2018 Case Summaries
November 26, 2018
Dorchester District Court
No. 1807 CR 1112
Client, 57-year old male, National Director of an Emergency Relief organization, is charged with
OUI, after allegedly ‘failing’ an interaction with several Mass. State Police Troopers – hereafter ( MSPT ) during a ‘Field Sobriety Checkpoint’ in the Boston Area. At approximately 1:00 am, the Client was heading home when he came upon a MSP sobriety checkpoint, detailed with orange cones, state police vehicles, red/blue lights, flash lights and many MSPT. The initial Trooper smells a ‘moderate odor’ of alcohol on the Client. He admits to drinking a little and is asked to step from the vehicle to perform ‘field sobriety test(s)’ [ never a good idea to participate – just say ‘no thank you’ ]. At the conclusion of which, he is arrested. The Trooper notes the usual, glassy eyes and red face. It should be further noted that this particular Trooper had been on the job for about 2 months prior to this arrest. Atty. Kelly is retained. On this day, a jury trial is held – the arresting Trooper testifies and then is subject to intense cross-examination by Atty. Kelly. After closing arguments by the prosecutor and Atty. Kelly, the jury was instructed by the Judge as to the law, and they retired to deliberate. After about and hour, the jury returns and announces that the Client has been found NOT GUILTY OF OUI.
RESULT: NOT GUILTY VERDICT BY JURY OF OUI 1st OFFENSE.
November 2, 2018
Waltham District Court
No. 1851 CR 202
Client, 47-year old male construction worker, husband and father of 2, is charged with OUI 2nd Offense. It is alleged that after watching his son’s hockey, he went drinking with a friend before heading home. On his way, around 9:00 pm on a snowy, freezing rainy night, he lost control of his motor vehicle . The vehicle hit another car, fence, pole and the front of a house on the opposite side of the street. The police arrive in response to a 911 call. The Client is interviewed, the police detect a strong smell of alcohol, typical red and glassy eyes and slurred speech are noted. He is arrested after refusing to perform ‘field sobriety test(s)’ [ always a good idea ]. He is transported to the police station, booked and refuses to take the ‘breath test’ [ always a good idea under most circumstances ]. The booking process is visually and audio recorded. Atty. Kelly is retained and secures a copy of the favorable ‘video’. On this 2nd day of jury trial, and after extensive cross examination of 2 police officers, together with the presentation of the video, followed by argument before the jury by Atty. Kelly and the Prosecutor, a verdict is returned. The Client is found NOT GUILTY BY THE JURY.
RESULT: NOT GUILTY VERDICT BY JURY OF OUI 2ND OFFENSE.
October 24, 2018
Newton District Court
No. 1812 CR 83
Client, 53-year old male real estate broker is charged with OUI 2nd Offense. It is alleged that after a night of drinking at a party, he operated his vehicle unsafely which was reported to the police by a civilian. The police arrived at a public parking lot and observed the Client driving. He was approached, asked to perform a series of a series of ‘field sobriety test(s)’ [ never a good idea ], to which he failed miserably according to the police report. He smelled of alcohol, and there was vomit on his shirt and through out his car, his eyes were red and glassy and he was unsteady on his feet. He was arrested, held in jail and then later arraigned.
On this day of trial, the Client pled guilty to a 1st Offense disposition, ( which is available to defendants whose previous OUI offense is 10 years or more ago ). The Client’s initial offense was 15 years ago. However, it remains in the discretion of the sitting judge as to whether such a ‘disposition’ will be afforded to a defendant. In this case the prosecutor recommended 2nd Offense disposition, 6 months committed in the House of Correction, 14 days to serve in an Alcohol Treatment Facility, balance suspended for 2 years – probation for 2 years, 90 days loss of drivers license, together with added fees and costs. Atty. Kelly persuaded the Court to allow the Client ‘to once again’ enter and complete the 1st Offenders OUI Program with a loss of license for 45 days, 1 year probation.
The Court agreed.
RESULT: OUI 2ND OFFENSE – PLED TO A 1ST OFFENDERS DISPOSITION –
14 DAY ALCOHOL COMMITMENT AVOIDED, ETC.
October 18, 2018
Newburyport District Court
No. 1822 CR 492
Client, 24-year old former college football player is arrested for OUI Alcohol. While operating his motor vehicle approximately 15 mph over the speed limit, he is stopped by local police. The Client properly produces his license/registration and agrees to perform ‘field sobriety test(s)’ hereafter FST [ never a good idea ]. At the conclusion of which, he is arrested. The police officer notes the usual, smell of alcohol, glassy eyes, slurred speech. Fortunately, the Client refuses the Breath Test at the police station. On this day of trial, the police officers are aggressively cross-examined by Atty. Kelly, whereby the 2 police officers are forced to acknowledge that in fact the Client did perform ‘well’ on most of the FST’s. At the conclusion of trial and after argument by the prosecutor and Atty. Kelly, the Client is found NOT GUILTY.
RESULT: NOT GUILTY OF OUI AFTER TRIAL.
October 4, 2018
Peabody District Court
No. 1886 CR 482
Client, 50-year old male, transport driver for the disabled, is charged with OUI Drugs. It is alleged that he ran into a motorcycle while operating the van. The sole passenger ‘blurted out to the police’ “he’s on drugs”, referring to the Client. As a result, with no further evidence, the Client is arrested and charged by the police. He agrees to submit to a ‘drug teat’ at the police station, and the results are sent to the State Police lab for testing. What the police where unaware of, is that the van was equipped with ‘on board’ cameras’ that clearly exonerated the Client from driving impaired and unequivocally not responsible for the accident. Atty Kelly is retained, secures the ‘tape(s)’ from camera(s) and presents same to Court. In addition, the ‘drug test’ came back NO DRUGS whatsoever in the Client’s system at the time of the incident. Case Dismissed. The Client is presently contemplating the filing of a Civil Rights complaint, alleging unlawful arrest and prosecution, etc.
RESULT: OUI DRUG CASE DISMISSED.
September 13, 2018
Wrentham District Court
No. 1757 CR 2159
Client, 47-year old male is charged with assaulting his elderly Father and damaging property within the Parent’s home. The Client’s outrage and unacceptable behavior was fueled by alcohol. Although clearly not an excuse for his conduct, he readily accepted responsibility by engaging in out patient counseling and offering to submit to random alcohol screens. On this day of trial, the Parents refused to attend Court, leaving the prosecutor with the only option to dismiss the case. The Client will continue to engage in services to treat his alcohol addiction.
RESULT: CASE DISMISSED.
September 4, 2018
Middlesex Superior Court
No. 1481 CR 104
Client, 19-year old male at the time of the crime, is charged with 1st Degree Murder. The Client along with 2 other co-defendants’ planned to rob a drug dealer of money and drugs.
During the ‘exchange’, the Client fired a single bullet into a motor vehicle, killing the driver ( alleged drug dealer ). The ‘shooter’ was wearing a mask that was recovered near the scene, the ‘mask’, later analyzed, contained the DNA of the Client. After several years of pre-trial hearings, a co-defendant agreed to cooperate with the prosecutor ( in exchange for a lesser sentence ). A such, after several months of negotiation between the prosecutor and Atty. Kelly, a ‘plea deal’ was finally reached. The Client pled guilty to 2nd degree Murder this day, all associated charges ran concurrent. It is anticipated that the Client will be eligible for parole in 10 ½ years.
RESULT: 1ST DEGREE MURDER CONVICTION AND LIFE IMPRISONMENT WITHOUT PAROLE AVOIDED.
August 13, 2018
Newton District Court
No. 1812 CR 126
Client, 25-year old male is charged with a Civil Rights violation, Indecent Exposure and Disorderly Conduct. After a night of drinking with his girlfriend, he summoned Uber for a ride home. Although there are variations to the ‘true story’ – it is alleged that the Client exposed himself and uttered racial epithets at the Uber driver after being dropped off at his home. A series of hearings began, 1st in the Clerk Magistrate Session were a Criminal Complaint for the above charges was initiated by the police. At the initial hearing, the Civil Rights charge was summarily dismissed by the Clerk Magistrate after argument by Atty. Kelly. The remaining charges were then sent to the Presiding Justice for arraignment and prosecution. A further hearing was conducted as to the ‘Disorderly’ charge, and upon motion and argument, that charge was dismissed by the Court. As such, the remaining charge of Indecent Exposure was set for trial this day. After a request by Atty. Kelly, the Prosecutor agreed and allowed the case to remain open for 6 months ( which essentially means ‘Pre-Trial Probation’ [ at the end of which, baring any new criminal activity by the Client, his case will be dismissed by the Court ]. The Client was further ordered to write a letter of apology to the Uber driver.
RESULT: PARTIAL DISMISSAL OF THE CHARGES – PRE-TRIAL PROBATION ON REMAINING CHARGE ( EXPECTATION FOR COMPLETE DISMISSAL IN 6 MONTHS )
August 1, 2018
Newton District Court
No. 1812 CR 66
Client, 50-year old female and women’s lacrosse coach at a major university, is charged with operating under the influence of alcohol, ‘OUI’. It is alleged that the Client, after drinking alcohol following a ‘game’, operated her vehicle in a manner that caused it to ‘bump’ a police officer’s private vehicle, while he was ‘working a paid detail’ on a public street. There was no damage to either vehicle. The reporting officer smelled alcohol on her breath, claimed her eyes were glassy and her speech slurred. He contacted his ‘police colleagues’ who arrived an arrested her. The Client refused to perform any ‘field sobriety testing’ i.e., one legged stand, 9 step walk, alphabet, etc. and later refused the breath test at the police station. On this day a ‘bench trial’ was held before a judge alone. After skillful cross-examination and argument by Atty. Kelly, the Court found the Client NOT GUILTY of OUI.
RESULT: NOT GUILTY VERDICT, CLEAN RECORD PRESERVED – POTENTIAL EMPLOYMENT ISSUES FAVORABLY RESOLVED
July 25, 2018
Natick District Court
No. 1887 CR 147
Client, 56-year old male, is charged with Negligent Operation of a Motor Vehicle and possession of drug(s) – [ Cocaine ] by a Mass. State Trooper. He was pulled over while he was operating his motor vehicle on the Mass. Pike. During a preliminary hearing, Atty. Kelly persuaded the Clerk-Magistrate that there was insufficient evidence to charge the Client with neg op – the Court agreed and that charge was dismissed. A trial was set with regard to the Possession of Drug charge. On this day, as a result of the Prosecutor ‘not able to proceed to trial’ and despite a request for a continuance, the Court dismissed the criminal complaint.
RESULT: CASE DISMISSED, CLEAN RECORD PRESERVED.
June 26, 2018
Lowell District Court
No. 1711 CR 5301
Client, 58-year old male, an former Marine with no previous criminal record, is charged with Assaulting his ex-wife with a Dangerous Weapon – his motor vehicle. This charge is a Felony under Mass. law. In essence, she accused him of driving ‘at her vehicle’ while both vehicles approached each other at an intersection. She claimed that she had to abruptly swerve to another lane and apply her brakes. As a result, she was shocked, distraught and afraid. Unfortunately, the responding Officer, without properly investigating the ‘alleged incident’ charges the Client without corroborating her story. The Client is arraigned in September, 2017 – the incident allegedly took place on August 21, 2017 in the Town of Tewksbury. Several months later, the Tewksbury Police Department ( TPD ) assigns a Detective to view various store front surveillance video’s to corroborate the ex-wife’s account of the incident. On or about January 8, 2018, the TPD is unable to do so and files a supplemental report indicating same. On this day a trial is held, Atty Kelly sets forth a vigorous cross examination of the responding officer, the detective and the alleged victim. At the conclusion of trial, the Client is found NOT GUILTY by the Court.
- It should be noted that the ex-wife between 2012 and 2015 initiated 19 criminal complaints against the Client that were brought to Court by the TPD. ALL 19 CASES WERE EVENTUALLY DISMISSED BY THE COURT – Atty. Kelly represented that Client on each case. As a result, a previously pending lawsuit against the TPD is awaiting trial in Federal District Court with regard to the TPD failure to properly investigate the ‘fabricated claims of criminal conduct’ by the ex-wife, etc. .
RESULT: NOT GUILTY VERDICT – CLEAN RECORD PRESERVED.
June 11, 2018
Middlesex Superior Court
No. 1781 CR 661
Client, 32-year old male with an extensive drug addiction and long criminal record, is indicted with regard to Masked Armed Robbery ( Life Felony ), Breaking and Entering in the Daytime with Intent to Commit a Felony, Possession of guns, ammunition, etc. ( 7 total indictments ) [ 2 separate incidents ]. The Client is arrested, arraigned and held in custody for trial. Atty. Kelly is retained by his Family to represent him. In short, his ‘alleged’ fingerprint is at the scene of the break-in, a surveillance video exists of his alleged involvement in the robbery of a 7 Eleven store. In addition, the Prosecutor presents 3 ‘immunized’ civilian witnesses who testify against him, ( immunized witness can testify without fear of prosecution for any criminal act that they involved in with regard to the case on trial ) along with 2 Detectives and a State Police Fingerprint Analyst. Atty. Kelly vigorously cross examiners each ‘witness’. After 7 days of trial, including 2 days of jury deliberation, the jury returned a verdict of NOT GUILTY ON ALL 7 INDICTMENTS. He was immediately set free, among many tears and celebration, to join his family.
RESULT: NOT GUILTY AFTER JURY TRIAL – LIFE SENTENCE AND/OR THE IMPOSITION OF MULTIPLE YEARS OF STATE PRISON CONFINEMENT IS AVOIDED.
May 22, 2018
Newton District Court
No. (Case Sealed )
Client, 20-year old Freshman male college student is charged with the felony of breaking and entering into a depository, to wit: a cargo container – that was positioned on a construction site. In essence, the Client and his 2 friends went inside the ‘open container’ to smoke a joint. The police arrived by chance, questioned the young men, and then arrested them. The police contacted the contractor, he arrived and said “noting is missing or disturbed”. However, they were brought to Court and arraigned. Atty. Kelly was immediately retained and filed a Motion to Dismiss [ based on an obvious lack of ‘probable cause’ to arrest and charge each boy with a felony ]. After hearing, the Court agreed on 7/25/2017. On this day, Atty. Kelly filed a Petition to ‘Seal the Record’, after hearing the Court ALLOWED said Petition, criminal record sealed.
RESULT: CRIMINAL RECORD SEALED.
May 22, 2018
Newton District Court
No. 1812 CR 125
Client, 22-year old female college student is accused by her now ex-boyfriend of assaulting him with a dangerous weapon, to wit: a cell phone. Unfortunately said charge is a Felony under Massachusetts’ law. The police filed the charges, she is arraigned and then pursues a private criminal ‘complaint against him for assault and battery’ – to which the Court allows. On this day, both individuals invoke their respective 5th Amendment Right ( not to testify at either trial ) and the Court dismisses the case upon the Prosecutors request.
RESULT: CASE DISMISSED – FELONY CONVICTION AVOIDED.
February 22, 2018
Framingham District Court
No. 1787 CR 640
Client, 34-year old male police dispatcher is arrested for OUI. He apparently ‘hit a curb’ that damaged and flattened his passenger side tires, resulting in the deployment of several air bags within the vehicle. The police arrive, smell alcohol, remove him from the vehicle and he is asked to perform several field sobriety tests ( never a good idea, you should always refuse to participate ). Although his performance on said ‘tests’ were very good, he is arrested and charged. Atty. Kelly is retained, a series of ‘hearings’ are scheduled, resulting in the discovery of ‘favorable information’, i.e. ‘Booking Video’ – that in essence depicts the Client in a ‘balanced’ and ‘proper’ stance during questioning at the police station. On this day of trial, after a Motion for a Directed Verdict of Not Guilty ( which is argued and presented by Atty. Kelly at the conclusion of the Prosecutor’s case ) – the Court orders that the motion be ALLOWED ( essentially recognizing that the prosecutor failed to produce sufficient evidence to warrant further consideration of the charge of OUI ) thereby ending the case.
RESULT: MOTION FOR DIRECTED VERDICT OF NOT GUILTY- ALLOWED !
January 25, 2018
Waltham District Court
No. 1551 CR 1947
Client, 52-year old construction worker, is arrested for a 2nd offense OUI. It was alleged that his motor vehicle was drifting in his lane and speeding at 1 am in the morning on a cold November night. The police officer engages the vehicle, displays his overhead lights and the vehicle pulls over. The Client produces his license and registration without issue. However, it is alleged that he smells of a strong odor of alcohol, red eyes, slurred speech.
He proceeds to attempt to perform a series of Field Sobriety Tests ( never a good idea, you should always refuse to participate ) he is then arrested and charged. Atty. Kelly is immediately retained, after a series of pre-trial hearing(s) a trial is set. On this day of trial, the Court informs the jury based upon Atty. Kelly’s request, that they be apprised that the ‘booking video’ ( which is about 45 minutes in length, taken right after the arrest, audio / visual tape – has been erased by the police department, and not available for them to view )
The Court further informs the jury that they may adversely hold the Prosecution accountable for unavailability of said tape. This is a crucial issue at trial. After intense cross examination of the police officer, closing argument(s) and jury instructions delivered by the judge, the jury retires to deliberate. After only 13 minutes, the jury returns with a verdict of NOT GUILTY.
RESULT: JURY VERDICT OF NOT GUILTY OF OUI 2nd Offense.
January 17, 2018
Newton District Court
No. 1612 CR 764
Client, 46-year old, married, father of 6, Logan Airport maintenance worker, is asleep in his car with the ‘flashers on’ and the car running at 2:30 am. The front left tire is shredded and extensive damage to the rim. A call is made to the police relative to a disabled vehicle on a public way with a non-responsive male behind the wheel. Police investigate, woke up the Client, smell alcohol, Client unsteady on feet, slurred speech, glassy eyes, etc. . He proceeds to attempt to perform a series of Field Sobriety Tests ( never a good idea, you should always refuse to participate ) he is then arrested and charged with OUI. Atty. Kelly is retained, after a series of pre-trial hearing(s) a trial is set. On this day of trial, after vigorous cross-examination of 2 police officers and closing argument by Atty. Kelly, the Client is found NOT GUILTY OF OUI.
RESULT: AFTER TRIAL, NOT GUILTY OF OUI.