Criminal cases: “REFUSE TO LOSE”
Through hard work and perseverance, we have won many favorable results for our clients. We won many of those favorable results because we never stopped fighting for our clients — even when we faced setbacks along the road to victory. The cases discussed below represent a small sampling of these kinds of results. We sum up the philosophy underlying this diligence and perseverance as “Refuse to Lose.”
RECENT TRIALS AND POST-TRIAL PROCEEDINGS
Commonwealth v. Client 1. The police began a car chase of client after he allegedly left the scene of a car accident on a street in Roxbury at around 3:00 a.m. During the car chase, the police said that client smashed into 4 parked cars, causing damage to those cars and his own. The police claimed that client jumped out of the car that he was driving, and fled on foot onto a side street. The police claimed that they saw black-colored objects in client’s hand as he was running from them.The police claimed that they pursued client on foot as he jumped into a garden. The police claimed that they struggled with client to take him into custody in the garden and that, during the struggle, client buried a loaded semiautomatic pistol in the garden. (Listen to Cross Examination of Officer Walsh & Listen to Excerpts of Cross Examination of Officer Holden) The client was charged with 12 offenses, 10 of which were submitted to the jury for verdict, including 3 charges related to the alleged carrying of a loaded firearm, 4 charges of Leaving the Scene of Property Damage, Negligent Operation of a Motor Vehicle, and Resisting Arrest. The firearm-related charges subjected client to a minimum, mandatory 18-month sentence in the house of correction. After a trial in June 2014 during which Mr. Booker questioned the police officers involved in client’s arrest, the police canine handler who had been called to the scene to perform a canine search, a fingerprint expert, a ballistics expert, and an investigating detective, the JURY FOUND THE CLIENT NOT GUILTY of 7 of the 10 charges that were tried, including all 3 firearm-related charges and all 4 charges of Leaving the Scene of Property Damage. Mr. Booker had begun representing client in March 2014 and, following the jury’s acquittal of client on 7 of the 10 charges, obtained client’s immediate release from jail on June 4, 2014.
Commonwealth v. Client 2. A senior citizen in Dorchester claimed that client and another man had stolen a $2500 deposit from her in connection with a promise to build a carport for her. The client was charged with Larceny Over $250, a felony. After a jury trial , the jury found the client NOT GUILTY.
Commonwealth v. Client 3. The police claimed that they saw the client pick up a prostitute and engage in sexual conduct with her in a public parking lot during the early morning hours. The client was charged with Sexual Conduct for a Fee. On the date scheduled for trial, the DA’s Office offered to dismiss the case if the client would pay court costs. The client rejected the offer, and chose to take his case to trial. The client waived his right to a jury trial, and elected to have a so-called “bench trial” (meaning, a trial before a judge sitting without a jury). After the DA’s Office rested its case, Mr. Booker moved for a required finding of not guilty, arguing that the DA’s Office had failed to present sufficient evidence to sustain a conviction on the charge. The court agreed, and entered a NOT GUILTY finding.
Commonwealth v. Client 4. The client’s ex-girlfriend claimed that client punched her and choked her during an argument in her apartment while her four-year old son was in the next room. The client was charged with Assault and Battery. On the day of client’s arraignment, Mr. Booker questioned client’s ex-girlfriend in connection with her request for an abuse prevention order (commonly known as a “restraining order”) against the client. Mr. Booker obtained a copy of the recording and transcript of the restraining order hearing, including the ex-girlfriend’s testimony there. Mr. Booker used the transcript of this testimony to demonstrate her lack of credibility during the trial. After trial, the JURY RETURNED A NOT GUILTY verdict.
Commonwealth v. Client 5. The police claimed that they approached client, whom they knew from previous interactions, on a Dorchester street at around 10:00 a.m. on a school day in June. The police claim that, upon their approach, they saw client duck near a parked car, and that they discovered a loaded firearm under that car as client was withdrawing his hand from underneath the car. The client was charged with 3 offenses related to the unlawful carrying of a loaded firearm. After a 2-day trial, the verdict found the client guilty. Mr. Booker filed an appeal for the client. During the appeal, client’s new lawyer (not Mr. Booker) argued that the verdicts should be set aside because the trial should have sustained objections that Mr. Booker made to the prosecutor’s closing argument. The prosecutor during the trial argued falsely that Mr. Booker had suggested that the police were trying to frame the client. The Appeals Court AGREED THAT THE TRIAL COURT MADE AN ERROR BY OVERRULING MR. BOOKER’S OBJECTION. The Appeals Court wrote: “[Mr. Booker] explicitly objected to the framing argument by the prosecutor, stating his objection as follows, ‘[t]here were references to framing, which is not a word that I ever used and it’s not fairly inferable from anything I said, that anybody was trying to frame [my client]. That was highly improper and I object to that.'” As a result, the Appeals Court REVERSED THE JUDGMENTS AND SET ASIDE THE GUILTY VERDICTS.
RECENT DECISIONS ON MOTIONS TO SUPPRESS.
Commonwealth v. Client 6. The police stopped and searched client without a warrant after they saw him enter and, fewer than five minutes later, exit, a building at around 1:00 a.m. The warrantless search turned up a bag of marijuana, 10 pieces of crack cocaine, and $3,000 in cash. The client was charged with Possession With Intent to Distribute a Class B Substance (cocaine). Mr. Booker filed a motion to suppress all evidence that the police seized from the client. After a hearing, during which Mr. Booker questioned the police officer and detective involved in the client’s arrest, the COURT ALLOWED THE MOTION TO SUPPRESS. This meant that the District Attorney’s Office (the “DA’s Office”) could not use any of the suppressed items as evidence against the client, and that the DA’s Office therefore could not continue to prosecute the case.
Commonwealth v. Client 7. The police on a university campus in Boston claimed that the client took them on a high speed chase and assaulted one of them with a dangerous weapon when he drove his car directly at one of them as they tried to block his path of escape. The client was charged with Assault With a Dangerous Weapon (a motor vehicle); Reckless Operation; Unlicensed Operation; and several other offenses. Through the aggressive pursuit of pre-trial discovery (meaning, the pursuit of any and all evidence that tends to establish the client’s innocence or alleged guilt), Mr. Booker learned that the police department used an unfairly suggestive photographic array to obtain a supposed positive eyewitness identification of the client by one of their own police officers. Mr. Booker moved to suppress this identification procedure as unfairly suggestive and therefore a violation of constitutional client’s right to due process. After a hearing, during which Mr. Booker questioned two detectives and a police officer, the court allowed the client’s motion to suppress both the out-of-court identification and ant and all subsequent in-court identifications of the client. The DA’s Office then moved to dismiss all charges.
Commonwealth v. Client 8. The police searched the client and the car that he was sitting in after they supposedly observed a known drug user approach the car, spot the police watching him, and then walk away from the car. The warrantless search turned up several bags of marijuana and $525 in cash. The client was charged with 1 count of Distribution of a Class D Substance; Possession with Intent to Distribute a Class D Substance; and 2 counts of a Drug Violation Near a School or Park (“School Zone charge”). The School Zone charges put client at risk of a minimum mandatory 2-year sentence to the house of correction. Mr. Booker filed a motion to suppress all evidence that the police seized from the client and his car. After a hearing, the COURT ALLOWED THE MOTION TO SUPPRESS. This destroyed the DA’s Office’s case against the client. Mr. Booker also moved for the return to client of his $525 in cash, which the court allowed.
Commonwealth v. Client 9. The police pulled over a car in which the client was a back-seat passenger. This occurred shortly before midnight on a street in Dorchester. The police, citing safety concerns arising from the time of night when the stop occurred and the firearm-related previous arrests of the driver and the front-seat passenger in the car, ordered all occupants out of the car. The police claimed that client’s wallet fell open on the back seat of the car when client exited the car in accordance with their order. The police looked at several debit and credit cards that the police claimed had tumbled out of client’s wallet when it fell on the back seat. These credit cards bore the names of several persons other than client. The police also discovered $901 in cash in or near client’s wallet. The client was charged with 5 counts of Possession of Stolen Credit Cards. Mr. Booker moved to suppress the evidence seized during the warrantless search of client and the car in which he was a passenger. After a hearing, the court ALLOWED THE MOTION TO SUPPRESS. Mr. Booker also moved for the return to client of his $901 in cash, which the court allowed.
Commonwealth v. Client 10.Commonwealth v. Client 10 A state trooper pulled over a car that client was driving because it displayed an expired safety inspection sticker. During the stop, the trooper conducted a warrantless search of client’s backpack, which was on the passenger seat of the car that client was driving. The warrantless search of the client’s backpack turned up pills for which client allegedly could not produce a prescription. The Client was charged with Possession of a Class C Substance. Mr. Booker moved to suppress all evidence that the trooper seized from client and the car that he had been driving. After a hearing, the COURT ALLOWED THE MOTION TO SUPPRESS. This ended the case against the client.
AGGRESSIVE PURSUIT OF DISCOVERY AND SANCTIONS FOR THE DA’S FAILURE TO PRODUCE IT.
Commonwealth v. Client 11. The police stopped client as he was driving on a major avenue in Dorchester. The police searched client and his car without a warrant. The search turned up several containers of alcohol, cocaine, and heroin. The client was charged with Possession of a Class A Substance (heroin) and Possession of a Class B Substance (cocaine). Mr. Booker moved to suppress all evidence that the police seized from client and from his car. On the morning scheduled for the hearing, the DA’s Office represented several times that it expected its police-witness to appear for the hearing. Nonetheless, the witness did not appear. Mr. Booker PERSUADED THE TRIAL COURT TO EXLCUDE THE TESTIMONY OF THIS OFFICER from any future hearing on client’s motion to suppress, as a sanction for the Commonwelth’s failure to show good cause for the witness’s failure to appear. Because the DA’s Office could not establish a legal justification for the stop and the seizure of evidence without this witness’s testimony, the DA’s Office moved to dismiss all charges against the client.
Commonwealth v. Client 12. The police arrested and searched client without a warrant on street in Roxbury. The police claimed that client was having a loud argument with a woman and thereby disturbing the peace. After the police placed client under arrest, they searched him and found 6 pieces of crack cocaine. The client was charged with Possession with Intent to Distribute a Class B Substance (cocaine) and Disturbing the Peace. Mr. Booker filed a motion to suppress all evidence seized from the client. Mr. Booker interviewed and summonsed to court 3 of client’s neighbors — who were involved in an outdoor party near the scene of client’s arrest — to testify whether they believed that client had disturbed the peace. On the date scheduled for the suppression hearing, client’s 3 neighbors appeared in court ready to testify. The police officers involved in client’s arrest, who were the DA’s Office’s witnesses, did not appear to testify. Mr. Booker moved that the court allow the client’s motion to suppress as a sanction for the failure of the police to appear at the hearing. The court ALLOWED MR. BOOKER’S MOTION AND ALLOWED THE CLIENT’S MOTION TO SUPPRESS, EFFECTIVELY ENDING THE CASE AGAINST THE CLIENT.
Commonwealth v. Client 13. The police arrested the client based upon an arrest or “straight” warrant for Assault with a Dangerous Weapon and Trespassing. During the close review of pre-trial discovery that the DA’s Office produced, Mr. Booker noticed that the principal complaining witness in the case had had email communications with the DA’s Office concerning the identification of the client and other matters that tended to establish or negate client’s guilt in the case (and which therefore required the DA’s Office to produce copies of the email communications to the defendant in the case). Mr. Booker wrote several letters to the DA’s Office demanding the production of copies of the email communications. The DA’s Office failed to respond to these demand. Mr. Booker thereafter moved to dismiss the case as a sanction for the DA’s Office’s failure to produce this mandatory discovery. After a hearing, during which Mr. Booker provided the court with copies of his letters to the DA’s Office, the court DISMISSED THE CASE against the client.
Commonwealth v. Client 14. The MBTA police stopped client for making unauthorized use of a student pass to enter a subway station. During the stop, the police made a warrantless arrest and search of client, including a wallet that he was carrying. Inside the wallet, the police found a small packet of heroin. The client was charged with Possession of a Class A Substance (heroin). Mr. Booker moved to suppress all evidence that the police seized from the client. After a hearing on the motion, the court denied the motion to suppress. Mr. Booker then filed an appeal asking the Massachusetts Appeals Court to review the lower court’s denial of client’s motion to suppress. The Appeals Court refused to consider the appeal until the entire case came to a close in the trial court. So, Mr. Booker continued to defend the case aggressively in the trial court. Among other things, Mr. Booker demonstrated to the trial court that the DA’s Office had failed to produce pre-trial discovery as required by law. As a result, the trial court ALLOWED Mr. Booker’s MOTION TO DISMISS as a sanction for the DA’s Office’s discovery failures.