RI First Degree Sexual Assault Case Results and Testimonial

First Degree Sexual Assault Charges Results

March, 2013.  Client was facing two counts of First Degree Sexual Assault in Providence Superior Court.  After a six-day jury trial in which the state called 9 prosecution witnesses, including a DNA expert, client was found Not Guilty on all counts.
                                                                                                                                                                                         
Testimonial by family:

"There are no words to describe the gratitude of our family. You have helped us navigate the most stressful and difficult 16 months of our lives.  Because of your representation, two beautiful children will know their father's love, will never have to endure the shame and humiliation of having an incarcerated parent, can giggle and laugh as they run through the house chasing their dad as they were doing earlier. They'll never know how close they came to a life changing experience. Thank you from the depth of my soul!"
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If you have questions about this post or are interested in Criminal Defense, Divorce or Immigration Law in RI contact Rhode Island Criminal Defense Attorney John E. MacDonald at 401.421.1440.

To learn more about John MacDonald, please visit his website at AggressiveLegalServices.com.

MA Sex Crime and Child Pornography Involves Overseas Victims

Federal Authorities Prosecute Sex Crimes Involving Children Overseas

by Samuel Goldberg

Yesterday, Attorney Sam's Take began discussing the plight of a certain Mr. Galant (hereinafter the "Defendant") in connection with certain federal criminal allegations which allegedly took place in the Dominican republic. They involved various sex crimes involving children.

Over the last years, we have discussed many federal cases and how they usually built. If you take the international aspect of this matter out of it, this case seems to be a typical federal prosecution. Not that the Commonwealth never uses such tactics, but the federal prosecutors have built it to an art form.

Just tell me you haven't heard this one before...

Suspect A comes into contact with law-enforcement. Suspect A is in possession of stolen materials. Suspect A is in trouble. However, suspect A says that she knows about suspect D, and suspect D has committed even greater crimes. And, by the way, suspect A is a critical witness against suspect D.

Isn't that what happened in this case? The 14-year-old young lady (Hereinafter the "Girl") Was found in possession of the Defendant's credit card and withdrawing money from his account. She then explained how he had apparently broken their agreements and had illicit sexual relations with her and a couple of friends.

    "But Sam, are you saying that the only evidence against the defendant is what the complainant said happened?"

No. Apparently, photographs were seized which reflected the Girll in positions which made the photographs child pornography. Further, I would imagine that federal investigators were able to find other evidence which supported the Girl's claims. An example of this would be airline tickets that the Defendant used on his trips to the Dominican Republic. .

However, the start of this information leads back to the Girl. Further, without her testimony, these prosecutions cannot be made successfully.

"I was under the impression that the case is only prosecuted in the jurisdiction in which it happens. In other words, Massachusetts would not prosecute a case where the fax took place in California. Here, it seems like the United States is prosecuting a case where the facts occurred, or allegedly occurred, in the Dominican Republic. What gives?"

You are correct, generally. As with most things, there is no "always" or "never" in the criminal justice system. There are exceptions. There are certain areas in which the United States will prosecute someone for actions they allegedly took in another country. Many of these types of cases also are subject to treaties between countries. The sex trade, when it involves children, is one such area. Further, some of the allegations I said to have taken place in the United States.

I should point out however, this would not be the first time that a United States citizen was prosecuted for apps he allegedly did overseas. In fact, it was not so long ago, where someone was tried and convicted of very similar crimes, only, in that case, involving little boys.

I have often told you that, because of computers and the Internet, the United States has become smaller in terms of the sharing of information. One state can easily share information with another state these days. Law enforcement is generally on top of those developments. As time goes by, particularly when it comes to crimes which are getting a lot of attention, I believe you will see that the world becomes a smaller place for the same reason.

Of course, all criminal prosecutions have their issues and weaknesses. In cases like this, there are even more such issues. There are issues of reality, such as getting the Girl, and perhaps her friends, to come to the United States to testify. The more complicated the case, the more there I'll likely to be issues which should be examined by defense counsel.

And they will be. Assuming that defense counsel is aware to look for them.

That's where your choice of an experienced criminal defense attorney comes into play.

But then, I am now being repetitive. And if you don't know my message on that subject by now, you're just not reading.

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If you have questions about this post or are interested in Criminal Defense, Divorce or Immigration Law in RI contact Rhode Island Criminal Defense Attorney John E. MacDonald at 401.421.1440.

To learn more about John MacDonald, please visit his website at AggressiveLegalServices.com.

First Degree Sexual Assault Testimonial

First Degree Sexual Assault Testimonial

“Attorney John MacDonald was instrumental in challenging and proving the innocence of my nephew, who would have otherwise been given a very serious sentence for a first degree sexual assault charge he did not commit. Through his incredible focus and attention to detail, Mr. MacDonald was able to expose every inconsistency and misrepresentation of the truth leading to a verdict of not guilty and great relief to our family. We wouldn't trust anyone else with a case of this magnitude.”  Linda

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If you have questions about this post or are interested in Criminal Defense, Divorce or Immigration Law in RI contact Rhode Island Criminal Defense Attorney John E. MacDonald at 401.421.1440.

To learn more about John MacDonald, please visit his website at AggressiveLegalServices.com.

Sexual Assault Accusations

The laws in the State of Rhode Island are very clear on sexual assault and what constitutes the various degrees of sexual assault. 

Unless you are an attorney however, you have no way of knowing how to deal with a sexual assault accusation.

It is vital that you hire an experienced criminal defense attorney if you have been accused or are being investigated for any kind of sexual assault. You may be tempted to try to handle the situation on your own, particularly if you're innocent of any wrong-doing.

There are several reasons why hiring an attorney first is the safest and most secure way to assure that you are dealt with fairly, and that the investigation is done properly without undue influence by the investigator. The main reason is that your attorney will be able to act as a liaison for you and law enforcement so that you don't say or do anything that could be taken in the wrong way.

Even people who are innocent of wrong-doing can make grave errors in judgment in such a stressful situation, and say things that could be taken out of context and used against them. Investigators are trained to recognize various facial expressions and speech inflections and may use anything you say against you at a later time.

If you are faced with having to listen to and respond to an investigator, listen quietly and tell them that you will need to talk to your attorney before you can answer any of their questions. If you do not already have an attorney, you need to contact one immediately.

RI Criminal Defense Attorney John E. MacDonald has extensive experience defending sexual assault cases of all kinds and can provide you with the highest quality legal representation.

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If you have questions about this post or are interested in Criminal Defense, Divorce or Immigration Law in RI contact Rhode Island Criminal Defense Attorney John E. MacDonald at 401.421.1440.

To learn more about John MacDonald, please visit his website at AggressiveLegalServices.com.

Post Conviction Relief Attorney in RI

A criminal conviction can have serious repercussions for you if you are here in the United States as an immigrant. 

In many cases, criminal charges can bring the possibility of deportation and removal proceedings if you are found guilty.

The post-conviction relief process may be the only recourse available to you under certain circumstances.

A conviction can keep you from obtaining immigration benefits, and can contribute to the risk of your deportation.

John E. MacDonald, a RI Immigration attorney is an expert at post-conviction relief cases. Attorney MacDonald has successfully defended clients in countless situations where the precedent of Padilla v. Kentucky has been applied.

Attorney MacDonald has devoted a substantial amount of his time to learning everything he can about this landmark case and how it may be applied to vacating criminal convictions, and preserving Immigration status.

Under post-conviction relief statutes in RI 10-9.1-1(a), your conviction must be in violation of either your US Constitutional rights, or the RI Constitution or the laws of this state. It will be up to you and your attorney to prove to the court that you have a valid claim for post-conviction relief, and that your prior conviction should be vacated. You will need to prove this to the court by a preponderance of the evidence and the Attorney General will have the opportunity to challenge the petition presented.

One very important argument that can be presented to the court is that at the time you made your plea agreement, you were not informed that the conviction would have consequences upon your Immigration status.

Another argument can be made in instances where you did not understand the plea agreement you were entering into and what it would entail.

Even if the Court decides to vacate your conviction however, you will still need to defend yourself against the original charges. Navigating the criminal justice system can be nearly impossible on your own.

As an experienced RI post-conviction relief attorney, John E. MacDonald will provide you with the best possible representation for your petition, and legal defense for any charges remaining after the conviction is vacated. Contact the office now at (401) 421-1440 for a free consultation or more information.

To learn more about John MacDonald, please visit his website at AggressiveLegalServices.com.

RI Stalking Penalties

Rhode Island Stalking Penalties

A first-offense <strong>stalking</strong> conviction is a misdemeanor that may lead to fines up to $500 in addition to imprisonment of no more than one year. A second offense stalking conviction is a felony which may include up to ten years imprisonment and up to $10,000 in fines.

Long-Term Effects

The long-term effects of a stalking conviction go beyond criminal punishment and may remain on your record for the rest of your life if you are not eligible for an expungement. Criminal offenses on your record make it difficult for employers to hire you and nearly impossible for you to gain entry into the fields of education, medicine, or law.

Defending a Stalking Charge

Defending a stalking charge in court can be challenging due to the fact that very little evidence is necessary to obtain a conviction. Evidence may consist of little more than eye-witness testimony; which may be enough to convince a jury even without physical evidence.

If you have recently been arrested and charged with criminal stalking in Rhode Island, contact Criminal Defense Attorney John E. MacDonald at (401) 421-1440 for a free consultation and more information.

To learn more about John MacDonald, please visit his website at AggressiveLegalServices.com.

Robbery Case Results

Criminal Case Results from John MacDonald

May, 2012:

Client found NOT GUILTY of ASSAULT WITH INTENT TO ROB.

This charge is Rhode Island’s equivalent of attempted robbery.

In a jury waived trial, client admitted his guilt in assaulting another individual but adamantly denied he ever attempted to rob.

After trial, client was acquitted of the felony attempted robbery charge and instead found responsible for the lesser included assault charge.
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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Drug Trafficking in Rhode Island

Narcotics Trafficking in Rhode Island

Drug trafficking is generally defined as the sale and distribution of illegal substances such as heroin, LSD, MDMA (ecstasy), marijuana, steroids, cocaine, PCP, and methamphetamine.

In many states, drug trafficking falls under the category of "Organized Crime", which has the potential to increase the severity of any penalties issued after a conviction.

Although penalties for federal drug trafficking convictions vary based on the state in which the crime takes place, it is both a state and a federal crime. Punishments often depend on the substance, as well as the quantity of drugs involved. Because drug trafficking is closely associated with organized crime, the state of Rhode Island litigates drug trafficking crimes with the intent to prosecute offenders to the fullest extent of the law.

In addition to the possibility of serious prison time, a drug trafficking conviction also has the potential to remain on your record for the rest of your life, making it difficult to attain employment, while simultaneously leading to the loss of personal property, denial of federal benefits, and the loss of real estate.

Federal Drug Trafficking Penalties

• First Offense Marijuana Distribution (1,000 kg or more), Not less than 10 years.
  
• First Offense Cocaine Distribution (5 kgs or more mixture) Not less than 10 years.
  
• First Offense Heroin Distribution (1 kg or more mixture) Not less than 20 years.
  
• First Offense LSD Distribution (10 gms or more mixture) Not less than 10 years.
  
• First Offense Methamphetamine Distribution (50 gms or more) Not less than 20 years.
  
• First Offense PCP (10 - 99 gms pure or 100 - 999 gms mixture) Not less than 20 years.
  

If you have been charged

A drug trafficking charge has the potential to destroy your life; which is why you should contact an experienced attorney before speaking to anyone involved with law enforcement agencies such as the FBI, DEA, or police department.

If you have been officially charged with drug trafficking or are currently under investigation in the state of Rhode Island, Criminal Defense Attorney John E. MacDonald will provide a comprehensive and tenacious defense in both state and federal courts.

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Criminal Defense Attorney John E. MacDonald Secures Precedent for Deferred Sentence Expungements in RI

Rhode Island Deferred Sentence Expungements

April 2012 – Providence RI – Providence RI Criminal Defense Attorney John MacDonald has secured a precedent for helping clients resolve an issue in a deferred sentencing expungement in Rhode Island.

If you were granted a deferred sentence in Rhode Island prior to 2011, the recent changes in the interpretation of this law may prevent you from expunging your record under the guidelines of your agreement.

As a result of the Supreme Court’s recent decision, all defendant’s with a deferred sentence secured before 2011 cannot expunge it after its five year period ended. Currently, those who obtained deferred sentences prior to 2011 must wait an additional ten years to expunge their criminal record.

Attorney MacDonald has recently developed a mechanism to expunge these records immediately.

The filing of post-conviction relief allows the original deferred sentence to be opened. Once open, the conviction can then be dismissed and immediately expunged. He has secured this result already for multiple clients.

When asked what this means for those who fall between the old law and the new precedent, Attorney MacDonald said, "Unless you are pro-active and file post-conviction relief to enforce the expungement you bargained for and earned, you will be stuck with a felony conviction for the next 10 years”.


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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Intent to Rob Case Results

John MacDonald Case Results

May, 2012.  Client found not-guilty of assault with intent to rob. 

This charge is Rhode Island’s equivalent of attempted robbery.

In a jury waived trial, client admitted his guilt in assaulting another individual but adamantly denied he ever attempted to rob.  After trial, client was acquitted of the felony attempted robbery charge and instead found responsible for the lesser included assault charge.

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

Stalking in Rhode Island

Stalking in Rhode Island

If you have recently been charged with criminal stalking in the state of Rhode Island, its important to know that it can be difficult to defend against such charges in a court of law. The reason stalking cases can be challenging is because evidence typically consists of little more than witness testimony, and lacks any physical evidence to corroborate a story. Despite a lack of hard evidence, the act of stalking conjures strong feelings in most individuals, and a simple accusation can be enough to land a conviction.

What is Stalking?

The state of Rhode Island defines stalking as unwanted harassing, contacting, or meddling with another individual against their will. Stalking often consists of obsessive behaviors such as unwanted: 

• Following 
• Waiting 
• Calling 
• Emailing 
• Leaving written notes 
• Text Messaging 
• Leaving objects 
• Video Voyeurism

While most of these behaviors are common in any social environment, it is important to realize that they may be misunderstood or frightening to another individual, and in certain cases what may begin as innocent intentions, end with criminal charges. The penalties for a stalking conviction can be very serious, and it is important that you contact a criminal defense lawyer immediately.

If someone is stalking you.

If you or anyone you know are concerned that someone may be stalking you, it is imperative that you dial 911 and contact the authorities immediately. It is also important that you do not tamper with or destroy any evidence by cleaning, discarding, deleting or modifying it in any way until instructed to do so by the authorities.

Stalking convictions in Rhode Island

First offenders convicted of stalking in Rhode Island will be charged with a misdemeanor, pay fines not exceeding $500 and possible imprisonment not exceeding one year. Second offenders will be charged with a felony, including up to two years imprisonment and up to $6,000 in fines.

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Expungement with Deferred Sentence in RI

More Expungement Results from John MacDonald

March 2012: 

Client received a deferred sentence 7 years ago.  He tried to expunge it but was told that that he must wait an additional ten years. 

Attorney MacDonald was retained to file post-conviction relief and vacate the plea.

A post conviction relief petition was filed and after hearing, plea is vacated, charge dismissed and the matter sealed from his criminal history. 

Client now has the clean criminal history he was promised when he agreed to the deferred sentence.


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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Motion to Suppress Granted

Criminal Defense Attorney John MacDonald Results

January, 2012:

Attorney MacDonald’s Motion to Suppress all evidence seized by Providence Police during a car stop was granted by a Superior Court Judge. 

Client’s charges of possession of cocaine are now subject to dismissal.

The basis of the motion was the lack of probable cause to stop the vehicle and search the passengers.

The Superior Court judge agreed and all evidence seized is no longer admissible at trial.

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Lawyer Jailed in Contempt After Taking Fifth

"Law Firm Says Judge Jailed Defense Attorney for Telling Client to Take the Fifth at His Arraignment"

by Martha Neil

A Michigan criminal defense lawyer spent about four hours in jail on Friday after being held in contempt for telling a client to assert his fifth amendment right against self-incrimination at his arraignment.

Attorney Scott Millard, 29, who works for Miel & Carr, was supposed to be jailed until Monday. However, he was released Friday after Ottawa County Circuit Judge Edward Post issued an emergency stay of Hudsonville District Court Judge Kenneth Post's contempt order, according to the Grand Rapids Press and the Holland Sentinel.

The articles don't explain whether the two judges are related to each other.

Post apparently had sought information about the 20-year-old client's drug use to determine appropriate bond conditions. However, Millard reportedly told him not to answer, because he might incriminate himself.
Read more HERE

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Computer and Internet Crimes

Computer Crime

Computer Crime may encompass such activities as gaining unauthorized or unlawful access to a computer; changing or stealing information from a computer; contaminating or otherwise introducing a foreign program or destructive process to a computer system; using encryption or a computer to defraud or commit a crime; altering email information regarding computer sources and IP addresses; and using an information service from a pay provider without permission.

In addition to these strictly computer related criminal offenses, there are any number of activities one may engage in while online that would also be considered computer related crimes, though without the use of a computer, would simply be labeled as criminal offenses anyway.

Some of these kinds of crimes include Internet child pornography and various crimes involving sexual predators, all kinds of Internet piracy, cyber-based terrorism, and computer hacking or intrusions, among many others.

In order to understand the severity of these kinds of criminal activity, you must remember that these crimes are treated with the same diligence as non-computer related similar crimes are; just because the Internet has acted as a buffer-zone, does not make the activity any less illegal. In fact, in most Internet related criminal matters, the involvement of the FBI and CIA is almost a natural expectation, since these crimes can be considered global in nature and are bound to affect more than a few local people in their commission.

There is, however, still the possibility for grave errors and mistakes in judgment when it comes to pinpointing and located the perpetrators of many Internet crimes. The procedure is not foolproof, and much like the use of DNA evidence, has its limitations. At no time should you discuss anything, other than your name, with any Federal Agent who may question you regarding your involvement in computer related or Internet crimes without the advice and counsel of an experienced criminal defense attorney.

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Federal Criminal Discovery Rules Changing

Discover Changes

In criminal defense matters, nothing is more important to the client’s case than the quality of the information you receive from the state. The current situation very often involves late or missing discovery and hinders adequate representation of clients charged criminally in the process. The following article discusses the proposed changes to the discovery law being contemplated on the Federal level and what that would mean for criminal defense attorneys and prosecutors in particular.

Federal Judiciary Divided Over Changing Criminal Discovery Rule

Federal judges are divided over the necessity to change the rules of criminal procedure to put a greater emphasis and burden on prosecutors to turn over favorable information to defense lawyers, a Federal Judicial Center report concluded.

The center, the research arm of the judiciary, surveyed all U.S. Attorney’s Offices, thousands of defense lawyers and federal and magistrate judges to assess the merits of a proposed amendment to Rule 16, which governs discovery in criminal cases.

The FJC said 43% of about 1,500 judges completed the online survey, which was conducted last year. Eighty-five of the 93 U.S. Attorney’s Offices participated in the review. More than 5,000 private criminal defense lawyers and federal public defenders provided their assessment.

The judiciary was evenly split on the need for amending the rule. But judges in districts with local rules or standing orders that require broader disclosure of information than what’s required in Rule 16 indicated greater support for a rule change than other judges in the judiciary. The Justice Department opposed a rule change. More than 90% of the defense lawyers who responded favored a change.
The two most frequent disclosure violations among prosecutors, judges reported, were the failure to provide favorable information on time and the scope of the disclosure to the defense.

Judges also reported they rarely hold an attorney in contempt and infrequently report a prosecutor’s conduct to the DOJ’s Office of Professional Responsibility, bar counsel or other disciplinary body.
The survey also said that more than 60% of judges said they did not have a case in the past five years in which a prosecutor or defense lawyer failed to comply with disclosure obligations.

In 2009, Judge Emmet Sullivan of U.S. District Court for the District of Columbia wrote to the Judicial Conference criminal rules committee asking the group of lawyers, judges and law professors to reassess, for a second time in recent years, an amendment to the rule.

Sullivan was the trial judge who oversaw the Justice Department’s botched prosecution of former Alaska Senator Ted Stevens. Sullivan called the Stevens case one of the most shocking examples of prosecutorial misconduct he’d ever seen during his time on the bench.

DOJ officials tout what they call a "comprehensive" approach to discovery reform in arguing against a rule change.

The department early last year issued new discovery guidance to all federal prosecutors. The memos, issued by then-Deputy Attorney General David Ogden, encouraged “broad and early” discovery.

Also, the department announced its intent to provide more training for prosecutors.
Copyright Mike Scarcella

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Domestic Assault and Domestic Violence Need Attention

Domestic Assault Issues

Domestic assault can have serious and far reaching effects on families of all types, and from all backgrounds of society. The damaging influence of being a member of a family where there is a standard set for violence in the home, is felt throughout life in the form of an inability to manage one's own affairs, fear of relationships and commitment, and the potential to become a violent transgressor in deference to either a parent or sibling who set the example when you were younger.

Many times domestic assault arises because of a simple lack of communication in the home, and a misunderstanding of how to handle and direct anger when it is felt as an emotion. A clearer understanding and some key tools for handling anger are typically a good start to helping heal the family unit, and eventually helping to reunite the members into a more healthy environment shared together.

There are situations however, where domestic assault is a result of drug or alcohol abuse and the violent behavior that often accompanies their use. If this is the situation, seek immediate intervention for yourself and any children that share the home with you in the form of drug or alcohol counseling, family support, or detoxification programs to help you put your life back together, and protect your loved ones from any harm that you may do to them and later regret.

It is only too easy to lose your temper and cause serious, irreparable harm to the people you love in a moment of heated temper or aggression. Husbands and wives have died, harmed their children, and themselves, only to calm down later and be crushed and devastated by their actions against their loved ones. There is no other way to combat domestic violence than by opening yourself to counseling for the issues that are driving you to behave violently in the first place.

If you are brought before the court on criminal charges for domestic assault, you will not only be sentenced to jail time in most instances, but will also be required to attend to the issues beneath the aggression and anger and seek help for yourself. Don't wait until you need the services of a criminal defense attorney to preserve your right to freedom, if you are prone to domestic violence, seek help immediately.
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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Criminal Defense Attorney and Criminal Defendant Rights

The role of Padilla v. Kentucky continues to be a pertinent decision making tool in any discussion about the rights of criminal defendants within our criminal justice system. The following article speaks to the repercussions of this landmark decision.

Padilla v. Kentucky and the Role of Criminal Defense Representation

May 3, 2011

Since the U.S. Supreme court decided Padilla v. Kentucky in early 2010, the role of criminal defense representation related to counseling clients about the broader consequences of criminal convictions has been under scrutiny.

Since the U.S. Supreme court decided Padilla v. Kentucky in early 2010, the role of criminal defense representation related to counseling clients about the broader consequences of criminal convictions has been under scrutiny. The American Bar Association (ABA) used Padilla as a starting point to form a task force in late 2010 to study the impact of the case.

While the outcome of the study could directly affect how current and past criminal cases are handled, the main practice consideration for criminal defense attorneys, particularly in New York, is to understand and explain conviction consequences more fully to their clients.

Padilla v. Kentucky

In Padilla, the Court found that a criminal defense attorney exhibited "constitutionally deficient" representation when he did not counsel a non-citizen client about the deportation consequences of a guilty plea.

Jose Padilla resided in the United States as a legal permanent resident for more than 40 years. He was even a recognized Vietnam War veteran. Padilla was charged with transporting marijuana in Kentucky, which put himself at risk for deportation because he was not a citizen. Padilla's lawyer advised him to enter a guilty plea under the assumption that his many years living in the U.S. would offset his immigrant status. Immediately following his guilty plea, Padilla was ordered to be deported.

Padilla claimed during his post-conviction hearing, which is where a defendant asks to have a conviction overturned, that his Sixth Amendment right to effective assistance of counsel was violated because of his attorney's advice was incorrect.

Although the Kentucky Court of Appeals sided with Padilla, the Kentucky Supreme Court denied Padilla's request to set aside his guilty plea. They stated that the Sixth Amendment "does not protect defendants from erroneous deportation advice because deportation is merely a 'collateral' consequence of a conviction." The U.S. Supreme Court, however, decided in favor of Padilla. The Court held that criminal defense attorneys must advise their clients when a criminal plea bears a risk of deportation, because of the seriousness of this consequence due to pleading guilty to a criminal charge.

Padilla's conviction was therefore overturned because his lawyer did not inform him about the likelihood of deportation after pleading guilty. This advice was deemed ineffective, which did infringe on Padilla's Sixth Amendment rights.

Since the opinion was published in March of 2010, the case has been cited in other criminal convictions where guilty pleas, even by U.S. citizens, resulted in negative consequences like termination of employment, loss of child custody, removal from housing and as evidence in civil lawsuits. This shows that while the Padilla ruling specifically addresses lawyers representing immigrant clients in criminal proceedings, the case has had a wider impact on criminal defense representation and expectations as a whole.

ABA Task Force

In December of 2010, the ABA's criminal justice section formed a task force to study the impact of Padilla v. Kentucky and related rulings on the practice of criminal defense. The task force will not only focus on the client advising obligations the Padilla case places on criminal defense attorneys, but it will also address how lawyers can achieve the broader role and responsibilities now expected of them.

The ABA criminal section chair, and member of the task force, is law school professor Bruce Green, who stated in an interview with the New York Law Journal that "Padilla raised the level of consciousness. It has reminded lawyers that they must learn about, and advise clients about, the impact of a guilty plea on their immigration status and in other significant ways beyond sentencing."

Green also indicated that the group has gathered significant data on criminal cases that resulted in specific consequences directly related to a plea or conviction.

The task force will continue to analyze what further assistance lawyers can give to advise clients about any possible consequences, but in the meantime Green thinks that "Criminal defense lawyers might help by broadening the scope of their representation beyond the criminal case or by making referrals to, and collaborating with, other professionals. The task force will study how lawyers and their offices address these situations, often in the face of time and resource limitations."

Practice Considerations

Specifically in New York, the Padilla v. Kentucky decision has increased the number of requests to overturn convictions and apply Padilla retroactively because of insufficient legal advice about entering guilty pleas and immigration consequences. It has also caused both prosecutors and defense attorneys to offer up and seek out more options and information about what a particular conviction may do to a non-citizen living and working in the U.S.

While Padilla has had a direct impact on practicing criminal defense in New York, it is unknown whether the results of the task force will be as profound. The main outcome may be that defense lawyers should advise clients about any legal or non-legal consequences, such as termination of public housing, when entering a guilty plea, which is a notion that has not yet been applied in a New York court.

For criminal defense attorneys, the most important lesson both Padilla and the ABA task force teaches is that defense lawyers need to understand their clients' situations and be willing to fully explain the consequences of any pleas or convictions before they are entered. If you were recently charged with a crime and are either a U.S. citizen or non-citizen in New York, contact an experienced New York criminal defense attorney with immigration knowledge to advise you about all possible consequences and handle your case properly from the start.

Article provided by Mark J. Sacco

Visit us at www.mjsacco.com
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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

Rhode Island Personal Injury Involving Salmonella Outbreak

RI Criminal Defense Attorney's routinely handle cases involving personal injuries to clients through the negligence of others. The case below involves salmonella poisoning through a breakout stemming from contaminated pastries from a local bakery, death resulting.

Rhode Island Salmonella Outbreak has First Fatality; Sickened At Least 39 Others

Personal Injury Lawyers News
by Nicole Howley

Providence, RI — One person has died as a result of salmonella outbreak that already sickened dozens of people in Rhode Island. The exact source of the outbreak is still under investigation, but authorities reported that those who became sick said they had eaten a zeppole and/or baked good made at Johnston’s DeFusco’s Bakery, reported WPRI.

Just one day after the Rhode Island Health Department reported that at least 33 people were sickened as a result of the salmonella outbreak, the news of the first fatality was received.
By Tuesday afternoon, 39 people were affected and 24 of them were hospitalized with 21 being lab confirmed.

"An individual who died tested positive for salmonella associated with the outbreak," said Health Department spokeswoman Annemarie Beardsworth to WPRI.

The victim was identified as a Providence County man in his 80s. He tested positive for the same strain of salmonella associated with the outbreak, but it was not confirmed that the bacteria was the cause of his death. It is also unknown if the man consumed any pastries from the bakery.
Family members of the victim reported that the man had underlying health conditions when he passed away on March 23.

Health inspectors arrived at DeFusco’s, who closed voluntarily, and found pastry cream stored at unhealthy temperatures and baked shells packed in unsanitary boxes, which could have been possibly exposed to contaminated raw egg.

Beginning Tuesday, March 29, the public can contact HEALTH's Emergency Information Line for further information at 401-222-8022 which will be staffed Mon-Fri from 8:30 a.m. - 4:30 p.m.
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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.

More Mothers Paying Child Support Than Fathers Says Report

More Mothers Paying Child Support

In the case of child custody and child support, more and more fathers are obtaining physical placement of their children, leaving more and more mothers in the position of having to pay child support for their minor children. The rise in this trend began with the decline of stay-at-home moms as more and more women were forced to enter the workforce to help balance the housing budget within the marriage.

As women were lured away from the nest, men were no longer the sole bread-winner, creating a gap in childcare at home, and the massive growth in the child care industry in general. With men reaching the peak in their careers and able to work less hours, while still making substantially more money than women in similar position, this left more fathers able to be home for the children.

Many women were then left with the decision to continue in the careers to which they had devoted a good portion of their lives, or resign themselves to working at less demanding jobs in order to balance out the parenting roles and be home as well. As divorce rates climbed in 2008, another trend emerged involving more moms paying child support, with increases in the amounts they were required to pay, as well as fewer fathers on the opposite side.

More Moms Paying Child Support Say Top Divorce Attorneys

Latest National Survey also Reveals Increase in Payment Amounts

CHICAGO, IL, October 1, 2008 — More women are paying child support these days, according to the latest survey of the American Academy of Matrimonial Lawyers (AAML). In all, 55% of the respondents have cited an increase in the number of mothers who have been assigned to make child support payments over the past five years. Additionally, 42% of the divorce attorneys have seen the size of overall payment amounts rise during the same period of time.

“The changes in our society are almost always reflected in divorce courts and the legal system. The issues involved with child custody payments are certainly not an exception,” says James Hennenhoefer, president of the AAML. “If one spouse is better suited to provide financial care, it is in the best interests of the court and all parties involved to put the needs of the child first.

Interestingly enough, results from the survey revealed that only 1% of AAML members have seen an increase in fathers making child support payments during the past five years. There was a response total of 44% who noticed no difference.

In addition to the question regarding which party is now making child support payments, the divorce lawyers have also cited changes in the size of those payments. Overall, 42% of the respondents said that the amount a spouse must pay has actually increased over the last five years. Only 14% said the payments have gotten smaller, while 44% have cited no change in payment totals during the five year time frame.

Read the full article HERE

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If you have questions about this posting or are interested in Criminal Defense, Divorce, or Immigration Law in RI contact Rhode Island Criminal Defense Lawyer John E. MacDonald at 401-421-1440.

To learn more about The Law Office of John MacDonald, please visit his website at AggressiveLegalServices.com.