Boston Mass Assault Results In Multi-Defendant Murder Trial- Attorney Sam’s Take

Two years ago, a group of men capped off a friend’s funeral by allegedly committing murder. These gentlemen were in South Boston and are now hereinafter referred to, collectively, as the “Defendants”.

It was August, 2009, and the Defendants, dressed in their red tuxedos had apparently decided to go “clubbing” to drown their sorrows after the funeral. According to the Commonwealth, they had a verbal disagreement with 22-year-old Jose “Danny Alicea and two of his friends outside Club 33 on Stanhope Street.

These exchanged words were then capped by one of the Defendants’ allegedly throwing a bottle at their sparring partners. Yes, as in assault with a dangerous weapon (to wit: a bottle).

A melee erupted between the two groups.

Police arrived to find Mr. Alicea lying on the ground, bloody and unconscious. People were trying to wake him.

They couldn’t. He was dead.

The first group of the Defendants, Jason Benalfew, 28; Daniel Ek, 24; and Johan Garcia, 30, all of Lynn; and Anthony Villalobos, 23, of Revere, began their second-degree murder trial on Monday. A second group of the Defendants will be tried at another date.

In his opening statement, the prosecutor acknowledged to the jury that none of the Defendants intended to actually kill Mr. Alicea. “But make no mistake about it”, he explained, “This was no accident.”

All four defense attorneys decided to make opening statements on behalf of their clients. They argued that law enforcement had unfairly lumped their clients together amid the chaos. They further pointed out that, under the law, merely being present at the scene of a homicide is not a crime.

One defense attorney predicted that the case will be too confusing to reach a verdict. He told the jurors, “You will have more questions than answers about who did what.“You won’t be able to tell whether one is going in the direction of the (brawl) to help, to watch or to fight.”

Through my quarter century of experience in criminal law practice, I have brought many cases to trial. Through many years of training less experienced attorneys and law students on trial practice, I have been intimately involved in many more trials.,

Trials are the “moment of truth” in the trenches. It is the front line of the mounting battle between defense and prosecution in any given case. While every case is different, certain things tend to happen more times than not.

For example, beginning a trial telling the jury that they are unlikely to understand what the heck happened in the case they are about to hear is generally not a great idea. First of all, the prosecution has just laid it out for them. While it is fine to say that the Commonwealth is not going to be able to prove the allegations beyond a reasonable doubt, starting the trial by basically insulting the jury is not terribly wise.

It basically challenges them to be sure to keep their facts straight in spite of you. “in spite of you” translates to they do not like you. Not liking you is not going to help your client.

These type of cases do have their difficulties built into the prosecution. After all, this was a melee by all accounts. There will unquestionably be issues as to who did what. Even if the Commonwealth’s witnesses offer clear accounts about how events transpired, there will be questions as to their ability to perceive.

Is that the end of the prosecution’s hope to prove their case beyond a reasonable doubt?

No.

As we have often discussed, the Commonwealth’s theory in these cases are that the Defendants acted in a joint enterprise. It is a conspiracy-type of theory. Should they be able to show that the Defendants acted together, each defendant will be responsible for what their co-defendants did. True, the defense may argue that this is not fair, but the judge and prosecution will tell the jury that it is the law.

This is not a “Murder One” case. The prosecution does not have to show that there was “deliberate premeditation”. Merely “Malice aforethought”. There are differences, which the court will explain to the jury. Additionally, the jury could convict the Defendants if it finds that the killing was caused while in the commission of a felony not punishable by life imprisonment.

Yes, assault with a dangerous weapon qualifies.

So, the bottom line is that this case is not a “slam dunk” for any side.

Clearly, an experienced trial attorney will increase chances of success. But then, I have told you that many times already.

If you have a criminal case to face, and would like to discuss it with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.bostonherald.com/news/regional/view.bg?articleid=1313770

View the original article here

Continue Reading...

Fall River Man Released In Boston Murder But Held On Drug Charges- Attorney Sam’s Take

It would appear that Fall River’s Shawn Drumgold, 45, (hereinafter the “Defendant”) has clutched defeat out of the jaws of victory. He was once wrongfully convicted of a 1988 Boston murder. He ended up being exonerated and released. He then even won a lawsuit, and a $14 million judgment for said conviction.

That's where the good news ends.

Yesterday, he was back before the bar of justice...now arrested on drug charges, including possession of a Class A substance with intent to distribute. After pleading “not guilty”, he was released on $500 cash bail.

According to a Boston police report, an informant told police earlier this month that drugs were being sold out of a particular Roxbury. Police raided the apartment on Wednesday, the report states, and recovered several bags of heroin and crack cocaine, as well as $304 cash from the Defendant’s person. He was arrested along with several other suspects, authorities said.

The Defendant had been released in November, 2003 after prosecutors said they believed he was wrongfully convicted because he did not receive a fair trial. In April 2008, a federal jury in Boston ruled that a city police detective violated the Defendant’s civil rights during the investigation by concealing that he gave money to a key prosecution witness before that witness testified in the murder trial. The jury awarded the Defendant $14 million, plus interest, in October 2009.

The Defendant’s current lawyer says that the Defendant has been working as a day laborer but has not received any job training or counseling from the state, which is required by law under the wrongful conviction statute.

‘‘I’m sure that 15 years of demons [in prison] takes a lot of counseling to take care of,’’ she said.

I have been in the criminal justice trenches for around 25 years. I can tell you that to be able to show your innocence and get out of prison on a murder case is to seriously beat the odds. To have such a thing happen at the behest of the prosecution is basically a miracle.

Indeed, the Defendant’s life seems to be a roller coaster ride. Big highs, big lows.

After all, being found guilty of murder and thrown into prison is a downer for anyone. One can only imagine the horror if you know you are not guilty! How that effects a person I can only imagine.

One can also only imagine the difficulty of trying to rejoin society after such a thing with no training or counseling.

By the way...if you are wondering what happenned to the money he won? He hasn't gotten it. The Commonwealth is deciding whether to appeal the jury's verdict.

And yet…while that may be a part of how the Defendant finds himself in this new trouble, the same system which wronged him before will likely not consider these uncomfortable details. Today, he stands simply just another criminal defendant who has been arrested in our crusade against the drug trade.

And who’s job will it be to stand up and demand that the judge and jury remember that he is a human being, not just a “defendant”?

His lawyer. If the Defendant is lucky, she is an experienced attorney. It could make the difference between fair treatment as a human being and another cruel blow of criminal justice fate like he received before.

If you would like to discuss a criminal matter with me, whatever your past, please feel free to call me at t 617-492-3000 for a free consultation.

In the meantime, have a great, safe and a law-abiding weekend!.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/man_cleared_in.html?rss_id=Top+Stories

View the original article here

Continue Reading...

Mattapan Suspect Arraigned In Boston Superior Court For Home Invasion And Drugs But Not Murder- Attorney Sam’s Take

It may take awhile for felony prosecutions to come, but, usually, when the police painstakingly take their time in their investigation, suspects emerge. This is being played out in Boston’s Suffolk Superior Court. Kimani Washington, 35 (hereinafter the “Defendant”), has been arrested in connection with the quadruple homicide in Mattapan in September. He was charged with various charges, including armed robbery, armed carjacking, trafficking cocaine, and being an armed career criminal.

He has pleaded “Not Guilty” and was ordered held on $500,000 cash bail after arraignment in Suffolk Superior Court.

Interestingly, the Defendant was not charged in the actual murders, although the prosecutors allege that he was a mastermind behind the armed home invasion that precipitated the deadly shootings.

Apparently, during the investigation into the murders, police found over 28 grams of crack cocaine allegedly taken during the robbery, as well as two guns. They say that these were found in a location where the Defendant often stayed. The Commonwealth also claims that one of these firearms were fired during the multiple homicide.

The Defendant is not the only one charged in the case. Another man has been actually charged with the murders and are expected in Suffolk Superior Court shortly. Further, another gentleman was arraigned previously arraigned on murder charges and held without bail.

Prosecutors allege that the Defendant and one of his alleged co-perpetrators knew each other from mandatory visits to prison, and that they hatched a plan to rob the location of the homicides of drugs and cash. On the morning of September 28th, the burglary was carried out according to authorities.

The Commonwealth further claims that the Defendant left the house after the robbery, which is when the executions were carried out. Later in the morning, the three men met again to divide the proceeds from the robbery.

I have handled several gun and murder cases over the past 25+ years as attorney in the criminal justice trenches. While there are nuances in every case, fact scenarios generally fall into a few common patterns. This does not mean, however, that the Commonwealth treats them all the same.

In many cases, the Commonwealth would be charging the Defendant with Murder In The First Degree along with his alleged cohorts.

“How, Sam? He left before the shooting ever took place according to the allegations.”

First of all, we do not know how the Commonwealth came to that conclusion. I will come back to why that may be important in a moment.

Understand that, whenever possible, the Commonwealth charges people they believe are acting together as being a conspiracy or, at least, a joint venture. Under either of these theories, each person is responsible for what the other(s) do during the course of whatever was planned.

Even if something foreseeable, if not planned, took place. For example, two guys rob a store and, as leaving, one of them turns and shoots the store owner. The shooting was foreseeable, so both would normally be charged. The applicable law does allow for someone to withdraw from a conspiracy or joint venture, but it requires a good amount of announcements by the “withdrawer” to qualify.

Further, there is apparently evidence that the group met up again after the killing. It would seem, therefore, that the joint enterprise was still in existence at that time.

I find it interesting that this Defendant is being arraigned all on his lonesome and is not charged with the killing. Also, unless there was a video camera going at the scene of the crime, how does the prosecution know who planned what when and who left when? The victims, of course, are dead. Math is not my strong point, but it seems to me that this just leaves the Defendant and company who would be able to tell the Commonwealth these things.

Could it be that the Defendant is now a Commonwealth witness in exchange for not being charged with murder? Obviously, I don’t know. I will tell you, though, that, as a trial attorney, particularly one in criminal practice, I have developed a well-toned a strong case of “professional paranoia”.

It helps. A lot.

Might I suggest that if you find yourself suddenly facing down the barrel of a criminal charge, you look for an experienced criminal defense attorney with that occupational disease? If you want to contact me to discuss such a situation, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, and charming photograph about which parts of this blog were based, please go to : http://www.boston.com/news/local/breaking_news/2011/01/man_held_on_hig.html

View the original article here

Continue Reading...