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Last month Boston Firefighter Kenneth Veiga, a 24 year veteran, was facing potential charges for threats he made against his department following a requirement that he see a predetermined physician in order to return from his paid leave.

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

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

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

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

Thus, comments made merely in jest or as an expression of frustration, may not rise to the standard required under criminal law. Additionally, it is important to keep in mind that in its case against a defendant, the government must prove each element beyond a reasonable doubt. Therefore, based on the limited information and evidence reported, it isn’t that surprising that the case was not pursued.
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Last May, the Massachusetts Legislature passed an important piece of legislation regarding veterans’ rights, which has important implications for veterans facing criminal charges.

The complete formal title, “An Act Relative to Veterans’Access, Livelihood, Opportunity and Resources,” and is also commonly referred to as the Valor Act. Among the various provisions and benefits of the act, is a section providing for the assessment and pretrial diversion for qualifying veterans, active service members, and other defendants in criminal cases with qualifying military history.

According to the provisions of the law, and recent direction within the District Court, judges have discretion to recommend a pretrial diversion program for any individual who meets all of the following criteria. The person must be:

  • A veteran, active service member or person with other military history (meeting certain requirements);
  • Charged with a state crime, which carries potential prison time;
  • Since turning 18, has not previously been convicted of any state or federal crimes, with some exceptions for traffic violations, and has not previously served jail time;
  • Does not have outstanding warrants, continuances, appeals or criminal cases pending before any state or federal courts;

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It was recently reported that a new anti-crime task force will be established in western Massachusetts. Government officials hope that the group will lead to more efficient coordination of investigation into major crimes.

David Sullivan, the Northwestern District Attorney, discussed his hopes for the task force, which include enhancing the investigative capabilities of the Narcotics Unit of the Massachusetts State Police, in particular. The task force will be comprised of a coregroup of detectives from throughout the region, who will be able to better organize their efforts in order to obtain search warrants, audio and video surveillance, and otherwise coordinate undercover investigations and related activities.

The police departments for Greenfield, Montague, Amherst, Athol and Northampton and sheriff’s departments of Franklin and Hampshire will each contribute an officer or detective to the task force, for up to 25 hours each week. Additionally, Sullivan’s office recently received a grant for additional funding for the new task force. I applaud the state’s efforts to better coordinate investigations. Better organization will hopefully lead to a more efficient use of state resources.
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According to data recently released by Massachusetts and the FBI, gun crimes of all kinds are up, these include:

  • Murders committed with firearms
  • Aggravated assaults involving guns
  • Robberies involving guns; and
  • Gunshot injuries

Gun owner advocacy groups point to this data as evidence of the lack of efficacy of gun control laws.

Proponents of such controls argue that increasing violent gun crimes are the result of individuals being able to secure weapons more easily in neighboring states. UnlikeMassachusetts, New Hampshire and Maine do not require a permit or license to buy a gun. However, weapons bought at stores that are federally licensed, whatever the state, do require a background check. Additionally, there is increased concern regarding so called “straw man” transactions, whereby an individual lawfully obtains a weapon, only to turn around and sell it to another individual.

Increasing rates of gun related incidents are occuring despite the strict control laws passed in the state since 1998, which are touted as among the nation’s toughest. These laws include a ban on semiautomatic assault weapons, stringent licensing requirements, and a mandate that firearms be stored safely.

Many gun rights advocates feel that these laws are misguided in that they only address the requirements for individuals who procure guns through the proper legal channels. The tragic shooting in Newtown has renewed the debate with fervor as we as a nation attempt to address how to prevent such tragedies from occurring in the future.
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Massachusetts government and law enforcement officials have introduced proposals in the hopes of expanding the limits of secret wiretapping. The reasoning behind the expansion is the purported goal of more easily gathering evidence against criminal suspects, such as with drug crimes.

According to state Attorney General Martha Coakley, the current wire tapping law has not been revised since 1968, and officials feel that it has become outdated. Coakley’s office released a statement summarizing the proposed changes. Most notably, authorities would still need a warrant to wiretap suspects, but the targets would not have to be members of a bona fide organized crime group, such as the Mafia. Additionally, once a warrant has issued for a wiretap under the new law, the revisions would extend the amount of time it could be used from 15 days to 30 days, which the statement claims is consistent with federal law
As a defense attorney, these proposals raise many concerns regarding the rights of criminal suspects. The intended purpose for using wiretaps, is to target individuals who may have sophisticated methods of evading law enforcement, such as those involved in organized crime. The use of wiretaps could lead to monitoring of individuals’ private conversations for long periods of time, and may additionally impinge on the privacy rights of the innocent individual engaged on the other end of the conversation. This could amount to the sort of unreasonable searches and seizures that are protected against by the Fourth Amendment.
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It was reported today in the Patriot Ledger that two white males allegedly robbed the Marylou’s coffee shop located at 1501 Bedford Street in Abington, Massachusetts at around 11:00 a.m. on Thursday. According to the district manager for the store, Sunisa Loring, these men used a weapon believed to be a gun or a knife after walking into Marylou’s at about 10:30. A witness described the two men as white and both were apparently wearing gray hooded sweatshirts. They demanded money from the cashier then fled in a blue Dodge Neon with the cash according to the police. The vehicle, which was reported stolen yesterday, was said to be heading south. No one was injured at the time and the police continue investigate the crime scene by dusting the shop for fingerprints.

In the Commonwealth of Massachusetts, the legal definition of the crime of armed robbery is found in G.L. c. 265, § 17. To be convicted of armed robbery in Massachusetts, the prosecution must prove four elements beyond a reasonable doubt: First, the defendant must have been armed with a dangerous weapon. Second, a threat must have been made by the defendant that put the alleged victim in a state of fear, or the defendant must have physically hurt or used force on the victim. Thirdly, the defendant must have taken the alleged victim’s possession intending to steal it. Fourth, the defendant must have taken the alleged victim’s possession out the victim’s control. The crime of armed robbery is a serious felony crime in Massachusetts. Punishment for conviction of the crime of armed robbery includes the a possibility of life in state prison or for any term of years and experienced criminal defense representation will be needed at once.

On the police investigation end, in a robbery such as this, time is of the essence. If the police find the stolen car and it is not torched, they will scour it for fingerprint or DNA evidence that could lead to identification potential suspects. Obviously, identification of the suspects is central to a successful prosecution of the case. The police will interview all witnesses at the coffee shop and will put together a photo array based upon the description that is given by the witnesses. They will pull from a pool of suspects fitting the description of the defendants, if any was able to be obtained in this case, since they were reported to be wearing hooded sweatshirts which may have totally or partially obscured their appearance. They will check to see if someone can make a positive identification. They will carefully review videotape evidence from the scene if they was a camera which is likely in this day and age. They will check adjacent businesses to see if they have a camera that may have picked up the perpetrators in another area with their hoods off of their heads that may provide for a better angle to identify them.

The police indicated that the car that the suspects were using was reported stolen at some point. They will canvas the area from where it was taken to see if any witnesses saw anything or anyone at that time. They will check with local businesses in the area to see if they had a video footage near or at the scene from where the car was taken or on the route that may have been used by the suspects. If the car was located at or near an MBTA station they will review videotape evidence and try to investigate whether the suspects used a Charlie card and try to obtain identifying information through the use of a bank subpoena. They will seek to question likely suspects. They will be looking for these potential suspects to make a mistake and talk with them and get them to confess. The police are highly trained to investigate suspects and solve crimes. They often use tactics that lull defendants into a false sense of security and then get them to talk after waiving their Miranda rights and without legal counsel present.
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On September 6, 2012, the Supreme Judicial Court of Massachusetts, the Commonwealth’s highest court, heard legal arguments on both sides of the issue of whether or not a judge should suppress the evidence seized from a defendant’s cellular telephone in circumstances where the phone was seized immediately from the defendant during a lawful arrest but searched about an hour later during the booking process at the police station without a search warrant.

The issue is one of first impression in the Commonwealth of Massachusetts and one that other state courts and federal district courts have struggled with to find the proper balance between constitutionally protected privacy rights to significant information stored on a cell phone and allowing law enforcement to continue to do their jobs to further investigate crime. Neither the Supreme Judicial Court of Massachusetts nor the Massachusetts Appeals Court have addressed the issue of whether or not a police officer is permitted to perform a warrantless search of a defendant’s cell phone content after the defendant has been arrested and the pending decision will have a significant impact on the search and seizure law in Massachusetts.

Attorney Patrick J. Murphy of the Boston based Law Office of Patrick J. Murphy presented oral argument before the seven justices of the Supreme Judicial Court on behalf of the Appellant, while Attorney Zachary Hillman presented the prosecution’s responsive argument.

Attorney Murphy stressed to the high court that the legal analysis must first begin by recognizing that the Fourth Amendment to the United States Constitution and Article XIV of the Massachusetts Declaration of Rights guarantees all people protection from unreasonable searches of their possessions and any warrantless search by the police is per se unreasonable and evidence gained therefrom should be suppressed. Additionally, Attorney Murphy argued that although there is a search-incident-to-arrest exception to the warrant requirement, that exception only applies in circumstances where the officers are searching for weapons or in a situation where there is a danger of the loss or destruction of evidence.
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It was recently reported on August 2, 2012, that Governor Deval Patrick signed new Massachusetts criminal law legislation that imposes harsh penalties for repeat violent criminal law offenders convicted in the Commonwealth. In doing so, Massachusetts now reportedly joins twenty-six additional states that have imposed strong habitual criminal offender laws. The new law takes away judicial discretion with respect to sentencing of repeat violent criminal offenders who have suffered convictions three times for certain enumerated violent crimes and makes these offenders ineligible for parole. In other words, repeat violent offenders now have to serve the full or maximum sentence with absolutely no chance for parole, probation, work release, furlough or reduction of sentence for good conduct while incarcerated.

The two previous convictions of a criminal defendant to be subject to the penalties imposed under the Massachusetts three-strikes law must have arisen out of distinct and separate incidents that must have occurred at different times. Also, these previous convictions must have carried sentences of at least three years each for the law to be applicable.

This law was sought by the father of Melissa Gosule, who was murdered by a convicted criminal who had been released early only after serving a two-year portion of a prison sentence and reportedly involved a history of twenty-seven prior felonies on his criminal record. Authorities argue that a tough three-strikes law may have avoided this and other similar, tragic losses of life.

In order to get that law passed there were certain concessions incorporated that actually decrease the mandatory minimum sentences for non-violent drug crimes for trafficking, distribution, manufacturing or possession with intent to distribute drugs such as marijuana, cocaine, heroin, morphine or opium. In some cases involving trafficking in cocaine or phenmetrazine, mandatory minimum sentences have been reduced by three years. Also, the weight requirements of certain narcotics to support a conviction for trafficking have actually increased making it more difficult for prosecutors to convict for trafficking cases.
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The Second Amendment to the Bill of Rights was ratified in 1791, and outlines the protection of the people’s right to keep and bear Arms. Over the years, the rate of gun possession and ownership has greatly increased due to increasing crime rates, expanding population, and people’s own desire to protect themselves and their property from foreign and domestic enemies. Today, not only police officers but virtually all Americans may possess a handgun for home protection. The simple fact that more people are carrying firearms has lead to the wide variety of laws and provisions outlining and policing guns. In Massachusetts, laws exist to require individuals to obtain a license before purchasing firearms and ammunition. In order to apply for a license, an applicant must first have passed a State approved firearm safety course. Even licensed firearm owners still have to be careful when carrying their weapon, as the tightly worded and strictly adhered to laws regarding guns have led to the increase in arrests for offenses such as improper storage of a gun, threatening another by displaying your gun- assault with a dangerous weapon, and other related crimes. Even with a valid license, many places restrict the carrying of firearms such as state and federal building, post offices, nightclubs, and sports stadiums.

For instance, a Quincy man was arrested June 27, 2012 after he stashed his firearm in the bushes outside a nightclub. The police arrested him for Improper Firearm Storage (Chapter 140, section 131L) and Carrying a Firearm while Intoxicated (Chapter 269, section 10H). A few months earlier in March, a Connecticut man was arrested and charged with Unlawful Discharge of a Firearm, Carrying a Firearm under the Influence, Interfering with an Officer, and Second degree breach of peace after he fired a gun in his yard. On July 8th, a Natick man was arrested and charged with driving under the influence of drugs, resisting arrest, carrying a dangerous weapon (spring-loaded knife), improper use of a vehicle and possession of a Class E substance. To evidence the extent to which gun laws are enforced, an off duty police officer was arrested and charged with murder, as well as gun and great bodily injury charges. Sheriff’s Deputy Dayle Long, a 10-year veteran, is awaiting arraignment after allegedly shooting a patron in a bar.

One of the common themes of these arrests has been the crime of Carrying a Firearm Under the Influence. In an effort to ensure safety of gun owners and the community at large, the Commonwealth makes it is a crime to carry a firearm while under the influence of drugs or alcohol under M.G.L. c. 269, § 10(h). This law applies whether you are an ordinary citizen or a police officer, and even if you are licensed to carry the weapon. This provision, however, does not prohibit a licensed individual under the influence from transporting an unloaded firearm in the locked trunk of his or her motor vehicle, unless the individual is over the legal limit of 0.08%, in which case it is against the law to operate a motor vehicle with or without the existence of a firearm. Unlike the law regarding operating under the influence (OUI), this charge does not define what constitutes being “under the influence.” Regardless, this criminal offense is a felony and a conviction is punishable by a fine of not more than $5,000 or imprisonment in the house of correction for not more than 2.5 years, or both such fine and imprisonment.
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In Massachusetts, the crimes of operating under the influence of alcohol or drugs is a very serious criminal offense, for which a conviction can severely impact your future. The official charge is Massachusetts is known as Operating Under the Influence (OUI), and any individual found to be operating a vehicle after having ingested any alcoholic beverage or chemical substance that impairs their ability to drive safely may be charged. In order to establish the requisite probable cause necessary to make an arrest, police officers use field sobriety tests, breath tests, blood tests and other tests to determine whether a person is under the influence of drugs or alcohol. The use of Field Sobriety Tests has become an increasingly regular routine in the United States, as they allow police officers to make roadside determinations of intoxication. In the event that you refused field sobriety tests, a talented Boston, Massachusetts OUI attorney will be able to file what is known as a Motion in Limine to prohibit the introduction of a defendant’s refusal of field sobriety tests. With the help of your attorney, your refusal of field sobriety tests will be blocked from trial, poking a huge hole in the prosecution’s strongest piece of evidence. Under the current case law in this area, the refusal to submit to field sobriety testing is not admissible as evidence against the defendant. Commonwealth v. McGrail, Commonwealth v. Ranieri.

WHAT IS A MOTION IN LIMINE?

A motion in limine is a legal written request filed by an attorney at a pre-trial hearing requesting that the judge rule that certain testimony regarding evidence or information may be excluded from the trial. A Motion in Limine means that the admissibility determination will be held away from the eyes and ears of the jury in a private meeting before the judge. This distinction prevents the jury from being prejudiced against the defendant due to evidence of the test result. In OUI cases, the prosecution must prove that (1) the car was operated, (2) on a public way or area members of the public have a right of access to, and (3) the operator of the vehicle was under the influence of some intoxicant. Thus, without the evidence of a refusal to take a field sobriety test, the remaining evidence may generally fall short in proving that the defendant was under the influence of drugs or alcohol. Similar to this motion is what is known as a Pierre Motion, which works to suppress the results of a breath test in OUI cases. In Commonwealth v. Pierre, the Court held that a breath test result is considered to be inadmissible at trial unless and until the Commonwealth proves the result’s admissibility by establishing compliance with breath test regulations. In the event that the administration of the test was not in compliance with State standards, the breath test result is not considered reliable evidence and therefore the test result will be barred from entered as evidence. Especially in OUI cases, having a smart and strategic OUI defense lawyer on your side can be hugely beneficial to the outcome of your case.
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