Massachusetts Criminal Defense Lawyer Blog

Articles Posted in Felony offenses

Baby Lisa Case Could Lead to Kidnapping, Murder Charges

October 25, 2011 | by Michael DelSignore

The Baby Lisa case has garnered national headlines as local authorities and the FBI search for the child missing in Kansas City since Oct. 4.

According to The Kansas City Star, the 11-month-old girl was reported missing from her crib that day.

CNN reports that the FBI recently obtained a search warrant for the house and began searching recently and the order bans the family of the girl from returning home.

A missing child is a a nightmare for any parent. But if recent media reports have taught us anything, it’s that authorities will look to the parents as soon as they look at outside suspects.

And after about two weeks, it appears that’s exactly what’s happened here. Obtaining a search warrant and banning the family from going into their home seems to indicate authorities are now turning their attention inward.

Charges of kidnapping in Massachusetts are among the most serious a person can face. Massachusetts criminal defense lawyers know the penalties are steep and will prepare a strong defense for a person accused of such a crime. That means challenging all evidence and seeking independent witnesses to verify the facts.

In Massachusetts, kidnapping charges can be penalized in a variety of ways, depending on the facts of the case. For instance, if the kidnapping was committed to extort money, a person convicted could be sent to prison for life. In other circumstances, the sentence could range from 2 to 10 years.

The Kansas City Star reports that police have revealed little about what they know to the public. The newspaper reports that the majority of the information coming out about the case has come from the child’s parents.

The girl’s mother has told the media that she failed a polygraph test, was drunk and may have “blacked out” the night the girl went missing and now the police are accusing her of being involved.

The parents and police differ about their cooperation level. The parents say they are helping, while the police have said they are not. It’s been more than a week since the parents and police sat down and spoke and the parents aren’t making the baby’s older siblings, who were home the night of the disappearance, available to detectives.

The case started Oct. 4 around 4 a.m. when the girl’s father got home from his overnight job and reported the girl missing. The mother said she had last seen the girl around 10:30 p.m. the night before.

A neighbor reported a man seen with a baby around 2 a.m. Within two days, the police had questioned the mother and said they were no longer cooperating. The family then scaled back interviews and appearances on national television.

CNN reports that a child resembling Baby Lisa was reported about 100 miles away, but that turned out to be a false lead. The family believes it’s possible someone could have entered the home without the family knowing since their bedroom is on the opposite side of the house and the baby’s room has a loud fan blowing.

But it appears police are spending more and more time focusing on the mother, since she was home the night it happened. She admits to being drunk, but denies involvement in her daughter’s disappearance She has admitted she fears police will arrest her.
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DNA Database Another Reason for Experienced Criminal Defense Attorney in Massachusetts

September 15, 2011 | by Michael DelSignore

A Provincetown man is suing amid claims his privacy rights were violated after authorities allegedly kept records in connection with a voluntary DNA sample he submitted during an investigation into the killing of a fashion writer, the Boston Globe reports.

Massachusetts criminal defense attorneys are seeing an increasing number of criminal charges being brought in cold cases after hits from the DNA database link defendants to the crime. In addition to the state system, samples are submitted to the Combined DNA Index System (CODIS), which compiles and compares samples from defendants and unsolved crimes nationwide.

While seldom discussed as a reason to fight a conviction on felony charges in Massachusetts, keeping your DNA out of such databases can be critical to protecting your privacy rights.

In this case, Keith Amato sued after trying for two years to get his sample back from law enforcement. He claims the submission was voluntary and that authorities told him he would get the sample back if his DNA did not match a sample collected at the scene of the killing of Christa Worthington. While the sample was returned in October 2008, he claims the state crime lab has held his DNA profile, along with records and samples provided by other men.

Last week, the Massachusetts Appeals Court ruled his lawsuit can go forward; it had been tossed out by a lower court.

“The allegations that the defendants have retained Amato’s highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato’s privacy,” the court ruled.

Worthington’s trash collector, Christopher McCowen, was convicted in 2006 of her rape and murder and is serving life in prison. Worthington lived in Cape Cod at the time of the crime. Investigators solicited samples from numerous men who knew the victim. Amato was a relative by marriage of the father of Worthington’s 2 1/2 year old daughter.

The lawsuit claims as many as 200 men gave samples and that Amato was assured any samples that did not match the crime scene would not become part of any state or federal database. McCowen also provided a sample before being arrested in 2005.

Amato was unsuccessful in retrieving his sample, despite requesting its return on numerous occasions from the Cape & Islands District Attorney’s Office. The office said state lab protocol requires retaining evidence in murder cases for 50 years.

Such DNA dragnets are an example of law enforcement operating in a gray area. The “voluntary” collection of samples comes perilously close to unreasonable search and seizure and must be aggressively challenged by a Cape Cod criminal defense lawyer.

Unfortunately, such tactics have been around since the advent of DNA. The first use of DNA in a criminal case occurred in England after the rape and murder of two girls. “Mass screening” of male subjects was used to solve the crime. The case is recounted in “The Blooding: The True Story of the Narborough Village Murder,” by Joseph Wambaugh.

Wambaugh is a former detective with the Los Angeles Police Department.
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Eyewitness Testimony Requires Aggressive Challenge of Massachusetts Criminal Attorney

August 31, 2011 | by Michael DelSignore

Defendants, at least in New Jersey, will be less likely to be convicted based on faulty eye-witness testimony, thanks to a sweeping new set of rules handed down by the New Jersey Supreme Court. The decision is New Jersey v. Henderson and can be found by clicking this link. The decision of the New Jersey Supreme Court is a landmark decision that hopefully will be followed by other state and federal courts. The success in this case of the defendant in this case was based on large part on the work of the Innocence Project in bringing the problems with eye witness identification to the attention of the Court.

Massachusetts criminal defense lawyers understand eyewitness testimony can sometimes be difficult to overcome at trial. Often believed by juries, it remains among the most unreliable forms of testimony the state can produce in securing a conviction. Trial defense in Massachusetts requires aggressively challenging the recollections and other evidence presented by witnesses to a crime.

The New Jersey Supreme Court ruled a judge must hold a special hearing on the issues whenever the defense presents evidence that a witness may have been influenced by police or by other means. Other factors could include lighting, the passage of time between the crime and recollection, or whether the victim was under stress at the time of the identification.

Imagine a crime. Whether robbery, burglary or assault. The recollection of eyewitnesses is just one piece of a prosecution’s case. Having a defense attorney in Massachusetts who understands the issues and knows what it takes to challenge the evidence can have a drastic impact on a defendant’s case.

The court ruled when such disputed evidence is admitted, the judge must give detailed instructions to jurors on factors that could result in misidentification. While the new rules are only applicable in New Jersey, court watchers say the ruling could begin having an impact nationwide.

The New Jersey high court has long been at the forefront of criminal law. The 134-page unanimous decision was penned by the court’s chief justice, Stuart J. Rabner. It called for a revision of the 34-year-old U.S. Supreme Court decision that outlined the test of reliability for eyewitnesses.

A special master assigned to study the issue estimated there have been more than 2,000 studies about the reliability of eyewitness testimony since the Supreme Court decision in 1977.

“Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country,” Rabner wrote.”

Factors a judge should consider in establishing the credibility of an eyewitness include:

-Whether a weapon was visible during a crime.

-The amount of observation time.

-Distance between witness and suspect.

-Witness alcohol or drug use.

-Length of time between incident and identification.

-Whether the eyewitness and suspect are of different races.
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Swansea Man Faces Retrial in 2003 Beating Death of 4-Year-Old

August 16, 2011 | by Michael DelSignore

A Swansea man once convicted of killing his girlfriend’s 4-year-old son will get a new trial after his most recent retrial was interrupted by the alleged victim’s father, The Herald News reports.

The situation happened recently at Fall River District Court, where Eric Durand of Swansea faces a charge of first-degree murder. He was convicted in 2006, but the Massachusetts Supreme Judicial Court overturned the conviction on appeal. During jury selection recently, the boy’s father disrupted the process, leading to his arrest. But the trial will go on.

Murder charges in Boston and throughout Massachusetts are the most serious a person can face in the Commonwealth. According to the laws of Massachusetts, Chapter 265, Section 1, murder is carried out with “deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life.”

While Massachusetts abolished the death penalty in 1984, murder is punishable by life in prison without parole.

Whether murder, or other serious felony charge, this case shows the importance of the appeals process and of the guarantee that every defendant has the right to a fair trial. That’s why hiring an experienced Fall River Criminal Defense Attorney is essential. In the event a conviction occurs, an experienced defense lawyer will understand the importance of preserving various issues for appeal. In some cases, a defendant can’t get a fair trial — and the impartiality of the appeals court will be critical in seeking justice.

According to the news article, Durand was convicted of killing Brendon Camara by crushing his stomach to the point that his small intestine detached from his stomach and his pancreas split. Durand was allegedly babysitting the boy and his twin brother at the time.

After being convicted in 2006, the high court overturned it and granted him a new trial after ruling a doctor shouldn’t have been allowed to be an expert witness because he hadn’t performed an autopsy on the child. Expert witnesses are deemed so by a judge at trial after hearing proof of such qualifications presented by an attorney — in this case the prosecution. The importance of having an expert witness is they are able to give opinions and tend to have more weight with jurors.

So, Durand is scheduled to go to trial a second time, despite interruption by the boy’s father, who was recently arrested on a charge of criminal contempt for entering the courtroom during jury selection despite a judge ordering him to leave, the newspaper reports. He was being held on $2,000 bail and if he makes bail he won’t be able to attend the trial. He will also have to wear a GPS tracking device and won’t have to leave his Fall River home. Camara was part of a group protesting outside the courthouse, according to the report.

Cases involving allegations of child abuse are among the most high-profile and high-emotion cases that occur in our justice system. And because of the attention they get in the news media, an experienced lawyer must be hired in order to fend off the allegations in court as well as in the public eye. While the defendant is only tried in the courtroom, media attention can influence prospective jurors and the opinions of the general public.
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Forensic science plays role in few Massachusetts criminal cases

November 16, 2010 | by Michael DelSignore

The Boston Globe recently published an excellent report on the impact television forensic shows, such as CSI, have in the real-world courtroom.

In reality, a Massachusetts criminal defense lawyer can frequently challenge the available evidence in many crimes — it is the defendant’s statements that are much more likely to be a problem. Television is Hollywood and real life isn’t. The vast majority of cases do not have DNA evidence, which is expensive and time consuming. Other “forensics” seen on television might be available to the CIA (and we only say might), but is not going to be used by Massachusetts law enforcement anytime soon. For instance, detectives are not going to determine what type of motorcycle a defendant was using during a robbery by matching the sound of its exhaust caught on surveillance video — which was an actual episode of a popular television forensics show.

In fact, the popularity of such shows can cause problems in a trial — particularly when jurors think such evidence should be available if prosecutors or the defense just used a little more effort. A 2006 study of 1,000 Michigan jurors found that nearly half expected to see some form of scientific evidence in every criminal case. Nearly 75 percent expected to see it in murder trials. Of even greater concern, is that people trusted such evidence almost blindly; a study of 1,201 California jurors found scientific evidence such as DNA or fingerprints, was considered far more reliable than testimony from police officers, witnesses or the victims themselves.

So it goes without saying that it is critical to select a Massachusetts defense attorney who has the knowledge and experience to challenge all manner of forensic evidence while convincing a jury of its relative value.

Meanwhile, a new study of 400 murder cases found that the presence of forensic evidence had very little impact on whether an arrest was made, charges were filed, or a conviction was handed down in court. Just 13.5 percent of murder cases had physical evidence linking the murderer to the crime scene or the victim. If you are a defendant without an experienced and aggressive defense lawyer, that is a truly frightening statistic. In other words, the state wants you to believe that more than 85 percent of murder defendants are guilty because prosecutors say so.

According to the research, biological evidence was found 38 percent of the time, fingerprints 28 percent of the time, and DNA in just 4.5 percent of homicides. Research yet to be released shows that forensic evidence also plays a minimal role in other types of crimes, including robbery and burglary. Forensic evidence is collected in less than a third of such cases and is submitted to the lab just a small fraction of the time.

Meanwhile, the National Academy of Sciences is questioning whether certain methods used in forensics are even scientific and is decrying the lack of standards and certification. Problems are commonplace: In 2008, Detroit shut its crime lab after an audit found a 10 percent error in ballistics testing; New York State Police have come under fire for overlooking evidence that a crime lab was fabricating data; and a San Francisco crime lab was closed after it was revealed that an analyst was allegedly skimming illegal drugs for personnel use.

Massachusetts hasn’t escaped problems. In 2007, the Executive Office of Public Safety found a backlog of more than 16,000 cases awaiting DNA testing. In fact, DNA backlog is a nationwide problem that has cost $330 million since 2004 and is one of the primary reasons an individual case is unlikely to be tested.
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Miranda warning and right to remain silent without presence of a Massachusetts criminal defense lawyer

August 14, 2010 | by Michael DelSignore

The U.S. Supreme Court continues to chip away at the Miranda warning, dialing back the landmark protections afforded criminal defendants since the 1960s, the Associated Press reported.

What is important for a defendant to remember is simply this: Never speak to authorities as the suspect in a criminal investigation without the physical presence of a Massachusetts criminal defense lawyer. There is absolutely nothing to be gained form it. You are not going to talk your way out of charges. And, all too frequently, the statements you make are going to be some of the strongest evidence used against you in court.

If you keep that in mind, changes to Miranda won’t impact your rights as the high court continues to water down what has become a defendant’s most basic right over the last four decades.

“It’s death by a thousand cuts,” said Jeffrey Fisher, co-chair of the National Association of Criminal Defense Lawyers. “For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

The original ruling was issued in 1966 and emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. Perhaps the court’s most famous ruling, it requires suspects to be told that they have the right to remain silent, that they have the right to an attorney, and that an attorney will be provided if they cannot afford one.

A trio of decisions issued this year have pruned back some of those rights. The court approved a warning used in parts of Florida that did not notify defendants of their right to an attorney during police questioning. In a separate ruling, the court found that Miranda rights are good for a period of 14 days after a defendant is released from custody. Previously, an assertion of Miranda rights was good forever. Now police can attempt to re-question a suspect after a period of 14 days, even if they asserted their right to remain silent or to have an attorney present. This has increasingly become an issue in cold-case homicide investigations, where law enforcement felt they were hampered by a suspect who asserted his rights decades ago.

Lastly, the court has ruled that a suspect must overtly respond in asserting the “right to remain silent,” just as they must tell police that they wish to have a lawyer present.

At least Justia Sonia Sotomayor found the irony.

“Criminal suspects must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”
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