Criminal Defense Success Stories

Kidnapping and Rape Charges Dismissed

Ali was arrested for kidnaping and raping his wife. His wife alleged that she had been held against her will in a room in her house for several days and repeatedly raped by her husband. When Ali was referred to our office and attorney FitzGerald reviewed the police reports, he noticed that the victim alleged to have been locked inside a bedroom in their apartment in Natick, MA. This seemed odd to Attorney FitzGerald, so he decided to look at the city ordinances and discovered that the ordinances only allow locks to be installed on the inside of bedroom doors. In addition, the police report did not mention any illegal locking system on the outside of any bedroom door. Attorney FitzGerald then inquired about the alleged victim’s daily routine to see if he could obtain evidence of contact outside her apartment during the days she claimed to be kidnapped. This revealed that she had a membership at a local gym she frequented. Attorney FitzGerald proceeded to subpoena the gym’s attendance records and the evidence showed she had visited the gym to work out during the days she claimed to be kidnapped. When this evidence was presented to the court and attorney FitzGerald cross examined the alleged victim, he was able to prove that she was lying and she lost all credibility. As a result all the criminal charges against our client were dismissed.

Possession of a firearm charge dismissed

Our client was removed from the vehicle and the officer recovered the illegal firearm from under the passenger seat. Our client was arrested and charged with the illegal possession of a gun, a felony which has a mandatory jail sentence of 2 years.

After a careful review of the police report which described the gun and the location in which it was found, Attorney FitzGerald determined that because the car was not registered to our client and the gun was hidden in an area beyond the reach of our client in the driver’s seat, the charge should be dismissed as the firearm was not under his “custody and control.” He presented a Motion to Dismiss at the Superior Court and after a hearing, the motion was granted by the Judge and the case was dismissed.

Drug Trafficking Charges Dismissed

David had a criminal record from when he was young and was regularly under preliminary investigations by the local authorities. One winter evening, he arrived with some friends at a restaurant at which some police officers were eating. Our client and his friends parked the car and entered the restaurant and were seated at a table. The officers made an initial inquiry of our client about what they were doing and what they had in the vehicle. Our client and his friends stated that they had some cleaning equipment in the car and were going to work.

The officers suspected that the response was not genuine and called for a drug dog unit to come to the restaurant. It was snowing and with this excuse, the officers opened the back of the SUV without permission from our client or his friends, to shield them and the drug dog from the snow. The drug dog entered the back of the car and discovered some drugs hidden in the cleaning equipment.

Following this incident our client was arrested and charged with drug trafficking due to the large quantity of cocaine found in the car. Attorney FitzGerald believed that the police conduct was improper, as the police did not have the lawful authority to open and enter the car without permission of its owner or a court order. He filed a Motion to Suppress Evidence with the Superior Court. After an Evidentiary Hearing, the Judge granted attorney FitzGerald’s motion and ordered that the drugs illegally recovered from the car could not be used in court, and as a result the drug trafficking charges were dismissed.

Assault with a Deadly Weapon and Attempted Murder

Leo lived in a multifamily house in East Boston and a neighbor who lived downstairs had borrowed some money from his parents. The neighbor moved away without paying back the money. When Leo learned where his old neighbor now lived, he went to his house to collect the money owed to his parents. There was an altercation and the old neighbor ended up stabbed in his chest. Leo was arrested and charged with assault and battery with a deadly weapon and attempted murder.

The neighbor claimed to the police, that Leo had come to his house demanding drugs, and when he had told him he had no drugs, Leo stabbed him. Leo claimed that when he went to the man’s house to collect the debt for his parents, the man told him that he was going to the kitchen to get the money and instead he came back with a knife and swung the knife at Leo. Leo, in his defense, grabbed the man’s hand with the knife, pushing it away from him, and it stabbed the man’s chest. Leo ran away because he was scared.

Leo’s family hired attorney FitzGerald for assistance. Attorney FitzGerald prepared a judicial order demanding the production of the neighbor’s medical records. When he reviewed them along with the police reports and the statements of the neighbor, he saw a number of inconsistencies. The way the wound to the chest was made was consistent with a hand holding a knife and being turned back towards the body in self-defense, as opposed to the type of wound that would have been produced if Leo, who was right handed, had plunged the knife directly into the neighbor’s chest. When the case went to trial, the jury heard testimony from both the neighbor and Leo, as well as arguments from the prosecutor and attorney FitzGerald, the latter of which included information about the wound, the medical records, and the neighbor’s prior criminal and drug convictions. The jury returned a verdict of not guilty in favor of Leo.

Rape Charges Dismissed

Jay’s family sought Attorney FitzGerald’s assistance because Jay was detained in jail due to having been accused of rape. When the family originally visited attorney FitzGerald, they did not have in their possession a copy of the police report, so attorney FitzGerald requested that the family obtain this from the court, so that he could review it before he would agree to represent Jay. When the family returned with the police report, attorney FitzGerald agreed to take the case.

The police report indicated that the incident occurred in a vehicle while driving through the city of Boston. Attorney FitzGerald thought this was unusual and sought to obtain a statement from the driver in the car. After interviewing the driver, attorney FitzGerald learned that the incident actually had been recorded on video. Attorney FitzGerald was able to obtain a copy of the video and after submitting it to an expert to verify that it was an original and unaltered video, he presented it to the government as it demonstrated that it was a consensual act. Because the crime of rape requires evidence that the act was not consensual, the charges of rape were withdrawn by the government and dismissed by the Superior Court.

Theft from a Store Not Guilty

Julieta was a woman who had had some trouble with the police when she was young. Attorney FitzGerald had assisted her in the past with these problems and she had gotten an education and was now working and managing well. One day, when she was on her lunch break, she visited a local mall, selected a few things to purchase and proceeded to the checkout lane. She presented all of the articles that she was holding in her right hand, made those purchases and then exited the store. Once she was in the main area of the mall, security officers apprehended her because she had not paid for an article that was still in her left hand. When the police arrived, Julieta explained that she had merely forgotten the article in her left hand and volunteered to purchase the article. Instead of allowing her to purchase the article, the officer performed a background check and after seeing that she had previously been arrested, he proceeded to arrest her and charge her with theft. Once attorney FitzGerald was retained to represent her, he initially attempted to explain to the prosecutor’s office that this was simply a mistake by both Julieta and the store’s cashier to process the payment for all the articles. When the prosecutor’s office offered to accept her claim of guilt with only a sentence of probation, Julieta and attorney FitzGerald decided to present their claim to a jury. Attorney FitzGerald convinced the judge that Julieta’s prior record was not relevant to the present case and should not be admitted as evidence for the jury to see. After hearing testimony from the mall security guards, the police officers and Julieta, as well as attorney FitzGerald’s arguments that Julieta’s behavior was not criminal but merely accidental, the jury returned a verdict of not guilty in favor of Julieta.

Violation of a Restraining Order Charge Deemed Inproper

Ted had a difficult relationship with his former girlfriend Jen, who is the mother of his child. One day, Jen went to court and made a claim that she was afraid that Ted was going to physically hurt her and the court issued a restraining order but it was never formally delivered to Ted. Several days later, Ted was driving to Jen’s house to pick up his son as he had told her he would do in a telephone voice mail. When he arrived at her house, he was arrested and charged with several offenses including the violation of a restraining order. Attorney FitzGerald filed a motion to dismiss the charges in the superior court claiming that because Ted had not received formal notice of the restraining order, he could not legally have violated it. After hearing arguments from both attorney FitzGerald and the state prosecutor, the Superior Court judge, issued a ruling dismissing the charge of violating a restraining order. Subsequently, the Massachusetts State legislature, amended the restraining order statute to clarify what constitutes lawful service of a restraining order. This case was published in the Massachusetts Legal publication.

Not Guilty of Aggravated Rape and Approved Immigration Bond

One day in March, 2016, the police appeared at John’s house when he got home from work and arrested him.

When he was at the police station they told him that he was being charged with aggravated rape for an incident that, allegedly, occurred three months earlier. They also informed him that the person accusing him was his ex girlfriend and the mother of his children.

John was paying child support and had filed a complaint for child custody that was served on his ex girlfriend 4 days before she went to the police…. Read entire success story

Assault and Battery Criminal Trial Success Story and Immigration Court Case

After a fight outside of a bar, Roberto was arrested and charged with numerous charges, including assault and battery with a dangerous weapon, trespassing, and resisting arrest; after there was a fight outside a bar.  Unfortunately, at the time he was arrested, Roberto was not in lawful immigrant status and the immigration authorities took him into custody after he was released on bail on the criminal case.  His family came to our office after he had been detained for several months and it was clear the only way to get him released from jail was to have him found not guilty of the criminal charges and to identify an immigration benefit he could qualify for.

Attorney FitzGerald reviewed the police reports and met with Roberto in jail to discuss the incident.  Roberto was not a tall individual and was relatively thin.  In contrast, the victim was identified by Roberto and the police report as a big and heavy set man. Roberto claimed that he had actually been the victim of an assault by the larger man and he had escaped the fight, which is why he was found running away from the police on someone else’s property.

We prepared Roberto to testify at trial and we advised him that if he married his fiancée, who was a US citizen, and she filed an immigration residency petition for him, he may be able to be released from immigration custody, if we won the criminal case.  However, one significant problem: the rules in Massachusetts make it virtually impossible for an inmate to get married due to prison security concerns. We determined the only place where this marriage ceremony could be performed was at court during the criminal trial.  At our suggestion, Roberto’s fiancée obtained a marriage license and made arrangements for a justice of the peace to come to the court house during the trial.

The criminal trial began and the government’s witness/ alleged victim testified first.  The alleged victim made statements that were markedly different from those he had originally made to the police.  When attorney FitzGerald cross examined him, he stated that Roberto had knocked him down with a punch and then proceeded to kick his face with his boot 20 to 30 times.  The police report, however, contained no description of any mark or injury to the alleged victim’s face. When asked by attorney FitzGerald, the witness could not explain how it was possible that he did not receive any visible injury from such a violent assault.  At the conclusion of his testimony, it was clear that the witness was not the victim he claimed to be.

After the alleged victim’s testimony, the court took a lunch recess and during this time the marriage ceremony between Roberto and his fiancée was performed.  By the time the court came back into session, Roberto was a married man to a US citizen and he was now eligible to apply for US residency via his US citizen wife.  Roberto testified as to his version of the incident and after attorney FitzGerald’s closing remarks, the jury found him not guilty.  After we provided the immigration court the evidence of Roberto’s marriage to a US citizen, he was released and allowed to return to his family.

Vacating a Criminal Conviction and Immigration

Our client “John” had come to the US to get an education and to improve the living conditions of his family.  He was able to finish his education in nursing and obtain a good job where he enjoyed helping others. One day, all of that changed.  John was accused of sexual assault in criminal court.  A person he worked with claimed the assault occurred in the stairway of the clinic during their shift.  He found a lawyer who told him to accept a disposition under the Massachusetts law called “continuance without a finding”, which requires an “admission of sufficient facts” to conduct that meets the legal elements of the crime.  While he did not understand why he should admit to doing something that he didn’t do, he was assured that he would have no problems as long as he stayed out of trouble for one year.  Although he stayed out of trouble for more than a year, problems soon followed.  Because he was not a citizen of the U.S., John found himself being ineligible to remain in the U.S. with his family, since a “continuance without a finding” qualifies as a criminal conviction under the immigration law. In addition, John was required to register as a sex offender and was not even allowed to attend his own children’s school and sporting events.

At this point, John needed help with his immigration status and was recommended to our firm by a friend.  Upon reviewing the court records and police reports, it became clear to attorney Desmond P. FitzGerald that John had not committed the offense and that he could help him reopen the case (vacate the conviction) and to defend the case to prove his innocence.  This was not only necessary to allow him to remain in the US but it would also allow him to improve his quality of life.  Ultimately, our office was able to have his conviction vacated, to get the criminal charges dismissed by the court, and obtain permission from immigration for John to remain in the U.S., through a petition for legal permanent resident status.  John is now able to attend school events with his children and is no longer in fear of being deported and separated from his family.

Motion to Vacate Conviction and Reopen Criminal Case to avoid Immigration Problems

In 2006, our client “Manuel” was charged with operating a vehicle with a suspended license and waived his right to counsel with no idea how this charge could potentially impact his immigration status in the future. In 2010, Manuel was placed into removal/deportation proceedings before the Immigration Court and was ineligible to renew his Temporary Protected Status (TPS), as pursuant to the Immigration and Nationality Act, this conviction made him ineligible for TPS. After reviewing the client’s criminal dockets, Attorney FitzGerald noticed that Manuel had waived his right to counsel in one of the cases, but there was no indication that the waiver had been interpreted to the client in his language to ascertain he understood his rights and the consequences of relinquishing such rights.

After collaborating with the client to recall the events, collect all the relevant evidence in the case, and reviewing the Massachusetts practice and waiver of counsel rules, attorney FitzGerald determined that it was clear that our client had not understood his rights and filed a motion to vacate the conviction and reopen the case, which was subsequently approved by the Judge.  A new hearing was scheduled (five years after the original disposition date) and attorney FitzGerald obtained a favorable disposition of license suspension case (the charges were decriminalized) which did not negatively affect Manuel’s immigration status.  He now is eligible to present a TPS claim before the Immigration Court.

Citizenship Approval with Criminal Defense and Deportation Proceedings

Our client, “Katerina” is a legal permanent resident who applied for citizenship. At the citizenship interview she informed immigration that she had been convicted many years before for assault and battery with a dangerous weapon. Immigration denied her citizenship application and had just notified her that she would be placed into removal/deportation proceedings, when she came into our office seeking assistance. After submitting a timely filed appeal to immigration, we determined that there were technical legal errors in the processing of the case, therefore her criminal conviction was in violation of her constitutional right to effective assistance of counsel.  Our Boston Criminal and Immigration lawyers submitted a motion to vacate the criminal conviction and reopen the case which was subsequently granted by the criminal court. After the case had been reopened, the case was successfully litigated so that the charges were dismissed. We informed immigration of the dismissed charges and the client was interviewed a second time to determine if the previous denial of her citizenship application should be changed. The deportation proceedings were stopped and Immigration granted her citizenship.

Residency Reinstatement with Criminal and Deportation/Removal Proceedings

Our client, “Peter”, had been a legal permanent resident of the United States for many years when he came into our office seeking assistance. He had traveled outside the US many times without any problems, but on his most recent trip, while attempting to enter the United States, he was stopped by immigration and his residency was terminated due to a criminal conviction from many years ago. Our client was placed into removal proceedings and faced being deported from the United States and being separated from his family.

After a thorough review of his situation our Massachusetts criminal and immigration attorneys realized that his criminal conviction was in violation of the individual’s statutory rights to receive “alien warnings” when tendering a guilty plea. The alien warnings ensure that the individual is accepting guilt with full knowledge of the consequences of the guilty charge. We quickly submitted a motion with the criminal court to vacate the conviction and reopen the criminal proceedings. The criminal court granted the motion to vacate and the criminal case was reopened. We represented Peter in the re-opened criminal case and it was successfully dismissed.  We informed the immigration court that Peter’s conviction no longer existed and the Immigration Judge dismissed the charges of removal/deportation, allowing him to remain a legal permanent resident of the United States.