Practice Areas : Criminal Defense

In 2007 criminal complaints were sought against 273,716 defendants in the Massachusetts State Courts. In the District Court, where more than 230,000 defendants were brought before the court, the number of individuals prosecuted increased by 4% from the previous year. As Massachusetts becomes a more prosecution oriented Commonwealth, the need for a competent defense attorney has never been more evident.

We are one of only a handful of law firms in Massachusetts where our criminal defense practice is made up of former law enforcement officers and assistant district attorneys (prosecutors). Collectively, the attorneys in our criminal practice group have over 30 years of experience in the Massachusetts Criminal Justice System. In 2007 alone our firm handled more than 200 criminal cases in the District Court, Boston Municipal Court and Superior Court Departments of the Massachusetts Trial Courts. Due to our experience in the area of criminal law we can offer our criminal defense client’s a realistic assessment of their case and help them towards a successful resolution of the complaint or complaints against them. The following are some, but not inclusive, of the charges that we have experience with:

• Operating Under the Influence (A.K.A. OUI, DWI, Driving Under the Influence)
• General Assaultive Offenses
  • Assault
  • Assault and Battery
  • Domestic Assault and Battery
  • Indecent Assault and Battery
  • Assault by means of a Dangerous Weapon
  • Assault and Battery by means of a Dangerous Weapon
  • Mayhem
  • Murder
• Breaking and Entering
• Larceny and Fraud Offenses
• Disturbing the Peace and Disorderly Conduct
• Malicious Destruction of Property
• Criminal Harassment
• Stalking
• Intimidation of Witnesses
• Firearms Offenses
• Narcotics/Drug Offenses
• Simple Possession of a class A, B, C, D or E substance.
• Distribution of a class A, B, C, D or E substance.
• Possession with intent to distribute a class A, B, C, D or E substance.
• Trafficking in Heroin, Cocaine or Marijuana
• School Zone Violations
• Unarmed and Armed Robbery
• Rape

The following represents the typical procedural structure for most criminal cases in Massachusetts. This summary should give you a good idea of how an ordinary criminal prosecution proceeds through the Massachusetts Trial Court.

Clerk’s Hearing (Probable Cause Hearing)
In many instances a defendant is entitled to a hearing in front of a clerk magistrate before a criminal complaint is issued. If a defendant is charged with only misdemeanor conduct, and has not been arrested, then the complainant (usually the police department with jurisdiction over the matter) must afford a potential defendant this hearing, unless they can demonstrate that the defendant is a flight risk or poses a substantial risk of causing bodily harm or injury. Having experienced and knowledgeable legal representation at a clerk’s hearing is important because if you are able to resolve the case at this stage of the proceedings the matter will not be recorded on your CORI (Criminal Record).

Arraignment
It is essential that every defendant have competent defense counsel at arraignment. The arraignment is likely the earliest stage that a potential defendant and his attorney will have the opportunity to discuss the allegations against the defendant. One can argue that the arraignment is the most crucial stage of the proceedings because it is at this stage that a Judge will make the determination of whether the defendant will be held during the pendency of the proceedings or released on their own recognizance. Some of the issues that a defendant might face at arraignment are:

• Issues of Bail
• Issues of Bail Revocation
• Motions to Preserve Evidence
• Conditions of Bail (Stay Away & No Abuse Orders)
• Challenging the Sufficiency of the Complaint

Many defendants make the mistake of not hiring defense counsel for this all too important aspect of their case.

Pre-Trial Hearing
The Pre-Trial Hearing is ordinarily the first in court appearance after the arraignment. Absent unusual circumstances, it usually takes place four to six weeks from the arraignment date, depending on whether the defendant is in custody on the case.  Pursuant to the Massachusetts Rules of Criminal Procedure the Commonwealth (District Attorney’s Office) is required to turn over all mandatory discovery on this date in their custody and control, and relevant to your case. This includes items such as:

• Any written or recorded statements and the substance of any oral statements, made by the defendant or any alleged co-defendants. (Mass. R. Crim Pro. 14 (a)(1 )(A)(i)).
• Any facts of an exculpatory nature (Mass. R. Crim Pro. 14 (a)(1)(A)(iii)).
• The names, addresses, and dates of birth of the Commonwealth’s prospective witnesses, other than law enforcement witnesses. (Mass. R. Crim Pro 14 (a)(1)(A)(iv)).
• The names and business addresses of prospective law enforcement witnesses, (Mass. R. Crim Pro 14 (a)(l)(A)(v)).
• Any intended expert opinion evidence, including the identity, current curriculum vitae, and list of publications of each intended expert witness and all reports prepared by the expert that pertain to the case (Mass. R. Crim Pro 14 (a)(1)(A)(vi)).
• All relevant police reports, including, so called turret tapes, intended trial exhibits, reports of scientific examinations and statements of all parties the Commonwealth intends to call as witnesses (Mass. R. Crim Pro 14 (a)(l)(A)(vii)).
• A summary of identification procedures of the Defendant and all statements made in the presence of or by an identifying witness, including police officers, that are relevant to the issue of identity or to the fairness or accuracy of the identification procedures, (Mass. R. Crim Pro 14 (a)(l)(A)(viii)), including but not limited to:
• Record of convictions of all prosecution witnesses. (Mass. R. Crim Pro 14 (a)(2)(D)).

Although the Commonwealth is supposed to comply with their discovery obligations by the pre trial hearing date they rarely do so, and the Judge will likely give them leave to complete discovery by a date certain commonly referred to as the discovery compliance date. If the Commonwealth has not complied with all ordered discovery by the discovery compliance date then a motion for sanctions is appropriate, and the Judge may sanction the Commonwealth by excluding a piece of evidence from their case or even dismissing the case outright.

In many case the Pre Trial Hearing can be used to resolve the case short of trial by way of Pre Trial Probation, Admitting to Sufficient Facts or a Guilty Plea.

Compliance & Election
Assuming that the Commonwealth has complied with all mandatory and court ordered discovery by this event, the defendant, with the assistance of his or her attorney, will elect the next event. In most cases a substantive motion will likely be necessary such as a motion to suppress some form of physical or testimonial evidence or a motion to dismiss the matter on some other legal grounds. However, it is also common to proceed directly to a Trial date from either the Pre-Trial Hearing or the Compliance and Election Date.
In many case the Compliance & Election Hearing can be used to resolve the case short of trial by way of Pre Trial Probation, Admitting to Sufficient Facts or a Guilty Plea.

Substantive Motions
Substantive motions are those motions filed by Defense Counsel that are not germane to ordinary discovery motions. The following are some common substantive motions ordinarily filed in a typical criminal case. In many case the Motions Hearing can be used to resolve the case short of trial by way of Pre Trial Probation, Admitting to Sufficient Facts or a Guilty Plea.

Motions to Suppress Evidence
There are several grounds where evidence suppression is warranted. If the police department’s actions during the course of their investigation are not consistent with the United States Constitution and the Massachusetts Declaration of Rights then the Court may order that evidence recovered by them can not be used in the case. Many times a successful motion to suppress negates a crucial piece of evidence that is necessary for the Government to prove their case, therefore making it impossible to successfully prosecute a defendant.

• Motion to Suppress Physical Evidence
• Motion to Suppress Testimonial Evidence (Statements)
• Motion to Suppress Identification

Motions to Dismiss
Ordinarily a Judge cannot dismiss a case over the Government’s objection unless specific grounds are raised by defense counsel. Some of those grounds are:

• Double Jeopardy concerns
• Failure of the Government to comply with discovery
• Defective complaints
• Complaints issued without the benefit of a Clerk’s Hearing
• Complaints issued that are not supported by probable cause
• Speedy Trial Concerns
• Prosecutorial Misconduct
• Defendant’s successful completion of a Department of Public Health approved substance abuse program under Chapter 111E of the Massachusetts General Laws

Motion to Reduce to a Civil Infraction
In this under utilized motion a Judge may reduce certain misdemeanors to a civil fine, therefore alleviating a defendant of any criminal sanctions. The benefit of filing this motion, when applicable, is that the Commonwealth may only object in writing, and must report their objection to the Ways and Means Committee of both the Massachusetts House of Representatives and the Massachusetts Senate.

Trial
The trial date can be the most stressful or exhilarating day that a criminal defendant will experience during the course of their prosecution. Very few cases ever go to trial, and most are resolved prior to the trial date by some sort of plea, admission or outright dismissal. However, in the event that your case goes to trial your defense attorney should be competent at trying a case. Because so few cases actually go to trial there are very few criminal defense attorneys that have substantial trial experience. The attorneys in our criminal practice group have conducted more than 30 jury trials and countless bench trials.

It is the job of the criminal defense attorney to raise doubt about each and every element of the charges reflected in the complaint against the defendant. In other words, it is the defense attorney’s role to challenge the allegations through cross examination of the Government’s witnesses, direct examination of defense witnesses and the introduction of exculpatory evidence on behalf of the defendant. Competent cross examination and direct examination of witnesses is a product of due diligence on behalf of defense counsel in the phases leading up to trial. A well prepared defense attorney will significantly increase the chances of an acquittal at trial.

Post Conviction Representation
Probation Surrenders/Violation Hearings
If a defendant is placed on probation by a court they have several obligations that they must adhere to in order to avoid violating the terms and conditions of their probation. Generally, probationers have regular reporting requirements with their probation officers, and they must pay a monthly fee. The most common violation of probation results when a probationer is charged with additional crimes while they are on probation. Other terms may include random drug testing and enrollment in Court sanctioned programs such as anger management, driver alcohol education, or substance abuse treatment. Typically, most probationers do not substantially comply with the terms and conditions of their probation therefore exposing them to potential incarceration.

There are two phases to a probation violation/surrender hearing:

• Initial Probation Violation/Surrender Hearing: The Probation Department files a notice of violation with the Court and serves either the Defendant or the Defendant’s attorney. At this stage the Probation Department has the burden of establishing that there is probable cause to believe that the probationer violated the terms and conditions of his or her probation. The Probation Department may request that the probationer be detained (incarcerated) until their Final Probation Violation/Surrender Hearing.
• Final Probation Violation/Surrender Hearing: At the Final Probation Violation/Surrender Hearing a Judge will make a determination of whether a probationer violated their probation, and if so what is an appropriate disposition for the violation. The Probation Department bears the burden of proving by a fair preponderance of the evidence that the probationer violated some terms or conditions of their probation. If the probationer is found in violation then the Judge has several options:
• Place the probationer back on probation
• Incarcerate the probationer for either the maximum term allowed for the offense or a portion of the maximum.
• Incarcerate the probationer for a portion of the maximum sentence allowed with an additional term of probation upon release from incarceration.
• Terminate probation outright

When the Probation Department files that original notice with the court there are many legal intricacies associated with probation surrenders that may be the difference between a defendant’s liberty and a lengthy term of incarceration. Having competent defense counsel is essential in protecting your rights as a probationer. At Goodwin Sichau, P.C. our attorneys have handled hundreds of probation surrender hearings, and we understand the legal nuances associated with them.

Motions to Revise & Revoke
This motion allows a Judge to revise a sentence imposed by him or her so long as defense counsel files the motion within 60 days of the imposition of the sentence. The benefit of filing this motion may not be recognized until years later when a former defendant is attempting to seal their criminal record for employment purposes or when there are collateral consequences associated with the existing sentence such as relief from immigration consequences or denial of professional licenses. So long as the motion is filed within 60 days of the imposition of the sentence the sentencing Judge may act on it at anytime in the future.

Motions to Vacate Pleas
Of the several hundred thousand criminal cases that are adjudicated in the Massachusetts Trial Courts every year a large number of these cases are resolved by plea bargaining. In other words, Defendants either admit that there are sufficient facts to warrant a guilty finding or they outright plead guilty. There are certain procedures that the Court must follow when adopting a guilty plea or finding sufficient facts. For example, they must inform the Defendant, on the record of their right to a trial by either jury or judge, and collateral exposure to the plea such as immigration consequences and potential lifelong registration with state boards. If even one of these procedures is not followed a defendant may have grounds to vacate a plea. If successful the matter is returned to the trial list as if the plea never happened. If some time has past since the plea was entered it may be very difficult for the prosecution to proceed with the case. The government’s witnesses may no longer be available, and crucial evidence may have been destroyed. Many times a successful motion to vacate a previous plea will result in a dismissal of the charges.

Motions for a New Trial
The trial judge may grant a new trial at any time if it appears that justice may not have been done. The typical scenario where this motion would be sought is when there is newly discovered evidence relating to the case that probably would have been a real factor in the jury's deliberations, and could not have been discovered by defense counsel through diligent efforts before trial.

Plea Bargaining
The large majority of criminal cases in Massachusetts are resolved by way of plea bargaining. In our opinion plea bargaining is more of an art than a science. Because a defendant is pleading guilty or admitting to sufficient facts the effort of defense counsel is better placed into the disposition and resulting sentence rather than their guilt or innocence. There are generally two types of pleas.

• Agreed upon Pleas: An agreed upon plea means that the defense team and prosecution agree on the type of disposition (Guilty or Continued without a Finding) and the sentence. There is enormous value in having the prosecution and defense on the same page when persuading a Judge to adopt a specific plea. Although Judges are supposed to be fair, impartial and not persuaded by external influences they are still human, and validation by the prosecution on any plea goes a long way.
• Disparate Pleas: A disparate plea occurs when the prosecution and defense differ on how a case should be adjudicated. They may differ on the type of plea (Guilty or Admission to Sufficient Facts) or the type of sentence (incarceration, probation or a combination of both). The art of plea bargaining is most evident in disparate pleas because it takes an enormous amount of persuasion on behalf of defense counsel.

Perhaps the most beneficial aspect of plea bargaining is the availability of the Continuance without a Finding (A.K.A. the “CWOF”). Nearly all criminal offenses (even felonies) that are adjudicated in the District and Boston Municipal Courts can be resolved by way of CWOF. The offenses that cannot be resolved by way of CWOF are typically those that have minimum mandatory sentences attached to them such as distributing narcotics in school zones and unlawfully carrying firearms. After an admission to sufficient facts, a Boston Municipal Court Judge or District Court Judge may continue the matter without entering a finding of guilt or innocence for whatever period of time the Judge sees fit. Similar to probation the Judge may impose certain terms and conditions associated with the continuance. If the Defendant does not violate any of the terms and conditions imposed during the continuance period then the case is dismissed. The only drawback to the CWOF is that the Federal Judiciary treats the CWOF as a guilty conviction for immigration purposes and predicate offenses for federal sentencing enhancements.

If a defendant has an open case, and is charged with a new case, the Government (Prosecutor) can move to revoke the defendant’s bail on the open case (even if they were released without posting any bail on the open case) resulting in an instant 60 day period of incarceration.

A bench trial is the same as a jury trial, but instead of a jury of 6 or 12 making findings of fact, the Judge presiding over the trial acts as the fact finder. There are usually tactical considerations in electing this type of trial.