Criminal Defense

Accidents are called accidents because they are unintended. But sometimes unintended events give rise to criminal charges. This can be particularly troubling when the charges are motor vehicle violations that can have a serious impact on someone’s driver’s license. This fellow lost control of his car and drove through someone’s yard, taking out their stone wall. The police alleged that the driver tried to flee the scene. We found a different way to frame it and his case will be dismissed prior to arraignment without having to come back to court.

This former law enforcement officer was facing assault charges. In a complex issue involving security footage, tempers, and conflicting accounts, this gentleman’s gun license and reputation are no longer at stake now that his case is dismissed before being officially charged and arraigned.

This professional’s driver’s license was in peril after law enforcement sought charges of negligent operation of a motor vehicle. The alleged facts were that she was driving too fast in a residential neighborhood and passed a school bus full of kids. Things aren’t always what they seem and after some negotiation we were able to convince the court to dismiss the matter upon successful completion of a driver’s safety class. Crisis averted.

For better or worse, so-called “johns,” (men who pay for sex) are rarely prosecuted. The tide is beginning to change on that issue and Massachusetts, and our client was charged with engaging in sexual conduct for a fee. And some sparring and heated negotiation with the court’s top prosecutor, the case was dismissed after 30 days and 10 hours of community service.

This fellow got busted for possession of Ketamine at a summertime concert. The problem with ketamine is that it’s a Class A drug in Massachusetts, on par with heroin, meth, fentanyl, and the particularly unsavory Gamma Hydroxy Butyric Acid. Without giving away too much, the consequences of a conviction, or even a plea deal, for this gentleman would be catastrophic and probably newsworthy. Thankfully, his case was dismissed at his first court appearance.

As the sun rose over the water, I heard my phone vibrate in the chest pocket of my waders. The only people that would be texting me this early were either a fishing buddy with some good intel, my wife, or my paralegal.  Heed the call, I said. So, I took my phone out.  It was my paralegal.  A father had called the office in a panic because his son had been pulled over for speeding, which turned into an arrest after it was learned that the son had two outstanding warrants from 2014 related to cocaine distribution charges.  Two felonies.  This is bad stuff. I wanted to stem the tide for the prosecution, so I made a few phone calls. 

As it turned out, 8 years ago my client had been working at a local restaurant and a narcotics agent purportedly bought some cocaine from him on two separate occasions. A classic sting operation, that, as you’ll see, became completely defanged. 

A Good and Respectable Man

When the police witness a crime—in this case, a felony—they can make an immediate arrest.  If they don’t make an arrest, they must apply for an arrest warrant supported by probable cause. Why they didn’t arrest this fellow at the time of the alleged incident, I don’t know.  Maybe they wanted to gather evidence of a drug distribution ring, who knows.  In any event, the arrest warrant was issued an arrest was never made.  Until of course, during a routine traffic stop in the summer of 2021.  Before this, my client, a good and respectable man, had no idea he was caught in the crosshairs of the law. 

I recently won a case that involved misdemeanor and felony charges of domestic violence and witness intimidation.  If my client was convicted, he would probably have very serious immigration consequences. The threat was real, and the facts of this case were difficult: my client’s wife claimed that she was assaulted after declining to have sex with him. According to the wife, she tried to call 911 but he grabbed the phone out of her hand before she could tell dispatchers what happened.  I listened to a recording of the 911 call and couldn’t make out what the wife was saying. The dispatcher, however, apparently heard something different and claimed that before the call disconnected, the wife said that her husband was beating her.  To make matters worse, a neighbor who had heard a commotion from my client’s apartment also called 911.  When the police arrived on the scene, they spoke with the wife who told them what happened. We were facing an uphill battle, but then we caught a lucky break that later gave me the opportunity to make an argument using the United States Constitution. 

Marital Privilege in Massachusetts

Here’s how it worked.  In Massachusetts, there is a legal doctrine called marital privilege.  Under marital privilege, a married person cannot be compelled to testify against his or her spouse. In most situations, the prosecution can, for lack of a better word, force a witness or victim to testify. So, for example, if a boyfriend is alleged to have assaulted his girlfriend and she tells this to the police, she cannot then turn around at the time of trial and refuse to testify.  If the prosecution wants to go forward with the case, they can require her to testify.  That would not be the case if someone invoked the marital privilege, however. Using my case as an example, the Commonwealth wanted to prosecute the case fully, but my client’s wife asserted her marital privilege which meant they couldn’t force her to testify. Without her testimony, the prosecution would have a difficult time proving its case and I thought that would be enough to get case the case dismissed.  I was wrong. After some negotiation, the Commonwealth told me that it still wanted to pursue the case against my client and that it would use the statements that my client’s wife made to the police. In other words, the prosecution said they didn’t need her live testimony at trial and would instead have the police officer testify as to what the wife said. This is where the real opportunity to win came from. 

Many arrests come from routine traffic stops. You would be shocked by how many people find themselves at the wrong place at the wrong time. It happens all the time. In the early morning hours, a police officer alleged that he saw my client approach a four-way intersection while driving, slow but not come to a complete stop, and pass through a stop sign. The officer turned on his overhead emergency lights and then stopped my client’s car.

Reasonable Suspicion in Massachusetts

A “stop” is a very important moment for a citizen. In Massachusetts, the police may stop a car when the officer has “reasonable suspicion” that the occupants are committing, or are about to, commit a crime.  The police are also allowed to stop a car if an officer sees a civil motor vehicle infraction. Essentially, this gives the police virtually limitless authority to pull people over. Sunglasses hanging down from the rearview mirror? Expired registration decal on your license plate? Broken taillight or missing license plate light bulb? Excessively tinted windows? These are all valid reasons for a police officer to stop you.  What’s more, if the traffic stop was lawful, it does not matter what the officer’s underlying motive for the stop was.  That means that the police may use an observed traffic violation as an excuse for investigating other suspected wrongdoing or criminal activity.  For example, if the officer has a suspicion that the driver may be in possession of drugs, that officer can stop the car so long as sees a motor vehicle infraction, such as the wheels going over the white fog line on the right side of the road or speeding (even if it’s 5 MPH over the speed limit). 

Once my client was stopped, he was “seized” within the meanings of the Federal and Massachusetts constitutions. This is important because the seizure (the initial stop) must be lawful. Remember: a police officer is justified in stopping a car if there is reasonable suspicion that the person stopped is committing, has committed, or is about to commit a crime, or if the officer has observed a traffic infraction.  Here, the stop appeared to be lawful because the officer saw my client commit a traffic violation by failing to stop at a stop sign.  What happened next, however, was illegal.