Blog Posts in 2011

  • Clerk Magistrate Makes Right Call on NHL Analyst Mike Milbury

    There is little doubt that the Clerk Magistrate Hearing last week which resulted in the declination of charges against former Boston Bruins player, coach, and current NHL television analyst Mike Milbury restored some much-needed sanity and common-sense logic to the occasionally way-out-of-proportion parameters of youth sports. How do I know this? I was not only once (okay, four times over) a ...
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  • Is Barry Bonds Really “Safe at Home?”

    There’s been a good deal of criticism about the sentence imposed on former Giants Slugger Barry Bonds in a federal courtroom in San Francisco last Friday, but I think US District Judge Susan Illston got it right. The prosecution was seeking a federal guidelines sentence of 15 months in prison, but Judge Illston went along with US Probation’s recommendation of no jail and instead imposed 30 days ...
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  • PA v. Jerry Sandusky: Why Waive a Preliminary Hearing?

    Yesterday a reporter asked me about the decision by Jerry Sandusky’s attorney to waive his right to a preliminary hearing in which he would have had an early opportunity to face his accusers (perhaps as many as 11) in court. Frankly, I found the attorney’s decision to be another "head-scratcher" in what is becoming a pattern of unconventional decisions by the defense in this case. Yes, I am leery ...
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  • 1984 Is No Longer Fiction: Supreme Court Considers Warrantless GPS Tracking

    It sure looks like the sitting justices on the United States Supreme Court are on the right track (pun fully intended) from the questions asked yesterday in United States v. Jones , a case in which the U.S. Solicitor General’s Office is arguing that the police are entitled to secretly install a Global Positioning System ( "GPS") on a motor vehicle without a warrant in order to track a crime ...
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  • Ineffective Assistance of Counsel During Plea Bargaining

    A plea bargain is a critical step in anyone’s criminal defense. It is ineffective assistance of counsel when an attorney gives bad advice regarding a plea bargain, a situation that I am all too often asked to "fix" when the defendant comes to me seeking a second opinion after his conviction. Earlier this week, the Supreme Court of the United States heard arguments in Lafler v. Cooper, No.10-209 , ...
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  • No Sense Getting the Feds All Hot and Bothered Over Bieber Fever

    As if there weren’t enough issues already with various attempts to criminalize the downloading of music, videos, and images, we are now confronted with yet another proposed criminal law, the Commercial Felony Streaming Act. In essence, if passed, the Act will make the streaming of copyrighted work by any person a felony punishable by up to five (5) years in prison. Now, I’m all for protecting ...
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  • USA v. Sampson: Judge refuses to be 6th Amendment’s Delilah

    Yesterday, United States District Court Judge Mark L. Wolf issued orders overturning the death sentence previously imposed after a jury trial in the District of Massachusetts on the fate of convicted serial killer Gary Sampson (at least temporarily). United States v. Gary Lee Sampson , No. 01-cr-10384-MLW. While my heart goes out to all of the families of Sampson’s victims, especially that of ...
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  • The New Booker Era – Just Like the Old: Troubling Entrenchment in Federal Sentencing Habits

    Although somewhat idiosyncratic, and arguably esoteric, to those of us specializing in federal criminal defense, one of the more important decisions in the past decade regarding the rights of individuals convicted of federal crimes is United States v. Booker , 543 U.S. 220 (2005), wherein the Supreme Court of the United States (SCOTUS), in essence, ruled that the United States Sentencing ...
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  • The A,B,C’s of jury selection include CSI?

    I’m not surprised by the Massachusetts SJC’s opinion today permitting the prosecutor in Commonwealth v. Perez , No. SJC-10208 (Sept. 23, 2011) to question prospective jurors about the so-called "CSI-effect". The reality is, jurors’ expectations that the government can and will prove an accused’s guilt to a scientific certainty, the apparent by-product of watching too many not necessarily-based in ...
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  • Sex, Lies, and Credibility – False Accusations and Cross-examinations Post Bohannon

    Sex crimes prosecutions have come a long way since the days at Common Law where an alleged victim’s accusation had to be accompanied by corroboration. Comprehensive Rape Shield Laws and Victims’ Rights Acts have certainly leveled the playing field since that time for purported sex crimes victims both locally and nationally. As a long time sex crimes defense attorney (and former sex crimes ...
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  • Eyeing Changes to Witness Identification Evidence

    In November, the U.S. Supreme Court is scheduled to hear arguments in Perry v. New Hampshire . That case will signal the first time in nearly thirty-four years when the High Court will have examined the issue of admissibility of eyewitness identifications, something last addressed in Manson v. Brathwaite , 432 U.S. 98 (1977). Clearly there have been numerous statutory and technological ...
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  • DSK Means No PBRD

    As a criminal defense attorney, it is rare for me to take the time to publicly praise any Prosecuting Authority. This week’s decision by the New York County (Manhattan) D.A.’s Office to dismiss all charges, post-indictment, against Dominique Strauss-Kahn ("DSK"), the former head of the IMF, In re: the People of the State of New York against Dominique Strauss-Kahn , No. 2011NYO35773 provides one ...
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  • Major League Mistrial: Should Government Misconduct Mean Clemens-cy for Roger?

    Yesterday, the airwaves were awash in commentary on a federal judge’s decision to declare a mistrial in United States v. William R. Clemens a/k/a Roger Clemens , No. 10-cr-00223, involving the pitching legend’s alleged perjury before a U.S. congressional Committee in February 2008. On one sports talk call-in show, a caller purporting to be a criminal defense attorney explained that the case had to ...
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  • Casey Anthony’s Verdict: Reasonable Doubt Rules No Matter How Distasteful One May Find the Outcome

    Despite a multiplicity of opinions to the contrary and informal polling suggesting that “two thirds of those polled believe Casey Anthony to be guilty of murder”, about the only things established by the outcome in State of Florida v. Casey Marie Anthony , (No. 48-2008-CF-0015606-O) are that jury trials really are marathons, not sprints and that no matter the accusation, the accused need not prove ...
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  • Whitey Bulger’s Criminal Defense on the Taxpayers’ Dime – My Two Cents

    During the past week as both a TV commentator and a practicing criminal defense attorney, I have been asked what right James "Whitey" Bulger has to obtain a tax-payer funded attorney to represent him in the case now titled United States v. James J. Bulger , No. 99-cr-10371. Indeed, a number of folks I have spoken with, or heard from via their own public commentary, seem outraged by the ...
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