Adult and Juvenile
Juvenile defense is a specialty within criminal defense. Juvenile criminal charges are no joke – they have to be treated just as seriously as criminal charges in adult court. Juveniles face commitment to the Department of Youth Services in the cases of conviction, and particular care must be taken to protect young person's records. Most importantly, adolescence is a developmental period, and the criminal justice system is no place for that development to occur. There are other ways that adults and the state can provide juveniles with services if that is what they need, but juvenile criminal charges have to be delicately handled, but aggressively defended.
Probation
Sometimes, the only way to avoid jail time is to accept a period of probation and agree to abide by certain conditions of that probation. Those conditions can be specific to the needs of the particular case, but will usually include restitution (in cases of theft or property damage) the following additional conditions:
- Obey all court orders and all local, state and federal laws, including any order of child support
- Report to your probation officer at such times and places as he or she requires, and make no false statements to your probation office
- Notify your probation officer within 48 hours if you change residence or employment
- Pay any ordered Probation Supervision Fees monthly or, if permitted by the court, perform community service monthly
- For felons, submit a DNA sample; for some sex offenders, register with the Sex Offender Registry
- Sign all releases necessary for supervision and verification of compliance
- Allow your probation officer to visit you in your home with or without notice
- Report to your probation officer within 48 hours of release from incarceration
- Do not leave Massachusetts unless you get the express permission of your probation officer and sign a waiver of rendition
Probation can be expensive and burdensome. The probation service fee of $65/month adds up very quickly, and the conditions can sometimes make finding work to pay that fee difficult. Slight technical violations can be handled without involving the court, or (depending on the probation officer's disposition) submitted to the court for a finding of violation. If you feel like the conditions are overly burdensome, or if you think you might not be able to 100% comply with those conditions, call your lawyer immediately. You may think that your probation officer is on your side, and they might be, but if and when they decide to ask the court to find a violation, it's their word against yours, and they are taking notes.
Probation Violations
When you are charged with a criminal offense, the Commonwealth has to prove each element of the charge <beyond a reasonable doubt>. But once you are on probation the Commonwealth can prove a violation of your probation without having to prove it beyond a reasonable doubt. All the Commonwealth has to show is that you violated one of the conditions of your probation, one of which is that you not violate any criminal law. Many times, a criminal case can be defensible, but if the defendant is also on probation, defending that violation can be much more difficult. Still, some probation cases are defensible, and when they are those defenses have to be built up before the hearing because every probation violation is entered on your record, and judges will consider those violations in the future if you ever appear in court again, or have to ask that the <conditions be modified>.
The great majority of probation violation work comes in working with the probation department to find a resolution that satisfies both parties, but even when the probation department is not willing to work with you, a good lawyer can work to get the judge on your side and ask the judge not to impose the penalties the probation department is asking for.
Finally, YOU MUST CONTINUE TO COMPLY WITH YOUR CONDITIONS OF PROBATION EVEN WHILE A PROBATION VIOLATION HEARING IS PENDING. The probation department seldom advises probationers that, even while they are asking the court to revoke the probation and send the probationer to jail, the probationer still has to comply with the terms of his probation, such as periodically checking in with the probation officer. Then, when that person stops checking in (because their probation officer is already asking that they be locked up), the probation department turns around and uses that failure to check in as a further violation of probation. It's a trap that too many people fall into, and it is one of many that can be easily avoided by contacting your lawyer.
Probation Detainer
In the event that the probation department asks the court to find a violation of probation and impose a sentence, the court is authorized to hold the defendant in jail, without bail, for thirty days pending the outcome of the probation matter if the probation department can show that there is probable cause to believe the offense occurred.
Clerk Magistrate's Hearings
Many cases do not begin in criminal court, they begin at a clerk-magistrate's hearing where the victim or the Commonwealth have to show probable cause to believe that the crime was committed. If you are summonsed to a clerk-magistrate's hearing you should contact a lawyer because those hearings are the last thing standing in between you and a <criminal record>. At the hearing your lawyer can argue that the case should be dismissed before it ever shows up on the court's docket. Alternatively, your lawyer can negotiate a plan to make the victim whole without having to bring the case to court. Even best lawyer in the Commonwealth can't change the fact that every case shows up on your record, even if it is dismissed, unless you <ask a court to seal it>, but if you can resolve the case at the clerk-magistrate's hearing then nothing at all shows up on your record.
Bail Revocation Hearings
When you are admitted to bail, you are essentially released pending the outcome of the trial, on condition that you post a certain amount of money to ensure that you will appear for trial. However, like probation, there are other conditions of your release on bail, such as the condition that you not commit any criminal offense while on release. If you are charged with a criminal offense while you are currently released on bail on another case, and if the court in that case gave you sufficient warning, you can be held without the right to be bailed out for up to sixty days. Being held for sixty days is not a foregone conclusion if you have been arrested or summonsed on a new case while you are out on bail, but it is of the utmost importance that you consult an attorney immediately if you are facing the revocation of your bail. If you have been arrested or summonsed while on release, call me now for a free consultation.
Dangerousness Hearings
The Massachusetts Dangerousness statute defines certain crimes and criteria under which a defendant can be held without the possibility of being bailed out for ninety days. That's a full three months in jail before the Commonwealth even has to prove its case against you. This statue is commonly invoked in cases where a defendant is charged with using a firearm during a crime. However, recent legislative changes have expanded the scope of the law. A dangerousness hearing requires the Commonwealth to prove that the charges fall under the statute authorizing the defendant's detention, and that no conditions can be imposed by the court that would adequately protect the public. Even before the Commonwealth has to prove that much, the defendant can be held for three days without any proof whatsoever. Dangerousness hearings are very serious matters and require substantial preparation in a small amount of time. They can be won, and ought, in every case, to be fought vigorously.
Restraining Orders
In Massachusetts, there are harassment restraining orders and abuse prevention orders. Harassment restraining orders require proving a pattern of three or more harassing events in court. Abuse prevention orders require proving in court a reasonable fear of abuse. A <restraining order violation> is a serious criminal offense which is why you should talk to a lawyer immediately if someone is asking a court for a restraining order against you. If you are the one asking for a restraining order, or if you have any questions about whether you can get one, you can contact me at any time for a free consultation at which I can tell you whether and how to go about getting one of these orders.
Criminal Records
Your criminal record is a document maintained by the state, called your “CORI” record, which lists all the offenses for which you have been charged, what happened in court on those offenses, and what the final resolution of the case was. It includes all charges, whether you were convicted or not, including cases where the charges were dismissed.
The recent CORI Reform Act of 2010 specifies that as a general rule employers and landlords can access records of convictions for murder, manslaughter and sex offenses, felonies within the last 10 years, and misdemeanors within the last 5 years. If any results are displayed, all previous convictions are also displayed. Employer and landlords can also see open and pending cases, including cases which were “continued without a finding” while that continuance is in effect. Further, employers with special needs such as schools, camps, banks, security agencies, hospitals, and nursing homes can obtain additional access.
While the CORI does not include out of state records, a “triple I” report will include all offenses in every state, and are frequently requested by police and prosecutors.
Record Sealing
Recent changes to the CORI law in the CORI Reform Act of 2010 specify that you may be eligible to have your record sealed if you have had no criminal conviction for a period of at least five years (to seal a misdemeanor), ten years (to seal a felony), or 15 years (to seal some sex offenses). If you are eligible to have your record sealed, it is almost always worth it to do so.
Appeals
Sometimes the law is on your side, but the finder of fact is not. If you went to trial you have the right to appeal your conviction by asking a higher court to rule on whether or not the court where your case was heard followed all of the rules of court and applied the law correctly. Appeals are a uniquely academic process, but a powerful tool in criminal defense. If the law is on your side, no matter how bad the facts are, it is the job of the appeals court to say so.
Reasonable Doubt
Reasonable doubt is the most powerful weapon in the criminal defense arsenal. To obtain a conviction the state has to prove you guilty “beyond a reasonable doubt.” That means that it is not enough to make the judge or jury think you may have committed the crime, or even that you probably committed the crime – the state has to prove that you committed the crime with evidence so strong that the members of the jury are satisfied that there is no remaining reasonable doubt that you may be innocent. As the defendant you don't have to prove anything. As the defendant you cannot be forced to testify, and the burden of proving it's case remains with the state from the beginning to the end.