someone who gets turned down for early termination of, let’s say, a five-year probation after completing half of it, could ask the judge if they might reconsider their decision if they come back in another year after they have completed three and a half years.

This kind of positive reinforcement and incentive that goes along with the hope of the possibility of an early termination of probation if the probationer’s conduct has been exemplary can help the probationer to succeed in resuming a good law-abiding life and, therefore, is in the interest of public safety.

Under the law, one is able to withdraw a plea of guilty on a criminal case “if it appears that justice may not have been done.”

However, these requests to withdraw a guilty plea are not granted in a number of situations, so one should first identify the kinds of instances where they are successfully granted. When they are granted, the typical reason is that, at the time of the plea, some procedure during the actual plea was not properly followed such as one was not specifically informed of the rights they were giving up if they either pled guilty or admitted to an offense.

The reason this can be tough is that at the time of the plea, Massachusetts, similar to the courts in every other state, has one sign a piece of paper stating all the rights one is giving up such as the right to a trial and also gives a variety of warnings such as the immigration consequences of a guilty plea if not a citizen, The judge will then, on the record, verbally go over these waivers of rights and warnings with the defendant before a plea is accepted. The courts do this because they do not want someone to admit to or plead guilty to something, then come back, let’s say, a week or two later, saying they didn’t know what they were doing when they pleaded guilty because they were, perhaps, nervous and nothing was explained to them. The court would then pull out the signed sheet and the recorded audio showing that the person repeatedly confirmed they knew they were giving up their right to trial, knowingly, willingly and voluntarily.

One of the reasons all courts without exception insist on these waivers of rights by the defendant before accepting a plea is because only approximately 6 percent of all criminal charges in American courts result in a trial. The majority plead guilty or admit to the offense unless the case is dismissed earlier. Courts do not want to unnecessarily have to constantly reopen and proceed all over again on cases that were already disposed of and closed.

So, it is not good enough for someone with a previous conviction to come forward and ask the judge to “un-do” the guilty plea because they’ve stayed out of trouble for years following their conviction or it is hurting their employment or school opportunities or just that they weren’t using good judgment at the time of the plea and, on second thought, would have preferred a trial. Some of those kinds of arguments might, on the other hand, be good reasons for requesting that ones record be sealed. But these reasons are not generally accepted as a sufficient reason to make the guilty conviction essentially disappear so that it never happened through a withdrawn plea.

Still, one shouldn’t be completely discouraged since a number of these requests to withdraw a plea – made through what is referred to as a Motion for a New Trial – are successfully granted. Occasionally, it is discovered that the official court paperwork is missing or left blank or filled out erroneously and this might be a reason to withdraw the plea. Also, there are times when the judge or the defense lawyer, indeed, did not adequately explain to the defendant the rights he or she were giving up when they did the plea.

Recently, a great many motions to withdraw a guilty plea have been granted in cases where a defendant who is not a citizen was not adequately explained his or her immigration rights and now claim to be surprised that the plea they made in the past is now the cause of them being deported or facing other immigration consequences.

The reason many of these cases have been particularly successful is due to a decision that came down several years ago called Padilla v. Kentucky. That case said that it is no longer sufficient if the non-citizen doing the plea was only warned in a general way that a plea might have immigration consequences such as deportation, preventing one from ever becoming a citizen or would block one’s readmission into the United States if they travel outside it. The case said that attorneys and the court must advise a person that their guilty plea clearly and unambiguously “will” result in their deportation if the particular law they broke makes deportation or other very specific punishments inflexibly definite. This is a new law that can be applied retroactively. That means that, even if you had an excellent attorney who did everything right for your plea years ago under the law as it existed before the law changed under the Padilla case, you will still have an opportunity to get your guilty plea reversed and thrown out.

There are a number of other reasons why a guilty plea can be withdrawn and an experienced attorney can advise you on your chances of success. Contact me today for a free consultation.

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