Articles Posted in Violent Crimes

At four o’clock this morning actress Lindsay Lohan was arrested in New York. It is alleged that Lohan slapped a woman at a New York City nightclub during an argument. The woman did not need medical treatment. Lohan is currently on probation in relation to a theft case having occurred last year. This arrest could result in Lohan being charged with a Probation Violation.

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Massachusetts Probation Violation Defense Law Firm

Assault and Battery Defense Lawyers in Massachusetts

A Massachusetts Criminal Lawyer will often defend alleged Probation Violations in advocate on behalf of the accused at the ensuing Probation Surrender Hearing. This process is often unpredictable and results vary from court to court. The practice of certain probation officers and/or their departments are inconsistent throughout the Commonwealth. For instance, some probation departments routinely recommend incarceration for someone they believe has violated the conditions of his probation. Some judges regularly adopt such recommendations making it almost impossible to get a just result in certain cases. Others will give the probationer a fair hearing and make their determination based on what I consider a more fair hearing. The standard at a probation revocation hearing in Massachusetts is proof by a preponderance of the evidence. The federal standard is “at least to a reasonable degree of certainty”. In my opinion the federal standard is more favorable to the accused. This cuts against the Massachusetts trend to provide more protections for the accused than does the federal courts.

In Massachusetts “[a]ny conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation.” A violation of the laws as alleged in the Lohan matter would suffice in Massachusetts. There is no requirement that the accused by convicted of the alleged crime that serves as the predicate for the violation. Similarly, an acquittal on the crimes serving as the violation does not end the surrender hearing. A new arrest provides grounds for initiating a surrender hearing. In Massachusetts a defendant’s probation may be revoked on hearsay evidence along so long as the hearsay evidence has substantial indicia of reliability. Unreliable hearsay cannot serve as the basis for probation revocation. There is a due process requirement pertaining to Probation Violations in Massachusetts however it is not nearly as strong as that in criminal prosecutions. In essence, all that Massachusetts requires is written notice of the alleged violation, disclosure of the evidence supporting revocation and the right to be heard and to present evidence. The makes it extremely important for the accused to make sure that the Massachusetts Criminal Lawyer he hires has experience with Probation Violation Hearings and familiarity with the judges and probation officers in that particular court.

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In 2003 a Plymouth County Massachusetts jury sitting on a murder case in Brockton convicted Solange Anestal of murder in the first degree. The facts of the case are as follows. The defendant and her boyfriend lived together in an apartment in Brockton, Massachusetts. On June 26, 2003 the two were home with two friends. Anestal and her boyfriend, Petitry got into an argument. Petitry did not want her going out, where she would likely spend the night with other men smoking pot. Anestal complained over the phone to a friend that Petitry was treating her like a slave, refusing to permit her to leave the house. Petitry threatened to move out and started packing. He and the defendant argued loudly. One of the friends in the house saw Petitry holding Anestal down on the bed. She was spitting at him, telling him to move. The friends heard glass break and then saw Anestal stab Petitry in the chest with some broken glass while stating that she was going to kill him. Petitry died from the stab wounds.

Anestal defended on the theory that at the time of the crime she lacked criminal responsibility. In particular, she claimed that she suffered from post traumatic stress disorder resulting from years of emotional and physical abuse. The abuse started when she was one year old and continued until the time of the stabbing. The abuse involved family members and several men with whom she had relationships. Medical testimony supported the defense. The jury rejected the defense finding that Anestal acted with deliberate premeditation.

On appeal the defendant raised several issues. Two of these issues establish the basis for reversing the conviction. The first, that the judge improperly admitted prior bad act evidence against Anestal. Particularly that she had hit her young son twice and that the defendant was the subject of a DSS investigation. The second involves the trial judge’s refusal to instruct on the excessive use of force in self-defense. If the jury believed this to be the case it could properly have convicted the defendant of voluntary manslaughter instead of murder.

Read Case: Commonwealth v. Anestal.pdf

Of particular interest to me as a Massachusetts Criminal Defense Lawyer is the prior bad act issue. All too often judges in the trial courts in Massachusetts will permit the introduction of prior bad act evidence against a defendant. They rationalize that doing so is permitted when the prosecution is offering the bad act evidence “common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” This type of evidence is also admissible to rebut contentions made by the defendant at trial. The threshold for admitting such evidence is low and rarely will a case be reversed on this basis. This case however is different. The Supreme Judicial Court correctly recognized that admitting this evidence likely had an improper impact on the jury. The prior bad act evidence in this case told the jury more about Anestal than they were entitled to know. The court believed that such information was unfairly prejudicial and that the right to a fair trial was violated.

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According to a report in the Lawrence Eagle Tribune Michael O’Connor of Salisbury, Massachusetts broke into his former girlfriend’s home this past Sunday. He allegedly attacked her and injured someone else who was present at the time. The injured party did not seek medical attention. The twenty four year old suspect is going to be charged with Domestic Assault and Battery, Malicious Destruction to Property Over $250, Malicious Destruction to Property Under $250, Breaking and Entering and Assault and Battery by Means of a Dangerous Weapon. Unless the district attorney opts to indict this case it will be prosecuted in the Newburyport District Court.

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Massachusetts Domestic Violence Defense Law Firm

Newburyport Assault and Battery Defense Lawyer

As a Massachusetts Criminal Defense Attorney here is something I thought interesting about the article. The police chief commented on this case and stated that O’Connor is not someone the “the public has to fear”. I understand the context of the comment to have centered on the act being one other than random and that the victim in this case was the intended target. Nevertheless, the sentiment appears favorable to the defendant and might have some influence on a resolution of this case. The suggestion is that the incident was isolated. If O’Connor has a job and no remarkable criminal record there might be an opportunity to resolve this case short of trial and in a way that will preserve his liberty.

Criminal defense lawyers know that accusations of Domestic Assault and Battery are often reported as being more dramatic than they actually were. Cases that are initially viewed as very serious can take on a different look once they are thoroughly investigated. Exaggerations get exposed. Defenses take shape. The accused no longer looks as bad as he once did in the eyes of law enforcement. Prosecutors in Massachusetts tend to charge the accused with every crime they believe has been committed. For instance, O’Connor has been charged with six or seven crimes. Usually a resolution of a criminal case contemplates the dismissal of some of the charges or the reduction of the charges to something more innocuous. Repetitive crimes might be dismissed or nolle prossed. Felonies might be reduced to misdemeanors. The more serious crimes, if not dismissed or reduced might be continued without a finding to spare a young person the stigma or collateral problems associated with felony convictions. The point is that someone in this position should not despair. Rather, they should hire an experience lawyer who is able to help them avoid a criminal conviction.

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The Brockton Enterprise reports that Nichole Powell, a thirty seven year old Brockton, Massachusetts woman is claiming that she acted in self-defense in relation to a stabbing incident alleged to have recently occurred. Powell has been charged with Assault and Battery by Means of a Dangerous Weapon. The alleged victim in this case is the defendant’s former roommate. Powell claims that the woman along with nine other people arrived at her apartment supposedly to recover some of her belongings. The roommate then tried to break through the door. Prosecutors say that upon arrival Powell’s son hit the woman in the face and Powell followed up by stabbing her several times. Powell denies those allegations and identifies the former roommate as the initial aggressor. The case is pending in the Brockton District Court.

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Brockton, Massachusetts Criminal Defense Law Firm

Lawyers Who Defend Stabbing Cases in Massachusetts

From the perspective of a Massachusetts Criminal Defense Lawyer two thoughts immediately come to mind when reading this article. The first is obvious. Did Powell act in self-defense. The law in Massachusetts is clear on this issue. People are allowed to use a certain amount of force to defend themselves from an attack. The question of whether or not self-defense occurred in a particular case is for the judge or jury to decide after weighing the evidence adduced at trial. The issue becomes live when the evidence, viewed in the light most favorable to the defendant raises this issue. A person in Massachusetts is permitted to use reasonable force necessary to defend himself from a physical attack. To overcome this defense the district attorney must prove beyond a reasonable doubt that the defendant did not act in self-defense. The use of a dangerous weapon changes the analysis somewhat. To avail oneself of self-defense with the use of a dangerous weapon the accused must have reasonable ground to believe that death or seriously injury was imminent. Thus, here Powell would have to reasonably believe that she was about to be attacked and that she was in an immediate danger of being seriously injured or killed. Was this reasonable here? Quite possibly. Powell was at her own home. The former roommate tried to break in. She was accompanied by nine other people. This might be the type of case where a jury or judge would believe that Powell acted in accordance with the law.

Here is the second thought I had when reading this article. Massachusetts has a law commonly know as the “Castle Law”. It is codified in Massachusetts by G.L. c. 278 Section 8A. The law states that any occupant of a dwelling charged with killing or injuring someone unlawfully in the dwelling can set forth as a defense that he or she “acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling”. The accused is required to use reasonable means to defend himself and there is no duty to retreat. The circumstances of this case might implicate this defense.

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This past Saturday police in Lynn, Massachusetts responding to a crime scene saw a man walking down a set of stairs with a knife protruding from his neck. The man was covered with blood. The victim and the defendant, Shawn Doherty of Lynn were friends since high school. The victim claimed that on Friday night the two were together. He asked Doherty to leave before his roommate came home. He then fell asleep on a couch only to wake up to Doherty on top of him and stabbing him. The victim claimed that Doherty stabbed him twice and punched him in the mouth. The motive behind the incident has not been identified. The attorney for Doherty argued that the inconsistencies in the victim’s story were extensive. He also argued that the victim suggested several motives for the attack. The case is pending in the Lynn District Court. The charges at this point appear to be Assault and Battery Dangerous Weapon and Assault With the Intent to Commit Murder. Both are felonies in Massachusetts.

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Lynn, Massachusetts Violent Crimes Defense Lawyer

Essex County Assault Charges Attorney

The first thing that a Massachusetts Criminal Lawyer sees when reading about this case is the incredibility of the victim’s story. His story that he fell asleep on a couch only to wake up to Doherty beating and stabbing him lacks a ring of truth. Why would anybody wake anyone up to stab him. It makes no sense. If Doherty really wanted to stab the victim wouldn’t you think he would do so while the person slept rather than wake him up to stab him. And if the motive, as suggested by this article was the victim’s ten thousand dollar automobile claim settlement check wouldn’t you expect Doherty to simply take it while the victim was sleeping rather than waking him up to stab him and take it? Doherty’s attorney referenced the victim’s differing accounts of the case as well. Defense attorneys love this particularly where the inconsistencies arise early in the investigation of the case. If the victim cannot even tell the truth at the time the police make their initial interview of him how will he be able to maintain consistency at the time this case goes to trial? He probably won’t.

So what really happened here? Well it appears that Doherty might have some sort of self-defense claim as set out by his lawyer at the arraignment. The victim’s inconsistent statements might just support this defense. The bigger question is whether or not Doherty’s actions exceeded that which is permissible in self-defense cases. In Massachusetts one can only use the force necessary to protect himself from the actions of the initial aggressor. Also in Massachusetts the defense can in some circumstances use instances of the victim’s prior acts of aggression to support that self-defense position.

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