Good afternoon. I’m Boston criminal defense attorney Ben Urbelis, and I am going to be doing a video blog, providing updates on the Aaron Hernandez first-degree murder trial that’s currently underway. I’ve already received a lot of questions from people about different aspects of the trial that just started yesterday, so I’m here to break it down and simplify it as much as possible and also provide my own take on what I’ve seen.

Yesterday, both sides provided opening statements. Opening statements are not evidence, and the judge explained that to the jury. Opening statements are a chance for each side to provide a roadmap and lay out what their theory of the case is and what they expect the evidence to show. In all criminal cases the burden of proof beyond a reasonable doubt is on the prosecution, and since they have the burden, the prosecution is required to provide an opening statement first.

The opening statement for the prosecution was provided by Assistant District Attorney (ADA) Patrick Bomberg. He started out by painting a picture of Odin Lloyd as a hard-working family man from Boston. This is nothing unique – the prosecution, of course, wants the jury to feel as much sympathy for the victim and his family as possible. What I was looking for from the beginning, however, was a theme or theory of the case. Not only did I not see that at the beginning of the prosecution’s opening, but I didn’t see it anywhere in their entire opening statement. ADA Bomberg went from talking about Odin Lloyd as a person, to jumping into text messages between Odin and Aaron Hernandez, to talking about the other people who were allegedly present at the crime scene on the night in question, to getting straight into all of the facts that the prosecution intended to prove, along with the evidence they would intend to show the jury in the form of forensics, cell phone records, video surveillance, receipts, GPS tracking of the defendants vehicle, etc.

It was clear that ADA Bomberg had a strong grasp on all of the evidence that he would intend to show the jury during the course of the trial, down to the very last minute. He had a very strong command of the defendant’s every move both before he allegedly committed the murder and after he allegedly covered it up. Based upon the prosecutors opening statement, we can expect this trial to be filled with significant, detailed circumstantial evidence.

Now I’ve heard people say that the evidence is so strong, therefore it’s direct evidence. The strongest evidence is not necessarily direct evidence. Let me give you an example. One morning you’re lying in bed and your six-year-old daughter runs up the stairs and hands you the newspaper and says ‘mommy or daddy here’s the paper that I know you want to read, the paper boy just came to the door and handed me this newspaper to give to you.’ Your daughter’s statement that the paperboy handed her that newspaper is direct evidence that the paperboy delivered a newspaper. She saw him, he handed her the paper, she brought it to you and told you that’s what happened. Now let’s say you walk downstairs in the morning, go to the front door, walk out go to your mailbox, and there’s a newspaper there in the mailbox waiting for you. That is circumstantial evidence that the paperboy delivered the paper to your house. It’s not direct evidence because no one specifically saw or heard the paperboy come and deliver the paper. But based upon the fact that you know your paper boy delivers the paper every morning before you get up, and when you went out this particular morning there was a paper in the mailbox, you can come to the reasonable conclusion, based upon the circumstantial evidence, that the paperboy delivered your newspaper that morning.
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This week, Massachusetts highest court – the Supreme Judicial Court – exercised its power in Commonwealth v. Russell to require a uniform instruction on “proof beyond a reasonable doubt.” In a criminal case, the Constitution requires the government to prove the defendant’s guilt beyond a reasonable doubt. At the end of a trial, before a jury deliberates whether the defendant is “guilty” or “not guilty,” the judge reads to the jury “jury instructions,” which are a set of legal rules the jury must follow when deciding the case. One of the instructions is the explanation of what it means to find an accused guilty beyond a reasonable doubt.

During the past century, there have been two main jury instructions on reasonable doubt given: one is called the “Webster charge” and the other is called “Instruction 21.” There are varying versions of the two instructions, but the instructions usually stem from one or the other or both.

The Webster version originated in 1850, in Commonwealth v. Webster, and informs the jury that reasonable doubt exists when “they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.” For over a hundred and fifty years this has been the “gold standard” of reasonable doubt jury instructions. There has been criticism of this version for being a bit outdated and unclear with its “moral certainty” language. “Instruction 21” originated in 1998 in the Federal Judicial Center’s Pattern Criminal Jury Instructions and informs the jury that “[p]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.”

Before Russell, there were no particular words a Massachusetts judge had to use when giving a jury instruction on reasonable doubt – as long as the jury instruction satisfied constitutional due process. The lower trial court judge in Russell used a jury instruction that was closer to Instruction 21 than to the Webster charge, which permitted a conviction if the jury was “firmly convinced” of the Defendant’s guilt. The Defendant appealed, and his criminal defense attorney argued that this instruction was not adequate and violated his Constitutional rights.
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Last week, a former Middlesex County, Massachusetts prosecutor has been indicted after allegedly supplying his drug dealer with confidential information in exchange for prescription ocycodone pills. Stephen M. Gilpatric, 35, served as a Middlesex assistant district attorney for 7 years, until this past October when the Attorney General’s Office began investigating his conduct. Ironically, Gilpatric’s most recent work was on public corruption, white-collar crime and major narcotic cases.

Gilpatric allegedly gave his drug dealer personal information about another man – including his probation record, police report, and a photograph – in exchange for oxycodone pills. He also provided the drug dealer and the drug dealer’s brother a confidential drug ring organizational chart and a criminal record in anticipation of receiving more oxycodone pills. Oxycodone is a prescription drug prescribed to treat moderate to severe pain, oftentimes after surgery. Oxycodone is an opiate, like heroin, and can be highly addictive. It is commonly known by the commercial name Oxycontin or the street name “oxycotton.”

Gilpatric is also accused of taking $1,500 from a mother who wanted her son’s commercial driver’s license reinstated after it had been revoked in a criminal case. Gilpatric was indicted by a Statewide Grand Jury on the following charges: unlawful gratuity, unlawfully communicating criminal offender record information and receiving unlawful compensation. Unlawful gratuity and receiving unlawful compensation hold a maximum prison sentence of 5 years each, and unlawfully communicating criminal offender record information holds a maximum jail sentence of one year.
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Massachusetts Rules of Evidence are very important when it comes to winning a criminal trial. On Friday, December 19th, Superior Court Judge Garsh ruled that text messages sent from Odin Lloyd minutes before he was shot and killed cannot be shown to the jury during New England Patriot Aaron Hernandez’s first-degree murder trial.

The text messages were sent from Lloyd right before his death to his sister: “U saw who I was with … NFL … Just so U know.” These text messages are hearsay and generally inadmissible as evidence (explained below). The prosecution wished to present these text messages as evidence that Lloyd knew he was about to die and who was going to kill him. A “dying declaration” is an exception to the ban on hearsay (explained below). The prosecution’s theory is that Hernandez killed Lloyd because he knew too much about a 2012 double-murder that Hernandez has recently been charged with as well. Judge Garsh, however, ruled that the messages did not suggest Lloyd feared for his life, there was no credible basis for linking Lloyd’s killing with the double-murder, and the prosecution’s argument was speculative. The defense considers this a huge victory.

Rules of evidence govern whether and for what purpose proof of a legal case may be placed before a trier of fact (usually a jury) for consideration.

1- Hearsay
In general, hearsay is not admissible as evidence. Hearsay is an out-of-court statement introduced to prove the truth of the matter stated. To put it more simply, hearsay is the report of another person by a witness. Hearsay is generally not allowed to be introduced as evidence because it is unreliable. Think of the “telephone game” you played as a kid. The first person says something and by the end of the game the person’s words are totally different. That’s the reason hearsay is generally inadmissible. There are many exceptions to the hearsay rule where the out-of-court statement can be introduced as evidence. The exceptions have been created because certain out-of-court statements are usually more reliable. One of them is called a “dying declaration.”
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Yesterday, Ross Currier, a Boston man, was cleared of sexual assault charges in the North End. Suffolk County prosecutors entered a nolle prosequi, which resulted in the termination of the charges of assault and battery, which carries a maximum penalty of 2 years in the House of Corrections, and indecent assault and battery, which carries a maximum penalty of 5 years in the House of Corrections, that Currier had been facing stemming from an incident that occurred on February 15, 2014.

On February 15, 2014, a woman told police that she was approached from behind earlier that morning outside her North End apartment by a man who then threw her to the ground, groped her body and private areas, and took a picture under her skirt with his cellphone. Police arrested Currier on March 10 after the same woman saw him in the neighborhood and told police officers that she was “90 to 95% positive” that he was the man who attacked her. Not only did Currier have an alibi, stating that he was at home with his fiancee at the time of the woman’s attack, but the same woman had already previously misidentified another man as her attacker. The other man was incarcerated at the time of the attack and could not have possibly committed the crime.

District Attorney Daniel F. Conley’s office said in a statement Wednesday that while prosecutors do believe the woman acted in good faith when she identified Currier, investigators later “developed evidence to suggest he was not the assailant.” That evidence included a detailed review of Currier’s alibi, a forensic investigation of his cellphone and an investigation of related cell tower location records.

The Massachusetts Supreme Judicial Court recently ruled that a law used to charge an Andover man, Michael Robertson, with taking up-skirt photos of women in 2010 did not apply in the case because the women did not have any expectation of privacy in a public place and they were not in a state of undress.The SJC decided that the state law that Robertson was charged with violating in 2010 does not actually make what he did a crime.

In the case, Robertson did not contest that he took up-skirt photos of two women on the Green Line in December 2010, however, he did contest that, because the women were not nude, not partially nude, and were in public, he did not violate state law as written.The court ruled that the law as written only applies to people in private settings when they are nude or partially nude. Because in this case these women were fully clothed, wearing under garments, and in public, the incidents do not fall within the law. The court did say that riders should have protections from peeping toms on the MBTA, but the law as written needs to be changed.

“We conclude that the law, as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. The law does not apply to photographing, videotaping, or electronically surveying persons who are fully clothed and, in particular, does not reach the type of up-skirting that the defendant is charged with attempting to accomplish on the MBTA,” read the SJC’s decision. Because the MBTA is a public transit system operating in a public place and uses cameras, the two victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.

After last year’s string of sexual assaults in the north end, women living in Boston’s historic Italian neighborhood had a reason to become weary again last month. A woman was attacked around 1 am when entering the foyer of her Unity Street home. The attacker pushed the woman into her foyer, indecently assaulted her, and took a picture up her skirt with his cellphone before fleeing.

On Monday night, the victim contacted police after she spotted the man she believe attacked her last month. He was playing basketball in the North End. Ross Currier, 26, was arrested that evening, and arraigned in court the following day. Police Superintendent Robert Merner praised the woman for coming forward and being proactive in the search for her attacker, stating “We think it’s tremendous that the woman [responded] the way she did.

In my opinion, residents of the north end should not completely feel comfortable that the perpetrator of the sexual assault in their neighborhood last month has been caught. There are some real issues with the identification of Mr. Currier as the attacker.

On December 7, 2013 police arrested 32-year-old Mauricio Velasquez of Springfield for motor vehicle homicide, operating under the influence, and other crimes after being involved in a head-on crash in Easthampton, MA that left 2 dead and 3 injured. The Northwestern District Attorney’s Office has identified the man and young girl killed in the head-on crash as 71-year-old Charles Hoffman of Easthampton and a 3-year-old girl that is believed to be Velasquez’s daughter.

Officials say Hoffman’s pickup was struck by an oncoming van that crossed the center line while being driven by Velasquez. A woman riding with Hoffman, a second passenger in Velasquez’s van, as well as Velasquez himself were all seriously injured. Velasquez is currently being detained on $50,000 bail and it is not yet clear if he has a lawyer.

Though it may seem that this is a strong case against Velasquez, there are many factors that must be examined. In order to fight this case, Velasquez’s best bet is to hire a skilled criminal defense attorney who will look into the validity of the evidence gathered against him. For example, the Commonwealth must not only prove that a life was lost because of the accident but also that Velasquez caused the accident. In this case, it is clear that two lives were lost because of the accident but it is not clear that Velasquez was the cause of it. There are many things that could have happened to cause Velasquez’s vehicle to hit Hoffman’s vehicle. A skilled criminal defense attorney would have to take time to gather evidence in a number of ways such as: accident reconstruction, crime scene investigation, and witness interviews in order to protect Velasquez’s rights to the fullest extent. All these factors play a huge part in whether or not Velasquez can be convicted of Motor Vehicle Homicide.

Victor A. Merlino
, a Brockton resident, is being charged in Brockton Superior Court with trafficking in cocaine, unlawful possession of a firearm, unlawful possession of a loaded firearm, unlawful possession of ammunition without an FID card, unlawful possession of a class E substance (steroids), assault and battery with a dangerous weapon, two counts of assault and battery and two counts of a threat to commit a crime.

Reports indicate that during the early morning hours on Sunday, Sept. 1, police forced their way into Merlino’s apartment after receiving reports from an unknown source that a 27-year-old woman who was in a relationship with Merlino had been missing and could be in danger. Police forced entry into Merlino’s home with weapons drawn to find Merlino and the woman in a back bedroom. During the forced entry, police officers seized a bag of cocaine, prescription pills and firearm ammunition. Police officers later returned with a search warrant and seized over $10,000 in cash, an additional 40 grams of cocaine, as well as digital scales.

Though this case may seem like there is strong evidence against Merlino, there are many factors that come into play. In order to fight this case, a skilled criminal defense attorney would have to look at the validity of the information given to law enforcement, the validity of the forced entry into Merlino’s home, the validity of the seizures, as well as the validity of the search warrant.

Recently, John Basler, a 25-year-old Massachusetts state trooper, was involved in a car accident that resulted in the death of two women from Carver, Massachusetts. Basler is set to face a judge and be arraigned today in Plymouth District Court on OUI charges as well as charges for improper storage of a firearm.

According to investigating police, Basler’s blood-alcohol level was over twice the legal limit to drive in Massachusetts on Sept. 22, 2013 when his vehicle was involved in a head-on collision in Plymouth during the early morning hours. The other vehicle was being driven by 64-year-old Susan Macchi, with her 23-year old daughter Juliet Macchi in the passenger seat. Both women died as a result of the fatal accident.

In general, law enforcement officers are held to a higher standard than the average person. Basler was trained and educated on the serious dangers involved in drunk driving and still chose to do so. As a result of these charges, Basler was put on unpaid suspension pending the outcome of this case and it is likely he will face much more severe consequences if he is convicted of OUI-manslaughter.