O'Brien Law Boston

Criminal Defense Blog

Speedy Trial: A Guaranteed Right Or An “Either/Or” Choice?

DECEMBER 23, 2013

On December 5, 2013, the Massachusetts Supreme Judicial Court (SJC) heard oral arguments in Commonwealth v. Taylor, a criminal case that seeks a balance between a defendant’s right to a speedy trial and his right to receive “automatic discovery” from the prosecution.

In addition to a criminal defendant’s right to a speedy trial under the Sixth Amendment to the United States Constitution, Massachusetts Rules of Criminal Procedure Rule 36 provides that a criminal defendant must be brought to trial within twelve months of the date of his arraignment. Under the rule, some specific periods are excludable from the total calculation of the twelve months. If this right is violated, then the defendant is entitled to a dismissal of the criminal charges against him in the case.

The Massachusetts rules also require that the prosecution automatically turn over to defense counsel certain items and information that are relevant and material to the prosecution’s case or to the defendant’s potential defenses. Such information and items include witness statements, statements by the defendant, and other evidence collected by the prosecution in connection with the charges against the defendant.

In Taylor, the defendant was arraigned on murder charges in Suffolk Superior Court in August 2006. By the fall of 2006, the prosecution still had not turned over critical evidence that fell within the mandatory automatic discovery provisions of the Massachusetts rules. That evidence included a recording of the police interrogation of the defendant and statements by a chief witness (who the defendant claimed was actually responsible for the alleged murder), as well as seventeen audio recordings of police interviews conducted in May 2006 and the audio and transcripts of eleven witnesses who testified before a grand jury. Although the court ordered the prosecutor to produce the missing automatic discovery items, the prosecutor did not timely do so, and requested additional time. Defense counsel made clear to the prosecution and the court that, notwithstanding the prosecution’s request for more time to comply with its mandatory discovery obligations, the defendant was not waiving his right to a speedy trial. The court granted the prosecution additional time, but noted that “Rule 36 will not be waived from this date until the time of compliance.”

Computer Breach Likely in Convention Credit Card Theft Case

DECEMBER 20, 2013

This fall, hundreds of attendees at conventions in Boston fell victim to credit card theft. However, police now think that there could be many more victims throughout the city.

According to Boston Police Detective Steven Blair, the thefts are more widespread than previously thought and people who did not attend the conventions at the Boston Convention & Exhibition Center in October and November could also be victims.

The new information comes after interviews with credit card companies. Blair said that there could be hundreds more victims. This is in addition to the hundreds who have already reported fraudulent and unauthorized charges to their credit cards after visits to Boston.

At present, there have been about 300 people who have reported compromised credit cards after attended the American Society of Genetics meeting and the American Public Health meeting, held in October and November respectively.

Although police remain unsure as to how the thefts were carried out, the thieves most likely hacked into a computer system to capture the data. There has not been a breach found at the convention center, adjacent hotel, or the local restaurants and bars. The Massachusetts Convention Center Authority announced that the thefts did not occur in the facility to reassure convention planner scheduled to meet in January. Some employees of the authority were also victims.

After the convention in Boston, victims of the theft reported their credit cards being used around the United States in clothing stores, drug stores, and other retailers to buy gift cards. The gift cards are able to be resold for cash.

The victims reported that they used their credit cards mostly in nearby restaurants and businesses, including M.J. O’Connors and City Bar. Both of these establishments are located in the Westin Boston Waterfront Hotel. The Briar Group owns both restaurants, and reports that its security consultants are yet to find any problems in their systems. Similarly, the Westin has also been unable to find any breaches of security.

The state attorney general and US Secret Service are also investigating the theft. Boston Police have reached out to major credit card companies, and with their help are retracing the steps of the potential victims and pinpointing locations where the cards were used.

BPD Officer Accused of Pointing Gun at People while Off-Duty

DECEMBER 13, 2013

A Boston Police Officer has been accused of pointing her pistol at two people while off duty in Roxbury. His fellow Boston Police Officers arrested Officer Sandro Fonseca on Wednesday night after his .380 caliber pistol with laser sight fell from his waistband.

Fonseca was arraigned on Thursday in Roxbury Municipal court. He has pled not guilty to all charges. Bail has been set at $5,000 cash. Fonseca previously was in the Marine Reserves for six years, beginning in 2002. He served as a rifleman and ended his career as a sergeant, spending some of his time serving in Fallujah.

Attorney Kenneth Anderson is representing Fonseca, and noted that Fonseca saved his partner’s life this past summer during a gunfire exchange in South Boston.

Fonseca’s partner as well as Officer Ronald McGillvary, who serves as vice president of the Boston Police Patrolmen’s Association, attended the arraignment.

According to Anderson, Fonseca was intoxicated when the incident occurred, and he still could smell alcohol on his client at their meeting, which occurred 12 hours later.

The report filed in court says that police responded to 66 Forest St. They were to question three men following claims by a neighbor that they had attempted to rob her and her disabled fiancé, threatening them with a handgun that had laser sight. The police surrounded the building, and officers on the scene saw the three men looking out of a window on the first floor.

After repeated requests from the officers, the three men finally came out from the building, with Fonseca leading. He had a police radio in one hand and was mumbling incoherently to one of the officers.

Officer Ward then pat risked Foseca, and felt the object on his waistband, which fell. Upon seeing that it was a gun, Ward pushed the suspect off to other nearby officers, who secured him. The other two men, Alides Foseca and David Fenandes, were also taken into custody. Fernandes had to be arrested using force.

Mikia Steed informed officer that her fiancé was coming home from a store nearby when the three men confronted him, one of whom had a pistol with laser sight. The man with the pistol pointed it at her fiancé’s face. Then, when Steed confronted the men, the armed man pointed the gun at her.

The other men told her the armed man was drunk, and that she and her fiancé should ignore the whole scene. However, Steed called police and both she and her fiancé identified the armed man as Fonseca.

The Boston Police Department’s Anti-Corruption Unit is investigating the incident. Fonseca has been put on an administrative with pay pending the results of the investigation. He has been with the BPD for five years.

The Basics of Massachusetts Bail Laws

DECEMBER 10, 2013

A clerk, assistant clerk or judge sets Massachusetts’s bail. When a clerk or assistant clerk is setting bail it is done following the person’s arrest, when they are being held at a police station or jail, and before the person’s arraignment on the pending criminal charges. Judges will set bail following the arraignment and usually after the assistant district attorney requests it. They can set bail without the request being made as well. Bail is meant to ensure that the defendant will show up for their future court appearances. The particular amount is set based on a number of factors, including their connection to the community, their criminal history, flight risk, the nature of the case, past defaults and the safety risk to the community. Courts will also look into any other current pending cases against the defendant.

The amount bail is set at can vary greatly. Bail can be as low as $50 or a judge can choose to hold someone without setting bail, which tends to happen in cases involving very violent crimes. A judge can also hold a defendant without bail if the crime has a considerable mandatory minimum sentence, especially if the defendant is not a US citizen. Bail orders are often appealed to the superior court if the defendant is unable to pay, and further appellate rights exist for bail that a defendant wants to challenge. However, these appellate rights are not used often and are rarely met with success.

In rare cases, a judge will set bail with certain conditions that are out of the ordinary but do not often get reversed. For instance, a judge could set bail and revoke a defendant’s right to use a cell phone, place the defendant under house arrest or require the defendant to wear an electronic monitoring device. In these cases, if conditions are not reversed a defendant must either accept them or chose to remain in jail until his or her trial.

Most of these conditions regarding bail come with sex crimes. Nearly all defendants who have been charged with committing a sex crime and can post bail are required to wear an electronic monitoring device. While out on bail, defendants are usually prohibited from being within a specified distance from schools, playgrounds and parks. This can be very difficult for defendants who live in large cities, such as Boston, as the distance is often as much as 500 feet. Because of this, once the defendant is released on bail our criminal defense lawyers work to ensure that the defendant is able to work and live in areas that could be a violation of these conditions.

Teen Accused of Fatal Hit-and-Run Pleads Not Guilty

NOVEMBER 22, 2013

Last month, Eric Megna allegedly struck and killed a man who was riding his bicycle. The incident occurred at night on an unlit street, and Megna then attempted to cover it up, according to the Plymouth County prosecutor.

Megna is currently a freshman studying engineering at the University of Massachusetts Dartmouth. He pleaded not guilty at the arraignment, which took place at Wareham District Court. The family of the victim, Michael Dutra, had to be ordered to the leave the courtroom because of their emotional state. Dutra was 58, and the father of two children.

Megna was released on $10,000 cash bail. He has been charged with leaving the scene of a fatal motor vehicle crash, and his next court appearance is scheduled for January 8th.

Authorities found that Megna left the scene of the accident, which occurred at approximately 7pm on October 11th in Middleborough, Massachusetts. He then drove to Lincoln, New Hampshire. Three days later, he called New Hampshire state troopers and reported that a deer hit his 2006 Jeep Grand Cherokee while he was driving on the Interstate 93 in Woodstock, New Hampshire.

Troopers arrived on the scene an hour after Megna’s call. Megna told them that a passerby had taken the deer. The troopers did not find any vehicle debris at the site, and there was no deer fur on the vehicle.

Megna attempted to strengthen his alibi by emailing a picture of a deer to his mother as evidence of the accident. However, the prosecutor Matthew Libby said that the photo he sent was actually taken from an old posting on a website for pictures of road kill.

Furthermore, paint and debris from the accident in Middleborough match Megna’s car. The police also have emails from the defedant’s father, Paul Megna, sent to the defendant’s mother, Stephanie Saniuk. In the email Paul Megna says he is concerned because of a cellphone call his son made to his mother from south of Boston when he said he was in New Hampshire. In addition, state troopers overhead a conversation at the father’s apartment in Medford when approaching with a warrant. They heard a man telling someone to keep his mouth shut and that the police couldn’t prove who was driving the car.

The authorities also tracked Megna’s trip, starting at UMass Dartmouth, then to where he lives in Middleborough and finally to New Hampshire that night. However, the defense argued that the investigation was inaccurate due to the timeline and amount of travel involved.

During the hearing, the victim’s family shouted, crying and holding each other. They were then removed from court, and not allowed to re-enter until later in the hearing.

Steven Dutra, Michael’s brother, is most upset that Megna allegedly failed to help the injured victim, and left him there.

Boston University sees Decrease in Crime

NOVEMBER 1, 2013

In 2012, Boston University’s Charles River Campus saw a slight decrease in crime. However, there was a large increase in violations for on-campus liquor and drug violations. Arrests for these violations did not increase, but the number of violations shot up nearly 30% of the year before.

The information was released as part of the annual report that must be released under the Clery Act. The Act passed back in 1990 and makes is so that colleges and universities in federal financial aid programs must release information on campus crime. It’s created using Boston University Police Department records, as well as those from other campus departments and neighboring police in Boston, Cambridge and Brookline.

The number of instances of aggravated assault more than doubled- there was only four incidents in 2011 and nine in 2012. Two-thirds of these cases happened on public property that neighbors the campus. There was also an increase of reported forcible sex offenses, up to 10 from 9 the previous year.

On a positive note, the number of burglaries and robberies fell drastically. BUPD reported only 46 burglaries in 2012, much less than the 63 reported in 2011. There were also only 4 robberies reported on campus and public property in 2012, down from 13 the year before. This number does not include a robbery spree last fall that lasted about two weeks and put BU students on edge- most of those did not occur on the campus or abutting public property. Therefore, reporting them is not required under the Clery Act.

That’s also true for larceny, which is defined as theft of personal property without force. Because of this, the 76 bicycles reported stolen in 2012 are not reported either. Bike theft is expected to rise this year, although it was previously decreasing for several years.

BUPD also reports on hate crimes as of 2011, when 4 crimes were reported. These crimes are usually committed using social media, and 2012 saw two incidents reported. In these cases, students were targeted based on their sexual orientation and national origin.

Fires were also up this year, to 11 incidents from 8 the year prior. Most fires were related to cooking in residences, and the damage was under $1,000 in each case.

BU’s Medical Campus saw much more crime this year, with incidents almost doubling from 6 in 2011 to 11 in 2012. There were four arrests for drug violations that occurred on public property, as opposed to a single incident in 2011. There were also two cases of motor vehicle theft, a sharp contrast with zero the year before.

BUPD Sergeant Daniel Healy stressed that the increases may be more due to differences in reporting by the police than increases in local crime.