Blog Posts in 2011
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Clerk Magistrate Makes Right Call on NHL Analyst Mike Milbury
Posted By Brad Bailey LawThere 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 ...Continue Reading -
Is Barry Bonds Really “Safe at Home?”
Posted By Brad Bailey LawThere’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 ...Continue Reading -
PA v. Jerry Sandusky: Why Waive a Preliminary Hearing?
Posted By Brad Bailey LawYesterday 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 ...Continue Reading -
1984 Is No Longer Fiction: Supreme Court Considers Warrantless GPS Tracking
Posted By Brad Bailey LawIt 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 ...Continue Reading -
Ineffective Assistance of Counsel During Plea Bargaining
Posted By Brad Bailey LawA 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 , ...Continue Reading -
No Sense Getting the Feds All Hot and Bothered Over Bieber Fever
Posted By Brad Bailey LawAs 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 ...Continue Reading -
USA v. Sampson: Judge refuses to be 6th Amendment’s Delilah
Posted By Brad Bailey LawYesterday, 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 ...Continue Reading -
The New Booker Era – Just Like the Old: Troubling Entrenchment in Federal Sentencing Habits
Posted By Brad Bailey LawAlthough 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 ...Continue Reading -
The A,B,C’s of jury selection include CSI?
Posted By Brad Bailey LawI’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 ...Continue Reading -
Sex, Lies, and Credibility – False Accusations and Cross-examinations Post Bohannon
Posted By Brad Bailey LawSex 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 ...Continue Reading -
Eyeing Changes to Witness Identification Evidence
Posted By Brad Bailey LawIn 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 ...Continue Reading -
DSK Means No PBRD
Posted By Brad Bailey LawAs 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 ...Continue Reading -
Major League Mistrial: Should Government Misconduct Mean Clemens-cy for Roger?
Posted By Brad Bailey LawYesterday, 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 ...Continue Reading -
Casey Anthony’s Verdict: Reasonable Doubt Rules No Matter How Distasteful One May Find the Outcome
Posted By Brad Bailey LawDespite 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 ...Continue Reading -
Whitey Bulger’s Criminal Defense on the Taxpayers’ Dime – My Two Cents
Posted By Brad Bailey LawDuring 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 ...Continue Reading
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