2020 Case Summaries
December 23, 2020
Newton District Court
No. 2012 CR 150
Client, 21-year old, male from New York City is arrested with several other individuals for
breaking into US Post Office mail boxes and stealing packages and envelopes. The charges include multiple felonies. The case languishes for months, partially due to the Pandemic. On this day, the case is called for trial – Atty. Kelly is prepared and answers ‘ready’ for trial. The prosecutor answers ‘not ready’ for various reasons. In anticipation of the prosecutor’s failure to proceed, Atty. Kelly files a Motion to Dismiss in advance of the trial date. After argument, the Court ALLOWS the motion – case DISMISSED.
RESULT: CASE DISMISSED, ( ON DAY OF TRIAL } FELONY CONVICTION AND POSSIBLE JAIL SENTENCE AVOIDED.
December 10, 2020
Middlesex Superior Court
No. 2081 CR 239
On Mother’s Day this past year, the Client a 22 year-old college student – weeks away from graduation stabbed his Mother and Father with a butcher knife. This incident was unprovoked and completely random. Both parents sustained significant wounds, the Mother’s wound were life threatening. The Client ran from the home wearing just boxer shorts and socks. He was apprehended by police a short time later. Atty. Kelly was summoned by the Court to represent the Client after he was determined to be indigent.
Prior to this incident the Client was demonstrating bizarre behavior, putting his cell phone in the micro wave, his tablet in the dishwasher. He had never presented episodes of mental illness prior and was a wonderful son and excellent student.
Atty. Kelly immediately requests that the Court send the Client to Bridgewater State Hospital for a competency and criminal responsibility evaluation. In short he is later diagnosed with acute schizophrenia by several doctors.
The Client is subsequently indicted and charged with 2 counts Armed Assault with Intent to Murder, 2 Counts Assault and Battery with a Dangerous Weapon and 2 Counts of Mayhem.
The Client is evaluated by several doctors who opine that the Client is competent to proceed to trial, however it is determined that the Client is CRIMINALLY NOT RESPONSIBLE for his actions based upon the state of the law – in essence that he ‘ lacked the substantial capacity needed to appreciate the wrongfulness of his behavior and to conform his conduct to the requirements of the law ’.
On this day of jury waived trial ( judge alone ), after presentation and oral argument by the Prosecutor and Atty. Kelly, the Judge returned verdict(s) as follows:
NOT GUILTY AS TO BOTH COUNTS OF ARMED ASSAULT WITH INTENT TO MURDER (STRAIGHT OUT) INSUFFICIENT EVIDENCE PRESENTED.
NOT GUILTY BY REASON OF DIMINISHED CAPACITY AS TO THE REMAINING (4) OTHER COUNTS, (2) ASSAULT AND BATTERY DANGEROUS WEAPON AND (2) MAYHEM.
The Client is returned to a mental health facility for further observation and evaluation for 40 days – ( in order to determine the appropriate course of future treatment and care ).
RESULT: NOT GUILTY AS TO ALL COUNTS AFTER TRIAL.
December 8, 2020
Waltham District Court
No. 1951 CR 1776
Client, 38 year-old homeless male, is charged again with breaking and entering a building in December, 2019. The Client is arrested brought to the Court and refuses to speak with anyone. The Court recognized Atty. Kelly in the courtroom and requests that he represent the defendant. Atty. Kelly agrees and the long process of this representation begins. Atty. Kelly discovers that the Client suffers and has suffered from mental illness, most of his adult life. Atty. Kelly requests that the court order his detention for mental health evaluation. It is later determined by Bridgewater State Hospital that the Client is totally incompetent to proceed to trial. Atty. Kelly is able to secure his release after the evaluation and is transported to a mental health facility – and eventually transistors to a group home.
In October, 2020, Atty. Kelly files a Motion to Dismiss the case on the sole premise that the medical data clearly suggests that the Client will likely never regain a level of ‘competency’ to assist counsel, understand the criminal justice system and thereby proceed to trial. Atty. Kelly’s lengthy motion, memorandum and affidavit based upon MGL c. 123, § 16(f) allows the court to dismiss a case under these circumstances in the ‘interest of justice’. The Prosecutor never responds in writing in opposition to the request.
On this, after legal argument, and over the object of the Prosecutor – the case is DISMISSED.
RESULT: FELONY CASE DISMISSED
December 3, 2020
Middlesex Superior Court
No. 1781 CR 00009
Client, 53-year old male who has been on probation in Superior Court for 2 years as a result of a conviction with regard to several drug offenses. He has 1 year remaining on his period of probation. Atty. Kelly filed a Motion to Terminate his probation based upon his desire to live with his daughter in the State of Tennessee. His Probation Officer objects to early termination. On this day, based upon the Client’s performance while on probation and his candid and persuasive interaction with Judge, the motion is ALLOWED.
RESULT: MOTION FOR EARLY TERMINATION OF PROBATION ALLOWED.
November 12, 2020
Essex Superior Court
No. 1977 CR 118
Client, 34-year old male is charged with multiple counts of rape of a child. It was alleged by the police that the Client met a young male under the age of 17 on a ‘gay dating website’ for men. The website specifically states that you must be 21 years of age to ‘enter’ and engage in communication. After the initial contact, the under age youth agrees to meet with the Client and they engage in ‘consented’ sexual activity on one occasion. An investigation by Mass State Police is organized after the under age youth’s mother discovers photo(s) and texts on her son’s phone. The Client is arrested, charged and later indicted. He faces a minimum mandatory sentence of 10 years in State Prison. Atty. Kelly is retained and works relentlessly for almost 2 years in an effort to convince the D.A.’s Office to reduce the charges based upon the Clients lack of record and ‘mitigating’ facts surrounding the incident. On this day, the Court agrees to the ‘agreed plea bargain’ whereby the Client will receive a 4 year sentence ( and is expected to be released after 18 months ) [ with credit for jail time ].
RESULT: MANDATORY 10 YEAR SENTENCE AVOIDED.
October 22, 2020
Waltham District Court
No. 1951 CR 1676
Client, 23-year old male, with no prior criminal record is stopped by Mass. State Police for a motor vehicle infraction. During the inquiry with the Trooper and alleged observations made, the Trooper searches and seizes a certain amount of marijuana. It is believed the quantity is above the legal limit and he is charged with possession withe intent to Distribute the Drug. Atty. Kelly agrees to represent him and a series of hearings are conducted before and during the Pandemic. A Motion to Dismiss the case is filed as a result of the Prosecutors failure to provide certain discovery as requested. On this day, the Court agrees and allows the Motion after argument. Case DISMISSED.
RESULT: DRUG DISTRIBUTION CASE DISMISSED – CLEAN RECORD PRESERVED.
October 21, 2020
Suffolk Superior Court
No. 1984 CR 742
Client, mid 20’s young male, no prior record, financial consultant is ‘bar hopping’ with a group of friends on a weekend night in the City of Boston. Obviously drinks are consumed and he meets a young female whom is drinking alcohol as well. One thing leads to another, she calls for an UBER to take them both back to her place. Kissing an fondling leads to sexual activity that she claims was unwarranted and not welcomed. She asks him to leave and he complies. She reports to police that she was raped. A 6 month investigation by Boston Police reveals that a ‘credit card invoice’ for the drinks she claims they ordered
[ and paid by the Client via credit card ] lead police to the identity of the Client. He is indicted and arraigned in Superior Court. Atty. Kelly agrees to represent him and hires a DNA Expert and Private Investigator to assist in the case. On this day, just several weeks before a jury waived trial before a Judge alone – the Commonwealth suddenly submits a motion to dismiss the case. The Client is overwhelmed with emotion and is now able to resume his life again after 18 months of anguish.
RESULT: RAPE CASE DISMISSED – STATE PRISON, LIFE TIME SEX OFFENDER REGISTRY REQUIREMENT and CRIMINAL RECORD AVOIDED.
October 7, 2020
Woburn District Court
No. 2053 CR 498
Client, 47-year old male, successful entrepreneur is charged with domestic assault and battery upon his wife. A 911 call is made, police arrive – both Client and his wife give different versions of what occurred. As is common, the male ( Client herein ) is arrested and eventually arraigned before the Court. Atty. Kelly is retained and sets the case down for a trial. On this day of trial, which is scheduled to commence ‘virtually remote’, the alleged victim ( wife ) invokes her marital privilege, thereby necessitating a DISMISSAL by the Judge.
RESULT: CASE DISMISSED ON DAY OF TRIAL.
October 6, 2020
Waltham District Court
No. 2051 CR 667
Client, 35-year old male with a 20-year drug addiction affliction, is arrested once again for Possession of Class A Heroin. Atty. Kelly agrees to accept the case upon the request of the Court. The Client is arrested while demonstrating severe symptoms of ‘drug intoxication’ on a public street. Atty. Kelly meets with Client and encourages him to seek immediate help for his addiction. Fortunately, the Client heeds his advice and enters a drug treatment facility ( The Gavin House ). Many months later, the Client remains a resident and drug free. For the first time in life, he is addressing his ‘problem’ and doing great. As a result of his success, the prosecutor agrees to DISMISS his case.
RESULT: CASE DISMISSED – The Path to a better life is in the works.
September 30, 2020
Newton District Court
No. 1912 CR 580
Client, 27-year old male construction worker with no previous criminal record is arrested and charged with Assault and Battery and Intimidation of a Witness ( FELONY ). It was alleged that the Client struck and injured a female after a night of drinking at a local hotel. It is further claimed by police that the Client ‘grabbed her phone’ so she was unable to call police. Upon arrival to the hotel, the police observed that the Client and the ‘female’ had both sustained injury. The Client was summarily arrested and arraigned. Atty. Kelly investigates the allegations, along with interviewing the alleged victim and witnesses. The case is set down for a ‘Zoom TRIAL’ this day. The prosecutor seeks to introduce at trial, statements allegedly made by the ‘female’ to the police. Atty. Kelly objects by way of written motion and oral argument, indicating to the Court the ‘unconstitutional’ request that is made by the prosecutor. The Court agrees, as a result the prosecutor is forced to DISMISS the case.
RESULT: CASE DISMISSED ( On day of trial ) – ‘CLEAN RECORD’ PRESERVED.
September 17, 2020
Suffolk Superior Court
No. 1984 CR 703
Client, 34-year old male, Father of 2 young children, is indicted by a Grand Jury for trafficking in cocaine. A conviction of this offense, carries a mandatory minimum sentence of 3 years in State Prison. The arrest of the Client occurred after the execution of a search warrant by local police. Various drugs, and associated items associated with drug dealing were discovered. It was learned through ‘discovery’ of the case, that the Client had been under surveillance for several weeks. Atty. Kelly, after reviewing the police reports, search warrant and Grand Jury transcript, began a long and protracted negotiation process with the prosecutor. After many months, a resolution was achieved. The prosecutor would amend the trafficking indictment to a lesser charge ( Possession of Cocaine with Intent to Distribute ) – thereby negating a mandatory sentence of confinement. As such, the Client pled to this charge and was placed on probation for 2 years with various conditions. During the pendency of this case, as a result of Atty. Kelly’s efforts, the Client remained ‘free’ on bail. It should be noted that the COVID Pandemic Crisis that our country and the world faces, in no small measure, contributed to this ‘very just’ outcome.
RESULT: STATE PRISON – MANDATORY SENTENCE AVOIDED.
September 9, 2020
Waltham District Court
No. 2051 CR 498
Client, 33-year old homeless female is charged with lacerating the face of another female with a box cutter. The injuries are horrifying and have resulted in permanent scarring to the victim. The Court requests that Att. Kelly be appointed to represent the defendant.
In response, he set forth’s a plan of ‘rehabilitation’ of the Client while she is incarcerated awaiting trial. She immediately avails herself of all programs, i.e. physical abuse, drug, alcohol and mental health programs that are available to her while she is at the jail.
The prosecutor evaluates as to whether they will pursue an indictment before the Grand Jury. However, as a result of her successful completion of all the ‘stated’ programs – the prosecutor agrees to reduce the ‘mayhem’ charge, thereby allowing the case to remain in District Court. Thus, she pleads to a lesser charge – receives a minimal jail sentence, followed by intense condition of probation following her release.
RESULT: CHARGES REDUCED – STATE PRISON TIME AVOIDED.
August 26, 2020
Middlesex Superior Court
No. 1981 CR 514
Client, 30-year old male along with 3 other co-defendants allegedly attack another male with fist, leg kicks and a gun. They are all charged with various criminal acts of violence. The incident is also captured on a ‘cell phone camera’. Atty. Kelly agrees to represent the aforementioned Client and proceeds to investigate the ‘entire’ incident, apart from what is depicted on the video. As a result, the Client pleads to a lesser charge and avoids jail/prison.
RESULT: COMMITTED PRISON SENTENCE AVOIDED.
August 25, 2020
Waltham District Court
No. 2051 CR 138
Client, 37 year-old male, is approached by local police while he is sitting in his motor vehicle. He is ordered to get out of the car and a full search of his person and his vehicle is conducted by the police. At no time does the Client consent to the search. Atty. Kelly files a Motion to Suppress ( drugs that are found in the vehicle based upon the ‘lack of probable’ to initiate the search and eventual seizure ). The prosecutor acknowledges the validity of the ‘motion’ and moves to Dismiss the case in Court.
RESULT: CASE DISMISSED – JAIL TIME AVOIDED.
July 29, 2020
Newton District Court
No. 2012 AC 239
Client, 20 something male is charged with distribution of marijuana. Local police ‘drug task force’ set up surveillance of his home and follows his vehicle through out various counties in an attempt to secure ‘information’ to warrant probable cause to arrest and charge him. After several days the Client receives notice to appear for a court hearing relative to whether a criminal complaint should answer. His family retains Atty. Kelly and during the hearing convinces the Court that there is not ‘probable cause’.
Criminal application DENIED.
RESULT: CRIMINAL APPLICATION FOR DRUG DISTRIBUTION DENIED ‘CLEAN RECORD PRESERVED’.
July 16, 2020
Woburn District Court
No. 2053 CR 406
Client, 50 year-old male, general contractor – is charged with larceny of an elderly individual while he was in charge of renovating her home. The amount alleged to have been stolen, was approximately over $250.000.00. The items taken, consisted of jewelry, paintings, silverware, etc. . The Client was contacted by local police, and in turn, retained Atty. Kelly. After several months of negotiations with police and the District Attorney’s Office, Atty. Kelly was able to reach a ‘negotiated compromise’. In essence, various items were returned, along with substantial cash. In exchange, the Client pled to several charges and avoided prison time.
RESULT: JAIL/PRISON TIME AVOIDED.
March 2, 2020
Newton District Court
No. 1312 CR 000009
Client, 31 year-old male with an outstanding criminal case for larceny of a motor vehicle, dating back to 2012, is brought to court on a warrant for his arrest. A review of the police report by the prosecutor and Atty. Kelly, suggests that ‘probable cause’ was not present at the time the charges were filed. As such, his case was dismissed this day at the request of the prosecutor and with the consent of the Client.
RESULT: CASE DISMISSED, No ‘Probable Cause’ for issuance of Criminal Complaint.
February 27, 2020
Waltham District Court
No. 2051 CR 62
The Client, 21-year old male college student ( junior year ) is arrested for a 1st Offense OUI.
It was alleged that after drinking alcohol at a fraternity house he went back to his car that was parked in a ‘private parking lot’ adjacent to the ‘frat party’. The Client rammed his car into the fence which alerted neighbors, resulting in the police arriving. He was clearly intoxicated and certainly unable to operate a motor vehicle. He was arrested and arraigned in court. Atty. Kelly was retained and immediately investigated the location of the incident. Atty. Kelly met with the prosecutor and submitted his findings regarding public way versus private way. The issue in the case as detailed under Mass. law, is that for one to be convicted of ‘drunk driving’ – 3 elements must be satisfied: Person operated a motor vehicle, on a Public Way and was impaired by the use of alcohol. The prosecutor agreed that they could not sustain their burden relative to ‘public way’ and a Nolle Prosequi was filed today, in essence dismissing the case.
RESULT: OUI CASE DISMISSED, CLEAN RECORD PRESERVED, LICENSE REINSTATED.
February 26, 2020
Brookline District Court
No. 1909 CR 318
The Client, 58-year old male, California resident, is arrested for an OUI 3rd Offense ( which carries a minimum sentence of 150 days incarcerated in the House of Correction ). It was alleged by the Mass. State Police that he had driven a motor vehicle while intoxicated. The Troopers’ were responding to a dispatch call that mentioned a person was in need of medical care. Upon their arrival, they observed a vehicle off the road with a flat tire and the Client receiving medical treatment from an EMT. The Client was highly intoxicated and was transported to a local hospital for treatment. He admitted to the Troopers that he ‘had been driving and he was sorry’. However, no one saw him drive the vehicle and/or observed him behind the wheel. Also, the ignition was off and the keys not in the ignition. The Client had a small bottle of alcohol upon his person.
On this day of trial, the prosecutor failed to present either Trooper for trial and requested a continuance. Atty. Kelly objected and alerted the Court to the fact that even if the Troopers’ had appeared and testified, the Client could not be found guilty beyond a reasonable doubt based upon the issue of ‘operation’ and the law. The Court agreed, case DISMISSED.
RESULT: 6 MONTHS HOUSE OF CORRECTION SENTENCE, AND 8 YEAR LOSS OF LICENSE AVOIDED.
February 12, 2020
Gardner District Court
No. 1953 CR 705
The Client, 62-year old female home health aide is arrested for an OUI 2nd Offense. It was alleged that she operated her vehicle on a state highway in an erratic manner that was witnessed by a Mass. State Police Trooper, who subsequently pulled her over. She presented herself with glassy eyes, incoherent speech, imbalance, smell of alcohol etc. . She agreed to participate in a number of field sobriety tests ( never a good idea ). The Trooper believed she failed each and every one. She was arrested brought to the barracks and submitted to a breath test that resulted in a reading well above the legal limit.
On this day, Atty. Kelly was able to convince the Judge that his Client would benefit from an OUI 1st Offenders DISPOSITION again. Instead of a guilty finding on a 2nd Offense which would have resulted in a loss of license for 2 years and 14 days in jail or 14 days in a alcohol rehab. facility, 2 years probation and perhaps the loss of her job.
Under this sentencing structure by the Court, the Client will lose her license for 45 days, ordered to again attend the 1st Offender alcohol program for one night a week for 16 weeks and be on probation for 1 year. At the end of the year, baring any problems – this case will be dismissed. This opportunity presented itself because her 1st OUI was in 2003, 17 years ago. ( Under Mass. law, a person with a 1st offense OUI outside of 10 years is eligible ). However, in this case the Prosecutor objected to Atty. Kelly’s recommendation, fortunately the Court disagreed.
RESULT: 2nd OFFENSE OUI CONVICTION WITH STATUTORY CONDITIONS AVOIDED.
January 31, 2020
Suffolk Superior Court
No. 1884 CR 734
The Client, 34-year old male with a criminal record that involves the sale of drugs, armed robbery and guns, is indicted again on charges involving trafficking in fentanyl, possession of a rifle, ammunition and distributing cocaine etc.. As a result of these charges and the Client’s prior record, he is facing a state prison sentence of 15 years or more.
This incident occurred in the City of Chelsea in May, 2018. At that time, the Client was basically homeless and was sleeping at a home of his step brother when a fire broke out in the early morning hours. All occupants, including his step brother and step mother were able to escape without injury. During the investigation of the fire, large quantities of drugs, money, drug packaging materials i.e. ( scales, cutting agents, plastic baggies, etc. ) were found in the bedroom the Client had slept in, along with a rifle and ammunition. The Client cooperated with the fire and police investigators, and indicated that he in fact had slept in that room. He was immediately arrested and placed in custody for 9 months until his family was able to raise the ‘bail money’.
During the course of the trial, Atty. Kelly alerted the jury to the ‘common sense’ issues that the Prosecutor could not overcome relative to the Client’s culpability. Atty. Kelly aggressively confronted each of the prosecutors witnesses through out the trial. On this day, after 5 days of trial, a jury returned a verdict of NOT GUILTY AS TO ALL 5 INDICTMENTS. The Client was overwhelmed with emotion and set free by the Court.
RESULT: NOT GUILTY JURY VERDICT ON ALL CHARGES, 15 YEAR+ STATE PRISON SENTENCE AVOIDED.
January 21, 2020
Uxbridge District Court
Clerk’s Hearing No. 2065AC90
The Client, a male high school senior punches a classmate in the head following a barrage of taunts during gym class. The injured party was ‘knocked unconscious’ and immediately transported to a local hospital. He was placed in a ‘medically induced coma’ for two days while being treated for his injuries. The Client is indefinitely suspended from school and the matter is fully investigated by the school and local police. The police make application for issuance of a criminal complaint, alleging a felony, specifically Assault and Battery resulting in Serious Injuries. Atty. Kelly is retained, and sets forth a strategy to hopefully prevent the issuance off the criminal complaint. On this day a hearing was held before a Clerk Magistrate to determine whether criminal process should issue. Fortunately, the family of the injured male ( who has returned to school and recovered from his injuries ) were in support that a criminal complaint NOT issue. The local police were in agreement as well. As such, the criminal complaint would not issue, however, the matter would remain ‘open’ for 1 year, the Client must undergo anger management counseling. At the conclusion of the year, his case file would be closed, with no entry of a criminal charge on his record. In view of this disposition, the Client was able to return to school to finish his Senior year.
RESULT: NO CRIMINAL FELONY COMPLAINT TO ISSUE.
January 16, 2020
Middlesex Superior Court
No. 1881 CR 205
The Client, 24-year old male with an extensive criminal record is indicted on charges ranging from home invasion and armed robbery to assault and battery with a dangerous weapon ( a knife ) causing serious bodily injury. It was alleged that the Client, along with an accomplice broke into a home stabbed two males and robbed them both of money and drugs. After almost a year of court hearing(s) and meetings with the prosecutor, an agreement relative to a plea was finalized with the help of the Court. Although the lead indictments are in fact ‘life felonies’ – the ‘guidelines’ based upon the Client’s record and other factors, suggested a range of 10-15 years confinement in State prison. Atty. Kelly persuaded the Court to impose a committed sentence of 4 years followed by 3 years of probation with special conditions of probation, drug counseling, drug screening, etc. .
RESULT: PLEA OF GUILTY, LENGTHY PRISON SENTENCE AVOIDED.
January 7, 2020
Waltham District Court
No. 1951 CR 267
The Client, 30-year old male with a criminal record is charged with breaking and entering into a building in the daytime with the intent to commit a felony. The police investigation centered around the alleged presence of fingerprints that may belong to the Client. Atty. Kelly requests any and all data, analysis reports, etc. from the prosecutor relative to the ‘fingerprint discovery and lab analysis’. Despite repeated requests, the prosecutor fails to provided the information requested. Atty. Kelly files a motion with the Court, seeking ‘sanctions’ against the Government for it’s failure to abide by the rules of criminal procedure and associated laws. The Court rules in the Client’s favor and on this day the case is dismissed.
RESULT: CASE DISMISSED.