William Smith in the News

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ATTORNEY SMITH WINS FIRST DEGREE MURDER APPEAL FOR CLIENT

From:  Boston Herald, September 2, 2014

Woman to be retried on murder charge after fire

Tuesday, September 2, 2014
BOSTON — A woman who was convicted of murder following a deadly fire but complained statements she made to police shouldn’t have been used against her will be retried, prosecutors said Tuesday.

The state’s highest court, finding that police didn’t honor the woman’s request for a lawyer, had ruled earlier in the day that prosecutors had to reduce the murder conviction or grant a new trial to the woman, who was blamed for setting a fire that killed a mother of four. The Supreme Judicial Court upheld Chiteara Thomas’ conviction for arson but said her first-degree murder conviction could not stand.

During Thomas’ 2010 trial, prosecutors said she used a cigarette lighter to start the 2006 fire after a dispute with a first-floor tenant. A third-floor tenant, Olinda Calderon, died of smoke inhalation, and several people were injured when they jumped from windows to escape.

Thomas, in her appeal, argued that the trial judge should have suppressed statements she made to Brockton police. She said she initially told police she wanted a lawyer but later agreed to talk to them without a lawyer after an officer implied that would be her chance to give her version of what happened.

The high court, which also overturned Thomas’ conviction on 13 counts of attempted murder related to residents of the building, agreed with her.

“Because the police officers here did not scrupulously honor the defendant’s right to cut off questioning until she had the benefit of counsel, and instead sought to persuade her to change her mind by suggesting that ‘lawyering up’ was costing her the opportunity to tell her side of the story, we conclude that … the statements the defendant made that day in response to that questioning should have been suppressed,” Justice Ralph Gants wrote.

Plymouth County District Attorney Timothy Cruz said prosecutors will retry Thomas on the murder and attempted-murder charges.

“This was a horrific fire that left victims, including small children, jumping from a burning building to save their lives,” he said. “There was overwhelming evidence that this defendant acted with deliberate premeditation to kill, including setting fire to a house filled with women and children at 5 o’clock in the morning.”

Thomas’ appeals lawyer, William S. Smith, said police lured Thomas into speaking to them after she said she wanted a lawyer.

“Here, there was much that understandably troubled the court, including the officer’s having, very arguably, chastised my client for her having invoked her right to legal counsel by accusing her of having lawyered up,” Smith said.

Thomas was 22 and homeless at the time of the fire. The first-floor tenant, Michelle Johnson, sometimes allowed Thomas and her boyfriend to stay in her apartment but had told Thomas to move out.

Thomas, angry that Johnson was preventing her from living with her boyfriend, repeatedly threatened to kill her and burn the house down, according to testimony at her trial.

On the day of the fire, a neighbor saw Thomas reach into a window on the first floor and then saw a reddish-orange glow from the windows and saw Thomas running away, according to testimony.

Author(s):

 

From:  Worcester Telegram & Gazette, July 10, 2014

Fitchburg man sentenced to time served; case tainted by drug lab scandal

By Gary V. Murray TELEGRAM & GAZETTE STAFF


WORCESTER — A Fitchburg man whose 2010 marijuana-trafficking conviction was called into question because of disgraced chemist Annie Dookhan’s involvement in the case has waived his motion for a new trial and been sentenced to time served. 

Matti E. Thomasian, 39, was sentenced to 3 years to 3 years and a day in state prison on Dec. 2, 2010, after being found guilty in Worcester Superior Court of trafficking in 100 to 2,000 pounds of marijuana. The conviction followed a bench trial. 

Mr. Thomasian later sought a new trial after it was learned that Ms. Dookhan, a state chemist accused of falsifying drug tests at the since-closed Department of Public Health drug lab in Jamaica Plain, was one of two chemists who analyzed and tested the marijuana in his case. 

Ms. Dookhan was sentenced to 3 to 5 years in state prison last year after pleading guilty to evidence-tampering and obstruction of justice charges. 

Judge James R. Lemire stayed Mr. Thomasian’s state prison sentence in October 2012 and released him from custody on $1,000 cash bail pending rulings on his motion for a new trial and his appeal of his conviction. 

After a hearing Thursday in Worcester Superior Court, Judge Lemire allowed a motion filed by Mr. Thomasian’s lawyer, William S. Smith, and assented to by Assistant District Attorney Timothy M. Farrell, asking that the 2010 conviction for trafficking in 100 to 2,000 pounds of marijuana be reduced to one for trafficking in 50 to 100 pounds of marijuana. 

While the original conviction called for a minimum mandatory sentence of 3 years in state prison, the minimum mandatory sentence for trafficking in 50 to 100 pounds of marijuana is 2½ years in state prison or 1 year in the House of Correction, Mr. Farrell told the court. 

At the request of Mr. Smith and the prosecutor, Judge Lemire sentenced Mr. Thomasian to 691 days in the House of Correction and gave him credit for 691 days already served. Mr. Smith told the judge his client was waiving his motion for a new trial. 

State officials said the actions of Ms. Dookhan, who falsified drug tests in an effort to make herself appear more productive on the job, may have tainted tens of thousands of drug cases and resulted in the release of hundreds of people convicted of drug offenses. 

Mr. Thomasian was one of three people arrested in 2007 in what authorities said was the planned delivery of about 350 pounds of marijuana from a warehouse in Wareham to Fitchburg. The drugs were intercepted by the federal Drug Enforcement Administration. 

One of Mr. Thomasian’s co-defendants is in default and the other was sentenced to a year in jail and given credit for time served after pleading guilty to a reduced charge of marijuana possession with intent to distribute. 

Timothy J. Connolly, a spokesman for District Attorney Joseph D. Early Jr., said Mr. Thomasian’s case was the only known Worcester Superior Court case in which the drugs were analyzed by Ms. Dookhan. 

 

From: Worcester Telegram & Gazette, October 23, 2012

Lab scandal fallout: Judge clears path for Fitchburg prisoner’s release

By Gary V. Murray TELEGRAM & GAZETTE STAFF
gmurray@telegram.com

WORCESTER — A judge has stayed the prison sentence of a Fitchburg man whose drug-trafficking conviction has been called into question because of former state chemist Annie Dookhan’s apparent involvement in the case.

Superior Court Judge James R. Lemire issued a decision today staying Matti E. Thomasian’s prison sentence of 3 years to 3 years and a day pending further court hearings and allowing his release from custody upon the posting of $1,000 cash bail.

Under the judge’s order, Mr. Thomasian is to appear in Worcester Superior Court within one day of his release to sign pretrial probation conditions. He is also to report to the Probation Department by phone once a week while out of custody.

Mr. Thomasian, 37, was sentenced on Dec. 2, 2010, after being convicted of marijuana trafficking. Arrested in 2007, he was one of three people charged in connection with what authorities said was the planned delivery of about 350 pounds of marijuana from a warehouse in Wareham to Fitchburg.

The drugs were intercepted by the federal Drug Enforcement Administration.

Mr. Thomasian’s lawyer, William S. Smith, sought his client’s release at a hearing Monday before Judge Lemire. Prosecutors opposed the request.

The drug certificates in the case were signed by two chemists, including Ms. Dookhan, who has been accused of falsifying drug test results and failing to follow protocols at the now-closed Hinton State Lab in Jamaica Plain.

The 34-year-old Franklin woman has pleaded not guilty to related obstruction of justice charges.

Contending that Ms. Dookhan tampered with evidence by adding known drugs to tests that turned out negative in order to get a positive result, Mr. Smith told Judge Lemire the weight of the drugs seized in his client’s case had been called into question.

Mr. Smith said Mr. Thomasian was expected to be paroled in December, but asked that he be released now on personal recognizance and that his sentence be placed on hold pending further court action.

Assistant District Attorney Paul F. Bolton opposed Mr. Thomasian’s release at yesterday’s hearing, saying Mr. Thomasian and his previous lawyer had stipulated that the substance seized in his case was marijuana. Mr. Bolton said it was his understanding the stipulation would apply to any future trial Mr. Thomasian might be granted.

Mr. Smith said the stipulation would never have been entered into if the problems at the Jamaica Plain drug lab had been known at the time.

“Upon review of the filings, the investigative reports, the arguments of counsel and the applicable law, the defendant’s motion to stay the further execution of his sentence pending a full and final execution of his motion for a new trial and/or direct appeal is allowed,” Judge Lemire wrote.

Similar hearings this week in Suffolk Superior Court in Boston have led to sentences being placed on hold in scores of cases in which drugs were tested by Ms. Dookhan.

Mr. Thomasian has been serving his sentence at the state prison in Concord and participated in yesterday’s court hearing via videoconferencing.

One of Mr. Thomasian’s co-defendants is in default and the other was sentenced to a year in jail and given credit for time served after pleading guilty to a reduced charge of marijuana possession with intent to distribute.

Mr. Thomasian’s case has been continued to Nov. 29.

From: Worcester Telegram & Gazette, October 23, 2012

In Worcester, judge ponders inmate release in state crime lab scandal

Drug lab taint cited in pot bust case

WORCESTER — A superior court judge will decide whether to release a Fitchburg man from prison after his conviction in a massive marijuana bust was contaminated by former state chemist Annie Dookhan.

The lawyer for Matti E. Thomasian argued today in front of Worcester Superior Court Judge James R. Lemire for his client’s release from Concord state prison because of tainted evidence certified by Ms. Dookhan.

Mr. Thomasian was one of three people charged in a massive October 2007 pot bust in Fitchburg. The marijuana originated in a warehouse in Wareham, but was intercepted by the U.S. Drug Enforcement Administration. The marijuana was delivered to Mr. Thomasian in Fitchburg.

On Dec. 2, 2010, a Worcester Superior Court judge sentenced Mr. Thomasian to 3 years to 3 years and a day in prison for marijuana trafficking. Mr. Thomasian, now 37, was sentenced to an additional six months in jail on a charge of conspiracy to violate drug laws. The sentence was to be served concurrently.

His lawyer, William S. Smith, said his client is scheduled to be paroled in December, but wanted his client’s sentence stayed. Assistant District Attorney Paul F. Bolton, supervisor of the drug unit for the Worcester District Attorney’s office, opposed the motion for Mr. Thomasian’s release.

“There is a stipulation as to the composition of the substance,” Mr. Bolton argued. “That stipulation not only as I understand it relates to the previous trial but related to any retrial.”

Mr. Thomasian gave up rights by stipulation, but the prosecution gave up something too, Mr. Bolton argued.

“The commonwealth did too, it destroyed 350 pounds of evidence based on that stipulation,” he said. The pot — even if it was low-grade — could be valued in upward of $350,000, Mr. Bolton said.

The drug certifications in the case were signed by two chemists. Ms. Dookhan’s name is on the certificates and it appears she is the one who tested the material.

If Mr. Thomasian’s lawyers knew about the alleged abuse by Ms. Dookhan at the state drug lab in Jamaica Plain, an agreement to sign a stipulation agreeing the seized drugs were in fact marijuana would never have occurred, Mr. Smith said. The stipulation was signed in 2011, he said.

“At that point nobody knew about this or people did, when you read the material judge, people at the lab knew,” Mr. Smith said. “The problem is they didn’t tell anybody.”

Mr. Smith also contended that Ms. Dookhan tampered with evidence by adding known drugs to tests that came out negative in order to create a positive result. That puts the weight of the seized drugs in his client’s case in doubt, Mr. Smith said.

Mr. Smith handed to the court the long report that was written by state police detectives addressing the drug lab scandal. Judge Lemire planned to review the material.

Calling his client “extremely polite” and a gentlemen, Mr. Smith wanted his client released on personal recognizance. Mr. Bolton said if released, he wanted Mr. Thomasian to have bail set at $2,000.

“I hope to have a decision as quickly as possible,” Judge Lemire said. A status date for the case was set for Nov. 29. The judge could have a decision as soon as Tuesday afternoon.

Ms. Dookhan, 34, of Franklin, is accused of falsifying drug test results and tampering with samples she was supposed to test. The chemist, who worked at Hinton State Lab in Jamaica Plain for nine years, reportedly tested more than 60,000 drug samples involving 34,000 defendants. The lab has been shut down.

The lengthy state police investigative report obtained by the Telegram & Gazette shows Ms. Dookhan allegedly admitted to “dry labbing” in analyzing samples. That means she identified some drugs by sight, rather than by chemical testing.

She also allegedly told investigators that she purposely contaminated samples.

One of the two other men arrested with Mr. Thomasian, Raul Barajas, pleaded guilty to a lesser charge, marijuana possession with intent to distribute, and sentenced to a year in jail. He was given credit for time served, but there was an immigration detainer in the case.

The third man arrested in the pot bust, Edgar E. Espinoza, now 30, is still wanted on a default warrant out of Worcester Superior Court.

He listed a Leominster address at the time of his arrest, and has never been in Superior Court to face the drug charges.

From: Fitchburg Sentinel and Enterprise, October 12, 2012

FITCHBURG — A Fitchburg man serving a three-year sentence for trafficking 300 pounds of marijuana could be the first local person released from jail because evidence against him was tested by state chemist Annie Dookhan at the Jamaica Plain crime lab.

Attorney William Smith, of Holden, said Wednesday he filed a motion in Worcester Superior Court to let Matti E. Thomasian out of prison while the scandal is investigated.
Smith said he also plans to file a motion for a new trial when the investigation is completed.
A Worcester Superior Court judge had Thomasian’s file under advisement Wednesday, so it was unavailable for viewing, the clerk’s office said.
A Brockton Superior Court judge released another of Smith’s clients last week on an unrelated case that is also connected to the scandal.
Worcester County District Attorney Joseph Early Jr. Wednesday said he is not surprised by Smith’s motion because defense attorneys around the state are doing the same thing.
“Based on the statement (Dookhan) gave to state police on tampering evidence, every defense attorney is filing a motion,” Early said.
Thomasian, who was living on Mount Vernon Street, was arrested in October 2007 along with Edgar E. Espinoza, of Leominster, and Raul Barajas, of Fitchburg.
They had allegedly arranged to have 300 pounds of marijuana sent from Los Angeles to a shipping company on the Cape.
An employee at the company recognized something unusual about the package and notified police.
Officials with the federal Drug Enforcement Agency and Wareham and Bourne police searched the packages after a police dog detected drugs inside.
It was slated to be sent to a Fitchburg address, but a courier arrived at the shipping company and said it was the third time he had been sent to pick up a package.
The courier was allowed to deliver the package to a storage unit in Fitchburg, where he was met by Espinoza and Barajas.
Officers from the North Worcester County Regional Drug Task Force arrested the pair.
Police later arrested Thomasian.
Barajas’ attorney Vincent F. Ricciardi Jr., was in court for another case Wednesday and was not available for comment.
The marijuana seized was destroyed and cannot be retested.
The smell was so pungent that employees in the court clerk’s office were complaining it was making them sick, Early said.
The drugs had already been tested by Dookhan and another lab employee, so the prosecution and defense attorneys stipulated to the fact the evidence was marijuana and it was destroyed, he said.
“It was a good-faith basis on our part and a decision on their part to stipulate the material in question was marijuana,” Early said.
Authorities say more than 1,100 inmates are serving time in cases in which Dookhan was the primary or secondary chemist testing evidence, the Associated Press has reported.
Dookhan has been charged with obstruction of justice for allegedly skirting protocols and faking test results.
State police say Dookhan tested more than 60,000 drug samples involving 34,000 defendants over nine years while working at the Public Health Department’s Hinton State Laboratory Institute in Jamaica Plain.
It appears the Committee for Public Counsel Services, also known as public defenders office, is recommending its attorneys and bar advocates file motions for any case coming out of the now-closed lab in Jamaica Plain questioning accuracy and chain-of-custody, Early said.
“They are questioning the validity of other cases with other chemists coming out of that lab,” he said.
There are relatively few Worcester County cases of evidence being allegedly tainted by Dookhan because most evidence from the Fitchburg and Leominster region is tested at UMass Memorial Medical Center or other the state labs, Smith said.
The evidence in Thomasian’s case was tested in Jamaica Plain because that’s where the DEA was sending its evidence.
“I think it’s a terrible thing for everybody in the commonwealth,” Smith said. “I think it’s atrocious.”

From: Worcester Telegram & Gazette, October 10, 2012

State lab scandal could free man snared in big Fitchburg bust

By Scott J. Croteau TELEGRAM & GAZETTE STAFF
WORCESTER — The alleged mishandling of drug cases by a former state lab chemist could lead to the release of a man convicted in a marijuana trafficking case in Worcester County.

The case stemmed from an October 2007 bust in which Fitchburg police and the U.S. Drug Enforcement Administration tracked a package from outside the area. Authorities discovered 300 pounds of pot and arrested three men. The district attorney’s office confirmed the names of the three men.

The lawyer for one of the men convicted in the case was told late last week that the evidence was suspect because of the lab scandal. Holden-based lawyer William S. Smith filed a motion yesterday in Worcester Superior Court asking that his client’s sentence be stayed and asking that his client, Matti E. Thomasian, be released on personal recognizance.

“Then the question is whether he can be retried,” Mr. Smith said. The lawyer said he believed his client cannot be retried.

Mr. Smith said his client is tentatively scheduled to go before one of the special sessions created by the trial courts on Oct. 22. Mr. Thomasian is still in prison.

The drugs seized in the case have been destroyed, leaving nothing for authorities to retest. Even if the drugs were still available for testing the alleged actions of Ms. Dookhan would put the validity of the testing into question, Mr. Smith said.

Annie Dookhan, 34, of Franklin, is accused of falsifying drug test results and tampering with samples she was supposed to test. The chemist, who worked at Hinton State Lab in Jamaica Plain for nine years, reportedly tested more than 60,000 drug samples involving 34,000 defendants.

The lab has been shut down.

Ms. Dookhan allegedly told state police investigators she used “dry labbing” in analyzing samples. That means she identified some drugs by sight, rather than by chemical testing. She also allegedly told investigators that she purposely contaminated samples.

“It makes the validity of the certification almost certainly invalid,” Mr. Smith said. “The real question is who, if anybody, can be retried. I would suggest no one.”

Ms. Dookhan reportedly had supervisory roles at the lab as well, Mr. Smith said. That adds to the questions about samples tested at the lab, the lawyer said.

On Dec. 2, 2010, a Worcester Superior Court judge sentenced Mr. Thomasian to 3 years to 3 years and a day in prison for marijuana trafficking.

While not discussing the particular defendant, District Attorney Joseph D. Early Jr. said one of the men involved in the alleged tainted cases was scheduled to be released in December 2013.

Mr. Thomasian, now 37, listed a Fitchburg address when he was arrested. He was sentenced to an additional six months in jail on a charge of conspiracy to violate drug laws. The sentence was to be served concurrently.

The October 2007 pot bust came after Fitchburg police and the U.S. Drug Enforcement Administration began tracking a package from outside the area. A shipping company was alerted to a suspicious package.

Eventually, the DEA, state police and officials from the North Worcester County Drug Task Force arrested three men at Pace Energy Service Station in Fitchburg.

Defense lawyer Vincent F. Ricciardi Jr., who represented one of the three men, Raul Barajas, said he was notified more than a week ago that one of his cases might involve Ms. Dookhan. He was formally notified this week that it was the case.

Mr. Barajas, now 31, listed a Fitchburg address at the time of his April 2010 sentencing in Worcester Superior Court. He was charged with marijuana trafficking.

Mr. Barajas pleaded guilty to a lesser charge, marijuana possession with intent to distribute, and sentenced to a year in jail. He was given credit for time served and there was an immigration detainer in the case.

“Locating my client is probably going to be the hardest part of my job,” Mr. Ricciardi said. Mr. Barajas was originally from Mexico, but Mr. Ricciardi does not know if his client was deported.

In an interview this week, Mr. Early said there was a stipulation in the marijuana case where the defendants agreed to the kind of drugs they were peddling. It is unclear if those admissions were made based on certifications provided by Ms. Dookhan.

“There was some additional information in the grand jury minutes that may have an effect on it (the case) as well,” Mr. Ricciardi said. “There was testimony that not all of it (the marijuana) was weighed and tested.”

The testimony came from either a state police trooper or a DEA agent, not Ms. Dookhan, he said.

For now, Mr. Ricciardi is discussing the case with the district attorney’s office and will consider what path to take.

The third man arrested in the pot bust, Edgar E. Espinoza, now 30, is still wanted on a default warrant out of Worcester Superior Court. He listed a Leominster address at the time of his arrest and has never been in Superior Court to face the drug charges.

From (truncated): Associated Press, May 21, 2008

Mass. court allows statistical evidence of racial profiling

By DENISE LAVOIE

Associated Press writer

May 21, 2008 12:00 AM

BOSTON — Drivers who are stopped by police and suspect racial profiling can use statistical information to make their case, and if they prove it, evidence seized during the stop should be thrown out, the state’s highest court ruled Tuesday.

The Supreme Judicial Court said defendants can compare the racial composition of people stopped by police along a certain stretch of road with the racial composition of all the people who use the road.

If the statistics show “impermissible discrimination” based on race, then the burden shifts to prosecutors to show that the traffic stop was not motivated by race, the court ruled.

Defense attorneys hailed the ruling as an important step for minorities who have long believed they are stopped by police because of their skin color, not a traffic violation.

***

The ruling came in the case of Andres Lora, who was a passenger in a car that was stopped by state police on Interstate 290 in Auburn on Dec. 20, 2001.

The driver was not operating erratically, but had committed a traffic violation by driving in the left lane when there was no traffic in the center or right lanes.

After a state trooper stopped the car and returned to his cruiser to run a check on the driver, he saw Lora step out of the car. When he went to tell Lora to get back into the car, he saw a small bag on the driver’s side floor containing cocaine.

Lora was charged with cocaine trafficking, but later filed a motion to throw out the cocaine as evidence, arguing that the traffic stop was unconstitutional because the trooper initiated the stop based on his dark skin.

Lora’s lawyer introduced statistics showing the trooper had a history of disproportionately stopping and citing nonwhite motorists for motor vehicle violations. A Superior Court judge found that the statistical evidence created an “inference of purposeful discrimination,” and agreed to suppress the cocaine found in the car.

The SJC overturned the lower court’s ruling, finding that the statistical evidence presented by Lora wasn’t enough to rebut the state’s claim that the trooper had acted in good faith and without intending to discriminate.

The court found that Lora’s statistics — which compared the racial makeup of drivers who were stopped along a stretch of I-290 with the racial makeup of the town of Auburn — were unreliable and not accepted within the scientific community.

But the SJC concluded that legitimate statistical evidence demonstrating disparate treatment based on race can be offered by defendants.

Lora’s appellate attorney, William S. Smith, said the ruling could help other defendants, even though it didn’t help his client. He said that in suspected cases of racial profiling, now the state can’t just point to traffic laws to justify the stop.

***

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