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Interesting decision today by the SJC.  Here are some notable quotes from the case of City of Boston v. Boston Police Patrolmen’s Assoc. (SJC 12077) regarding use of force and the Boston Police Department:

  1. Regarding chokeholds: “If anything, it is the unpredictable dangerousness of choke holds that warns against their use at all.”
  2. On the delay of investigating officer misconduct:  “Officers deserve notice of allegations against them, and citizens deserve investigations not contingent on the filing of Federal lawsuits.”
  3. On the issue of review: “Last, we are troubled by the prospect that any use of force not explicitly prohibited by a rule of conduct is essentially unreviewable. It is difficult to fathom why we elevate the values of “expediency” and “judicial economy” so high as to eclipse the substantive rights of citizens who have no seat at the bargaining table.”

 

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I had one of those very rare experiences.  I received a decision from a Superior Court Judge regarding a Motion to Dismiss a Murder Indictment.  I was thrilled to see the Court allowed my motion.  What is exceedingly rare, on the following day, another Superior Court Judge in a different county allowed my Motion to Dismiss a Murder Indictment.  Two murder indictments dismissed on two very different grounds but both equally correct on the law. Two innocent men are now free.  It is always exciting to be part of bringing justice to light.

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At this time of year and as the New Year quickly approaches, I think of my clients and their families; of my successes;  and of those that still need their battles to continue.  The fight goes on.

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It was a pleasant surprise to receive an email with the subject line “Congratulations”.  I had just finished a trial that resulted in a ‘not guilty’ verdict.  Often times I am the sole person in the courtroom for the defendant as all the prosecutors from the courthouse enter to listen to the verdict.  So it was nice to hear the words ‘not guilty’.  That evening as I checked my email, I did not understand who was in the courtroom to send me congratulations.  As it turns out, a member of the court staff was present for the entire trial.  Unbeknownst to me, he related to his spouse the details of the case.  That attorney, who is known to me by reputation only, sent me an email repeating her spouse’s kind words of my trial skills. It was nice to receive such an unexpected compliment.

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Today was an interesting day.  I ‘clicked’ on a site and as a result received a phone call.  It all started when someone contacted me about a lawyer that was appointed to represent her relative.  I thought he was a good lawyer, hard worker, smart and I said so.  The person countered with she looked him up on the web and his rating was not high.  Of course out of curiosity, I did the same thing.  Then I thought – hey what is my rating. For the next hour or so, I began to ‘edit’ my profile on line.  After all this site was supposed to be objective and if I put in all the info about myself my rating should go up. I have tried lots of cases, won lots of cases, received recognition but the rating barely moved.  I even looked at other lawyers on the list – good lawyers but truth be told, I think I am better and have more experience. On one list I saw someone that had a problem with an ethical violation and this person had a high rating.  So when I received a call because I ‘clicked’ on a website, I kindly declined explaining that I had a problem with their system of rating lawyers. For now, I will let my clients and other attorneys refer me to new clients and I will not ‘pay’ for the top rating.

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It is nice to step out of the box sometimes.  That happened many months ago, when a colleague asked me if I would represent someone (pro bono).  The cause struck home and I said yes.  Here is what followed:

On September 8, 2014, I along with co-counsel were prepared to go to trial in the Fall River District Court. About 100 people showed up in solidarity to my clients. Instead of beginning the trial, Bristol County District Attorney dismissed or nolle prosequi all criminal charges against Jay O’Hara and Ken Ward arising from the Lobster Boat Blockade www.lobsterboatblockade.org. The charges resulted from the actions of May 15, 2013, when O’Hara and Ward anchored their lobster boat, the Henry David T, in the Brayton Point Ship Channel near the Brayton Point Power Plant pier to protest the burning of coal. Ward and O’Hara’s purpose: to block the Energy Enterprise from unloading 40,000 tons of coal. As a result, they were charged with felony conspiracy, three misdemeanors (disorderly conduct, failure to act to avoid a boat collision and negligent operation of a boat endangering safety). We were prepared to bring forward a necessity defense to show that O’Hara and Ward’s actions were legally justified because of the dire harm from global warming. Climate scientist Dr. James Hansen and author-activist Bill McKibben were prepared to testify as expert witnesses. Today was to be the first day of the trial but instead the State dismissed all criminal charges and entered an agreement with O’Hara and Ward to treat the matter as a civil infraction with $2000 of restitution to be paid by each defendant to the Somerset Police Department.

It was the right thing to do.

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Another strange experience.  I received a call from an attorney that represents my client on an appeal from a trial that we unfortunately lost.  The brief on the appeal was due in several days.  The appellate attorney called me to ask what issues I thought should be appealed.  A very common question.  I told the attorney the Court’s rulings that I believed were wrong – allowing evidence before the jury that should not have been admitted – and hopefully if I was right and the appeal was successful, the case would  be overturned.  The lawyer dismissed my opinion with the words “the evidence was overwhelming” and he saw no appellate issues. I was taken aback – I truly believed that the judge made mistakes that resulted in a wrongful conviction.  Maybe appellate counsel will change his mind.

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I had an interesting experience in Superior Court not too long ago.  The prosecution was attempting to have my client’s bail revoked so that he would be taken into custody awaiting trial.  Instead of arguing the legal issues, the prosecutor wanted the Court to assume a conversation that may have taken place between my client and me.  It was a very strange experience.  The prosecutor, in his attempt to tell the judge that I must have instructed my client on an issue, kept saying to the Court that “Ms. Fund is a competent lawyer and must have told her client ……”  I finally interrupted – after all it was a ridiculous argument and the prosecutor wanted to infringe on attorney-client privilege. The argument ended with the Judge saying to the prosecutor “I agree Ms. Fund is a competent attorney, in fact I would say she is a quite competent attorney but that is not the issue.”  Thankfully the Court ruled in my client’s favor.  But it was a very surreal experience.

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After my last encounter with a jury trial, there was trepidation with my next case. Will the jury follow the law.  Will the jury hear the evidence. Will the jury return a true and just verdict.  Will the jury speak the truth.  It was a battle but not for the jury. The verdict came back in less than 15 minutes: Not Guilty.  The system worked this time.

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The Supreme Judicial Court recently came out with a decision in Commonwealth v. Keo.  The decision really struck home.  I had just tried a murder case.  Everyone who observed the trial was sure my client would be found not guilty by the jury.  The reasonable doubt was palpable.  No one expected – certainly not me or my client – the jury to find him guilty.  But they did.  I rarely give comments to the press.  This time I did.  I told the reporter that it was a travesty of justice.  That the jury sent an innocent man to prison.  I could not understand why.

Reading the decision in Commonwealth v. Keo resonated with me.  It was a joint venture case and so was mine.  The Court quoted one of my favorites:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.  He may prosecute with earnestness and vigor — indeed, he should do so.  But, while he may strike hard blows, he is not at liberty to strike foul ones.  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 (1935).

Unfortunately the Court did not overturn the case (it was a 4-3 decision) but the dissent was right on point:  “To affirm this conviction without first remanding it is to affirm that the truth does not matter in criminal trials, that a prosecutor who lacks an “innocent explanation” may, without consequence, argue in one trial that one codefendant is the shooter where that theory will more easily lead to that codefendant’s conviction and, in another trial, argue that a different codefendant is the shooter where that approach offers an easier path to securing a conviction.  In short, I am convinced that affirming this conviction without first remanding it “would not only invite abuse and sharp practice [by prosecutors] but would also weaken confidence in the justice system itself by denying the function of trials as truth-seeking proceedings.” SJC‑10949.

That is what happened in my case.  The prosecutor argued something contradictory to what was known to be true and what was argued in the co-defendant’s trial.

So an innocent man sits in prison while I file motions and an appeal in the hope that justice will prevail.

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I was looking at a colleague’s website.  It was very impressive.  The list of crimes he was an expert in was mind boggling.  He listed how he was a former prosecutor.  He listed all the District Court cases that he got dismissed. Good for him. But I wondered if he ever tried a case. I did not see one not guilty.  I wondered what happens to all those cases that he does not get dismissed.  Does he try them?  Does he plead his clients to time in jail or prison?

Unfortunately a fancy website does not win trials. It may impress a potential client and yes, he may get hired.  But when it comes to trying the case, his client comes to me.  I try cases. And I get the not guilty.

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I spent the waning days of spring trying a first degree murder case.  From the start, my client told me that he did not do the shooting.  Do not even try to negotiate with the prosecutors, he said, I am innocent.  So to trial we went.  The prosecutors – yes more than one (at times 3) against a lone defense attorney – dug in their heels.  You see they made a mistake at the start.  The prosecution believed the wrong people; the people that lied so they would not be charged with murder.  I tried to tell them at the start of the case.  They would not hear me.  Luckily a jury did.

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Sometimes the system doesn’t work.  When you believe that the evidence does not amount to guilt beyond a reasonable doubt, you question why.  If not the evidence, then what?

I am reminded of the words of Thomas Paine.  “An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty, he establishes a precedent that will reach to himself.”

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I just finished a three-week trial in the Superior Court.  My client was found not guilty of all charges – two counts of armed assault with intent to murder; two counts of assault with a dangerous weapon; possession of a firearm; possession of ammunition and possession of a loaded firearm.  From the start, I believed this was a ‘triable’ case and my client proclaimed his innocence so to trial we went.

After the first day of testimony one of the members of the court said “Is your guy taking a plea tomorrow?  I know the juries in this county and this was a very bad day for you.”  I was surprised.  I thought the day went rather well.

By the end of the trial, my investigator was told by one of the detectives “This is a slam dunk for the Commonwealth.”  Again, I was surprised.  I did not think so.

The jury deliberated for several days.  I was told it was probably one hold out for a not guilty.  I did not think so.

The jury continued to deliberate.  I was told this would be a mistrial and when would I be available to retry the case.  Again, I did not think so.  I had faith in the jury.

That faith paid off.  An innocent man was exonerated.  Justice was served.

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It’s nice to take on the big boys and win.  Several months ago I became involved in a civil action.  Opposing counsel was a member of a very large, high end law firm.  The type of law firm whose office is on multiple floors with several large conference rooms filled with mahogany tables and all with spectacular views of the skyline.  I was in a battle – a battle that required determination, boldness in response to their attempted intimidation and skilled trial advocacy; a battle that was for the individual’s rights; a battle that I could not lose.

Like I said, it is nice to take on the big boys and win.

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Today I had the pleasure, and I use that word sarcastically, to spend part of my morning in Probate and Family Court.  It is a courtroom (court personnel excluded) filled with unhappy and venomous people whose only goal is to make people as miserable as they are.  It is also amazing how an attorney can take on the role of the client with the same demeanor, outlook and animus.  I was happy to escape those environs unscathed.  Unfortunately I will return and continue to do battle always knowing that those embittered people will be there but they will not prevail.

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Last week, I spent one  morning in Court examining  a witness.  I had subpoenaed some information and I was told the information did not exist.  Luckily I was allowed to question the president of the business only to learn that no one ever checked for the requested information.  The head of the business  assumed it did not exist.  No one searched emails, back up data, file folders.  I was surprised.  In our system of justice, if you receive a subpoena you are supposed to at least look for what was asked.  As it turned out, when the president went back to the business, indeed the information I had sought was found. It was a good lesson to learn.

I juxtapose that experience with a story my friend told me today.  Her son and she were talking about Roger Clemens and what it means to commit perjury.  The college aged young man was surprised that anyone would lie under oath.  To lie if you are trying to get out of trouble with your parents is one thing but to do so under oath was abhorrent.  There is no excuse for lying under oath, he said.

It is the belief and conviction of this young man that keeps my faith  in the justice system.

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I was in Court yesterday and it was one of those frustrating days.  It was not because of the Judge or the prosecution.  But it was because of a fellow member of the defense bar.  I had taken great care to bring a motion that alerted the Court and everyone in the courtroom to what I believed was misconduct of the prosecution.  After doing so, I was taken aside by another attorney.  Instead of being outraged by the conduct that was described, he told me not to mention the words “prosecutorial misconduct” again, to take a different approach and to make sure I know the facts.

I was dumbfounded.  You see as a defense attorney you are often alone in a courtroom among a sea of law enforcement officials and prosecutors.  But you expect those who battle for the rights of the individual to stand shoulder to shoulder with you.  In this Court, I realized that I stood alone for my client’s rights and the injustice that was being perpetrated against him.  I realized that what I did, what I said, what I brought to the attention of the Judge and all those around me, was important not only for my client but all those whose voices must be heard.

I know the facts.  I will continue to stand up for what is right.

“…there is one way in this country in which all men are created equal – there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution ..is a court.”   Harper Lee, To Kill a Mockingbird

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Last Thursday I was sitting in Court waiting to argue before the Judge.  I was thinking about what it means to be the voice of my client.

When an accused stands before the Court he needs an attorney to pull out all the stops for his case – within the code of ethics of course.  He wants to see the passion of someone that really cares about whether he wins or loses; whether he ends up in jail or walks out of the courtroom.

I was thinking how we lawyers sit inside the bar while our clients sit outside this ‘inner circle.’   How often times you see members of the bar joking around as if the weight of their clients’ cases don’t weigh heavily on their shoulders.  I know I feel the weight of my clients’ cases.

G.K. Chesterton once wrote about the judicial system that “…it is a terrible business to mark a man out for the vengeance of men. But it is a thing to which a man can grow accustomed, as he can to other terrible things; he can even grow accustomed to the sun. And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”  I see my client and I see the Court through his eyes.  I am his voice.  I make sure that the voice of the accused is heard.

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