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December 10, 2013

The Basics of Massachusetts Bail Laws

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.

September 20, 2010

Gardner and Smith Plea Not Guilty to OUI and Motor Vehicle Homicide Charges in Death of Highway Construction Worker

One Tuesday, September 14, Gardner and Smith were allegedly driving drunk on Route 9 and crashed into a highway construction crew. The crash was at a high speed, and killed Gregory Vilidnitsky, an inspector for the state's Department of Transportation. Police and prosecutors say the two were drunk behind the wheel when they smashed into Vilidnisky and then into an oil truck. According to the prosecutor at arraignment, the two men admitted to drinking before driving. In fact, Smith admitted to police that he had consumed four to five jack and coke drinks, and felt intoxicated. The two then tried to run away but were apprehended by the construction crew and an officer on duty. Gardner and Smith are both carpenters who were staying at a hotel in Framingham.

The two men were arraigned in Framingham District Court on September 15, 2010. Both Gardner and Smith claim the other was the driver, and both pled not guilty to the various charges, including: Operating under the Influence (OUI) and Motor Vehicle Homicide. Gardner was ordered held in lieu of $100,000 cash bail, on charges of speeding, motor vehicle homicide and, if convicted, this would be his second OUI. Smith was ordered to be held in lieu of $50,000 cash bail. This is Smith's third OUI charge, and faces a significant sentence if convicted. The prosecutor explained, during arraignment, that a strong odor of alcohol emanated from both Gardner and Smith when apprehended, and they were glassy eyed.

These men are no strangers to a courtroom. Gardner has 11 convictions on his criminal record, including drug convictions and one for operating a car with a suspended license. Smith has two prior OUI convictions in Vermont. Under Megan's Law in Massachusetts, consecutive OUI convictions increase the sentences suspects face. According to Gardner's lawyer, the major question at trial will be who was driving, because that person will face more serious consequences.

2 Held in Death of Highway Worker

Two held on High Bail After Highway Workers Death in Framingham

August 5, 2010

Attorney Francis T. Obrien Featured in Salem Evening News Article

Attorney Francis T. Obrien Jr., Head of the Criminal Practice at Parker Scheer LLP, was recently featured in an in The Salem Evening News.

Lawyer questions search in Beverly drug bust

By Paul Leighton and Julie Manganis Staff writers

BEVERLY -- Beverly police drug detectives found more than $9,000 worth of cocaine and heroin inside a Lexus on Wednesday evening and arrested the driver on trafficking charges.

But after suspect Israel Colon's lawyer raised questions about whether police, without a warrant, had the right to search the Lexus as extensively as they did -- using a trained drug-sniffing dog and ripping open a secret compartment in the SUV -- a Salem District Court judge set bail at just a fraction of the amount requested by prosecutors.

Colon, 24, who police say lives in Lawrence, pleaded not guilty during his arraignment yesterday to charges of cocaine and heroin trafficking and violating the city's knife ordinance.

Prosecutor Michelle DeCourcey sought a $500,000 cash bail. Judge Richard Mori set bail at just $10,000.

DeCourcey described how Beverly Detectives Sgt. Michael Cassola and Thomas Nolan, and Wenham police Detective Sgt. Mark Fraser were conducting surveillance on Cabot Street near the One Stop Market late Wednesday afternoon.

They saw two men known to them as drug users, then watched as they went back to the apartment of one of the men on Elliott Street, a short distance away, DeCourcey said.

Colon showed up a short time later and the detectives recognized him from an investigation a year and a half ago, DeCourcey told the judge.

The three went inside the apartment, and then Colon left, watched by the detectives as he went to the Lexus, which was parked on Chase Street.

Cassola noticed that the windows of the Lexus were illegally tinted and approached Colon, who said the SUV belongs to someone else.

Cassola said he saw a folding knife, opened up, on the back seat within reach of the driver's seat and arrested Colon on a charge of violating the city's knife ordinance, DeCourcey told the judge.

Then, police had the SUV towed because the person that Colon identified as the owner has no license.

DeCourcey said the officers noticed a strong odor of air fresheners -- often used to conceal the odor of drugs -- and spotted what appeared to be wires wrapped with electrical tape dangling from under a panel in the car.

Eventually, with the help of the drug dog Blitz, police found a total of 58 grams of cocaine (about 2 ounces) and 24 grams of heroin, packaged in small bags and hidden inside mouthwash bottles, which were then hidden inside a secret compartment. They also found $1,000 in cash, and another $341 on Colon.

Detectives also found "several newspaper clippings" on recent drug arrests, police said.

The detectives believe the packaging method used is an indication that Colon is part of drug ring they refer to as the "Burgos-Ortiz gang."

Last March, police arrested Juan Burgos, 24, of Lawrence on drug-trafficking charges in Beverly Farms, where he claimed he'd gone for pizza.

Defense lawyer Frank O'Brien argued that the search went well beyond the scope of anything police were legally entitled to do without a warrant -- and called DeCourcey's request for bail "patently absurd."

O'Brien told the judge that "by sheer coincidence" he also represents Burgos, who was released on $15,000 bail following his indictment.

Beyond that, O'Brien said, the search described by DeCourcey was "a patently illegal search."

Police are allowed to conduct searches of vehicles without a warrant under specific circumstances. They can look for evidence related to the offense for which someone is arrested, in this case a knife ordinance violation. They can also conduct what are known as "inventory" searches, intended to document the contents of a vehicle being towed in case of a future loss claim.

"This case is going nowhere," O'Brien argued, "because it was an illegal search."

Lawyer Questions search in Beverly Drug Bust.