CWOF

CWOF, sounds like “Quoff”.

You will hear this term if you spend any time in the criminal court, and your lawyer or the prosecutor might mention it in relation to your case.

CWOF stands for “continued without a finding.” This is a way of resolving a criminal case that avoids a “guilty” finding, and ultimately ends with the charge dismissed.

A CWOF requires that you admit to “facts sufficient to support a finding of guilty.” In other words, you have to say that enough of what the prosecutor is accusing me of is true that a jury could find me guilty if they heard those facts at trial. In return for that admission, the judge agrees to continue the case without entering a finding and not enter a guilty finding.

A case is continued without a finding, or “cwof’ed,” for a period of time, such as six months, one year, or two years, during which time you are placed on probation. If you are successful in satisfying all of the probation conditions, and do not get charged with a new offense during that time period, the charge that has been “cwof’ed” is dismissed.

It is probation.

This probation is just like any other that you may be subject to in that there will be a monthly probation fee and you will have to abide by certain conditions. You may have other conditions and requirements depending upon your case.

On your criminal record, or CORI, the charge will show as “CWOF – open” during the period of the cwof. During that period, people such as employers and landlords can see the charge on your CORI report. Once it is dismissed, they generally will not see it anymore.

The obvious benefit of a CWOF is that you have an opportunity to avoid a conviction on your record. Ultimately, your charge will be dismissed, and you will always be able to answer the question “have you ever been convicted of a crime” with “no.”

Be careful.

The cautionary part is that you will be on probation for a time. If you violate the terms of your probation, the cwof can be changed to a “guilty” finding, and you can be sentenced to jail, at a probation violation hearing. You will not get a full trial by jury, and you will not have the same evidentiary and Constitutional protections that you would have at trial.

Dangerousness Hearings

The Dangerousness Statute, or “58A”.

The Massachusetts Dangerousness statute, ch. 276 sec. 58A, defines certain charges and criteria under which a defendant can be held in jail without the possibility of being bailed out for one hundred and twenty days. This statue is commonly invoked in seriously violent cases, and often in cases of domestic violence.

For example, where a defendant is charged with using a firearm during a crime it is likely that the Commonwealth would seek to have that person held without bail. In cases of domestic assault and battery,  changes in the law have made clear that the legislature expects defendants to be held without bail on a much more frequent basis.

The Dangerousness Hearing.

A dangerousness hearing requires the Commonwealth to prove that the charges fall under the statute authorizing the defendant’s detention, and that no conditions can be imposed by the court that would adequately protect the public safety. Even before the Commonwealth has to prove that much, the defendant can be held for three days without any proof whatsoever. Dangerousness hearings are very serious matters and require substantial preparation in a small amount of time.

In some cases, a dangerousness hearing offers a first opportunity to observe and cross-examine the prosecutions’ witnesses.  However, there are reasons in some cases why it is not wise to have live witnesses testify at the hearing.  An experienced defense lawyer must carefully evaluate a case individually to determine how to handle a dangerousness hearing.

Appealing a conviction

Appealing a criminal conviction.

 
Sometimes the law is on your side, but the judge or jury is not. If you went to trial you have the right to appeal your conviction by asking a higher court to rule on certain issues from your trial.

An appellate court will not generally reconsider the evidence in your trial. It will consider questions of law and procedure. There are often, though not always, questions about violations of Constitutional rights.

Appeals are a uniquely academic process, but a powerful tool in criminal defense. If the law is on your side, and the judge made a mistake before or during your trial, it doesn’t matter how bad the facts of your case look.  It is the job of the appellate court to rule on the mistakes of law or procedure.

There are also some few times when an appeal may be taken before the trial occurs. This is a rare occurrence, but when available, it is usually worth pursuing, because you have nothing to lose but time.
 

Preparing an appeal.

 
Preparing an appeal in a criminal case begins with preparing a written record of the trial proceedings and carefully reviewing any legal issues raised during the trial, and even those which were not raised but should have been.

Also, the trial record must be carefully examined to determine whether, even if the evidence is viewed with all inferences going in favor of the prosecution, 0ne or more of the essential elements of the crime(s) was not proven.

Appeals take a great deal of time and effort to prepare and argue.  The official record in a criminal case includes all of the papers filed by the lawyers, all of the evidence submitted at trial and at hearings, and transcripts of all hearings and the trial.

Even a relatively routine criminal case can involve many issues of law and present many potential arguments for appeal.  An appellate lawyer must carefully research the law regarding each issue and examine how the law was applied to the specific facts of your case.
 

Timing.

 
Unfortunately, because appeals come after a guilty verdict at trial, most appeals are conducted with the defendant being held in jail. There are strict procedural rules on starting the appeals process, which means that it is very important to begin the process as soon as possible to make sure you preserve your rights to pursue an appeal.

What if I just want to plead Guilty?

What if I just want to plead guilty?

If you wish to plead guilty, a defense lawyer can help ensure that you are treated fairly and reasonably. The penalties for many offenses are unexpectedly harsh, and the government is not always inclined to graciously accept your plea and agree to leniency.

In fact, in some instances you may be able to take responsibility for the offense without suffering the ramifications of a guilty finding on your record.

You do not have to just submit yourself to the system. Importantly, there are often consequences of a guilty finding beyond the court’s sentence that the court and prosecutor will not tell you about, such as:

  • Loss of driver’s license;
  • Loss of student loan eligibility;
  • Insurance premium increases;
  • Loss of housing eligibility;
  • Loss of the right to attend and participate in your child’s school events;
  • Suspension or loss of professional licences;
  • Significant costs and requirements for probation;
  • Suspension or other punishments at school;
  • Loss of employment.

The judge and prosecutor are not required to determine which, if any, so-called “collateral consequences” apply to you, and they are not required to notify you about them.  If you do not know ahead of time what the hidden ramifications of a guilty finding are, you will only find out about them when they happen to you.

In short, you should never simply count on the mercy of the court or prosecutor. You will seldom find it. If you intend to admit to an offense, you need a lawyer who will take the time to learn who you are, where you come from, and where you wish to go.  As simple as your situation may seem, it is likely that there are collateral effects you will want to know about before you plead the case out.

What if I am under investigation but haven’t been charged?

“Do I need a lawyer if I am under investigation and no charges have been filed against me?”

Yes, your need for effective defense is just as great during the course of the police investigation. It is important to know that police and prosecutors usually do not give people the benefit of doubt before they file charges. They often make mistakes, and they are not always thorough. Don’t assume that the police will fairly decide whether you should be charged.

Any evidence in your favor needs to be investigated and preserved by your lawyer as early as possible. In some cases he is able to bring evidence to the attention of the police and prosecutors before charges are filed and persuade them not to file charges against you. It is often easier to convince police and prosecutors not to file charges in the first place than to persuade them to dismiss charges once filed.

It is often easier to preserve witness statements, documents, and and other evidence before a charge has been filed than it is to go back and get them afterward.  And it is ALWAYS better to have the advice of a competent lawyer when the police or regulators are investigating so that you do not do or say anything that will cause you problems later.

Bail

What is Bail and How Do I Pay It?

“Bail” is a cash payment that is deposited (“posted”) to the Court and is held there until your case is concluded.  The money is deposited in return for you release from custody, either by the police or the jail.  At the end of the case, whoever posted the bail money gets it back.  If bail is ordered in your case, you will not be released from custody until it is posted.  You will be held at the county jail until the end of your case, or until the bail is posted.

However, your release on bail is conditioned on several promises.  You promise that you will return to court for each and every court date.  You promise that you will not commit any new offenses while you are out on bail.  A judge may impose other conditions upon your release on bail, as well, including:

  • House arrest at home with a GPS monitor on your ankle, and perhaps a breathalyzer installing in your home to prevent you from drinking alcohol;
  • Curfew;
  • A promise to stay away from, and have no contact with, the alleged victim(s) in your case;
  • Enter and complete  substance abuse treatment;
  • Remain free from drugs and alcohol, with random drug testing;
  • Stay away from certain places;
  • Refrain from using a computer;
  • Any other condition that the judge feels is appropriate in your case.

If you violate any of these promises, or conditions, the judge can revoke your bail, meaning that you will be taken into custody and held in jail until your case is resolved.

The judge can also order the forfeiture of the bail if you fail to show up for court, meaning that the person who posted the bail will not get the money back.

How do I pay bail?

Bail is usually posted in one of two ways.  Often, when someone is arrested, the police will call a “bail clerk” who is a court official who can set bail amounts when the court is not in session.  These clerks will come to the police station, look at the police report and the charges against you, and will set a bail amount.  You, or someone on your behalf, can give them the case right there and then, and you will be released until court the next day.

The bail clerks are also entitled to a $40.00 fee for coming and setting bail. This fee is in addition to whatever bail amount is set, and is not returned at the end of the case.  So, whatever amount is set by a bail clerk, add $40.00 to the total.  If you have the bail but not the fee, you won’t get released.

Often when bail has been set and posted by a bail clerk, the judge will adopt that amount as the permanent bail when you appear in court the next day. However, he doesn’t have to adopt that amount.  He may order a higher bail if he feels that what was posted the night before was not enough.  Or, he may set a lower amount.  If he sets a higher amount, you will go back into custody and be held at the jail until the new amount has been posted.

When bail is set in court, it can be paid at the court clerk’s office.  It needs to be paid in cash.  The person posting the bail has to show a picture ID, and they will receive a receipt.  Only the person who posted the bail can receive it back at the end of the case.

Bail can also be posted at the jail, if someone is held on bail and it cannot be paid before the person is taken to the jail after his first court appearance.

Appealing a bail determination.

If a bail amount is set in the District Court, that determination can be appealed in the Superior Court.  Your lawyer can file a Bail Petition and a Superior Court judge will hold a new bail hearing, usually within a couple of days.  These hearings are now usually done by video, so you will be in a room at the jail with your lawyer, and the judge and the prosecutor will be in a courtroom.  You will each have a large video screen so you can see and hear the other party.

It is not unusual for the Superior Court judge to lower the bail set in District Court, if you have a good argument for why it should be.  Superior Court judges hear much more serious cases than District Court judges, so circumstances that sound severe to a District Court judge might sound routine, or almost mild, to a Superior Court judge.

Factors judges consider when setting a bail amount.

What do judges consider when determining how much bail to order?  The questions in a bail determination are:

  • How much bail will ensure that the defendant returns to court; and
  • Does the defendant pose a danger to the public.

Therefore, if it is your first offense and the facts of your case do not involve injury to another or a danger to the public, you will likely be released on no bail at all.

If you have a long criminal record, and you have lots of defaults (missed court dates) on it, your bail will be higher to insure you appear for court.

Factors judges look at include:

  • The number of prior offense on your record;
  • The types of offenses on your record (are they crimes of violence?);
  • How long ago those offenses took place;
  • The facts the police and prosecutors are alleging in this case;
    • violence?
    • a particularly vulnerable victim?
  • How severe the potential penalty is for the new offense;
    • mandatory minimum?
  • Your financial circumstances;
  • Your family circumstances;
  • Are you a drug or alcohol abuser:
  • Do you pose a threat to anyone?

 

Can I fix a Mistake on My Criminal Record?

What kinds of mistakes can show up on my CORI?

Mistakes may include:

  • Misspelled or wrong names, wrong birthdays, wrong place where you were born, a wrong Social Security number;
  • Or there may be aliases that are not yours;
  • Information about what happened in your cases may be wrong;
  • A case that is closed may be listed as still open;
  • A case where you were found not guilty may be listed as dismissed; or,
  • There may be cases on the CORI that are not yours.

How do I fix mistakes on my CORI?

At the court where your case was heard, you can ask a probation officer to fix some mistakes. If a case on your CORI is listed as open, but it is really closed, you can ask a probation officer to fix the mistake. Probation officers can fix misspellings and clerical errors. They may be able to fix other small mistakes also.

You also can call:

  • the Office of the Commissioner of Probation at 617-727-5300 to fix mistakes on your CORI;
  • the DCJIS CORI Unit:(617) 660-4640 and ask for help.

More serious mistakes may require you to file a motion in court.

Errors with warrants.

Sometimes a case is listed as open because the court thinks you did not pay a fine or court costs or you did not show up for a hearing. If a case is listed as open, check your CORI to see if there is a “W” in the status column on the right of the page. “W” stands for warrant. If you think there may be a warrant, seek help from an attorney immediately. If there is a warrant, you can be arrested by the police and might be held in jail if you appear in court.

If there is a warrant for your arrest, you should contact a lawyer immediately so he can help get it cleared.  You will most likely have to appear in court to resolve it, even if it is an error.

Removing someone else’s cases from your CORI and correcting court errors.

Sometimes, another person’s criminal case shows up on your CORI. This can happen when people have similar names or the same birthdays, or if a person gave a fake name when arrested. The police or court staff also may have typed the wrong information into the computer or made other errors.

If this happened to you, get a copy of your own CORI. After you get your CORI, mark which cases are not yours. There are several things you can do to fix your record:

If the probation office does not fix the mistake, it is likely you will need to file a motion in the court where the case comes from to correct the mistake.

It may be easier to show that the case does not belong to you if you look at the court file. A police report in the court file may have a mug shot or a description of the defendant. The police who made the arrest may be able to give you more information. The police may take your fingerprints and compare them to those in the police file for the case. If the police have a photo of the person they arrested, you can use the photo to show probation that you are not the same person. If the police have fingerprints for the person they arrested, you can have your own fingerprints taken to prove they made a mistake in listing you as the defendant.

Right to access to your own CORI.

CORI subjects have a right to inspect and obtain a copy of their own records.  You have a right to request a free “self-audit” every 90 days to learn who accessed your records, when, and for what purpose.

Unauthorized access to someone’s CORI is a criminal offense subject to imprisonment and fines.

What if I am innocent?

“What if I didn’t do it?”

Even if you have done nothing wrong, you don’t want to go it alone in the criminal justice system.

  • If the police have contacted you and want to ask you some questions;
  • If you got a summons in the mail telling you to show up in court for a hearing or an arraignment on a criminal charge; or
  • If you have already been to court and arraigned, but believe that once you explain the situation, you will be exonerated;

You still need a lawyer.

It is not unusual for an innocent person to be convicted, or to find himself on probation or with other serious consequences of a criminal charge. It can happen almost by accident, because of a lack of information and knowledge about the system, or it can happen by coercion. And it can happen easily when someone who is unfamiliar with the system finds himself in its grip.

If you haven’t been charged yet but the police have contacted you.

If you have been contacted by the police and they want to speak with you about a matter, you should always speak with a lawyer first.  You may think you can just explain that you weren’t involved or that you didn’t do anything wrong.

The problem is that you will not know what the police already know, or think they know, or have been told by someone else.  You may not even know what they are really investigating.  You have no way of knowing what information is important to them.  And once you start talking with them, they are trained to keep you talking, and to lead you where they want you to go.  So you may start out talking about what you think is the main reason they contacted you, and wind up making statements that you think are innocuous but will be used against you later.

If you at least consult a criminal defense lawyer first, he will assess the situation and the risks that you face.  He may be able to speak with the police first and find out what exactly they are investigating, what their suspicions are, and whether you should answer any questions for them.  And he may be able to answer those questions on your behalf.

If you have been arrested or charged already for something you didn’t do.

Sometimes people who are innocent are nevertheless accused and charged with crimes. It happens.  But if you are charged, your innocence does not at all mean you don’t need a lawyer.

The reality is, if you have been charged with a crime, you are assumed by many to be guilty. The prosecutor, the public, some judges, and, at the outset, the jury, will likely believe you are probably guilty. We like to think that truth and justice prevail, but it is not always so. People are found guilty of crimes they did not commit. It happens every day.

Once you are charged, the only person interested in your innocence will be your lawyer.

  • The police will not continue to investigate; once someone is charged, they see their job as done.
  • The prosecutor might offer you a “deal”, but it will involve admitting guilt.
  • Your protestations of innocence will most likely be met with skepticism.
  • When you explain your innocence, you will be assumed to be lying.
  • No one else will be investigating, or listening to your evidence or arguments.
  • If you try to explain to the judge that you are innocent, he will likely say “then go to trial.”

The system is not set up to deal fairly with innocent people.

Innocent people need a lawyer most of all.

Your lawyer will investigate the case.  He will go beyond where the police ended their “investigation”. He will send an investigator to interview witnesses. He will challenge the “facts” in the police report.  He will challenge the evidence the prosecutor thinks points to your guilt.  He knows how to convince the judge to exclude evidence, and how to get important witnesses and other evidence into court.

The only way to ensure that your rights are defended and that you have someone fighting for you is to hire a lawyer. Make no mistake: The system is set up to convict people, not to achieve justice or discover the truth.

Sealing Your Criminal Record

Can I seal my criminal record in Massachusetts?

Yes, you can.  If you case is over, and if you have served any sentence or term of probation that was given to you, you can seal the record of your case and get a new start.

Sealing a Massachusetts criminal record is a powerful and effective way to preserve your future after a criminal case is dismissed, continued without a finding (“CWOF”), or even if you plead or are found guilty of a Massachusetts misdemeanor or felony. Once your Massachusetts criminal case is sealed, it disappears from view for almost all purposes, including employment applications, educational institutions and housing providers or landlords.

When can I seal the record of my case?

When you can ask the court to seal your case varies depending on the outcome of the case, as we discuss below. For cases that ended in a conviction, there is a waiting period. If the charge was dismissed or you were found not guilty, you can ask for it to be sealed right away.

Convictions.

For criminal convictions, there is a waiting period before they can be sealed. Misdemeanors can be sealed after five years. Felonies can be sealed after ten years. These are eligible for sealing after the waiting period through an administrative process by mail.

The clock begins at release from incarceration or custody, or from the end of any probation period. If the sentence did not include incarceration, the clock begins at the time of disposition (the conclusion of court proceedings) which includes up to the end of probation.

Any intervening convictions reset the clock. If you get a new conviction, the clock is reset for all of your prior convictions, no matter how old they are.

A first-time drug possession conviction can be sealed without a waiting period, but the decision is up to a judge.

Dismissals and CWOF’s.

A criminal charge that ends in a dismissal, nolle prosequi, or finding of not guilty or no probable cause may be sealed by a judge without a waiting period.  You can request that the case be sealed right away.

If your case ended in a Continuance Without a Finding (CWOF) or pretrial probation you can ask that it be sealed immediately upon the end of that probation period.

Is it guaranteed that my dismissed case will be sealed if I ask?

Sadly, sealing of your record of a dismissed or “not guilty” charge is not automatic or guaranteed.

A judge can order sealing of the charges only upon entry of specific findings on the record “showing closure is necessary to achieve a compelling interest.” The value to you of sealing the record must clearly outweigh the constitutionally based value of the record remaining open to the public. You must show that sealing the record furthers “substantial justice” and “that he or she risks suffering specific harm if the record is not sealed.”

What does this mean?  It means that you have to show a judge that the existence of the record of your case is causing you some real – not hypothetical – hardship. Sometimes this is easy, as when you lose a job opportunity because of a CORI check.  But often it requires the assistance of a lawyer to convince the judge that the record is a real hardship for you.

Do I need a lawyer to get my record sealed?

You don’t have to have a lawyer to get your record sealed. However, there are rules that can be confusing and procedural requirements that you must follow in order to get your case sealed, and it probably makes sense to have a lawyer help you.  If you have to go before a judge and convince him that the hardship to you of having your case not sealed is greater than the need for the public to have access to the court record, you should have an experienced lawyer represent you in court.

Call us to seal your record.  We can help you do it quickly and painlessly.

Warrants and What to Do About Them

Bench Warrants, Arrest Warrants, and how to deal with them.

There several types of warrants that you should be aware of in Massachusetts. One of the most common is what is known as a bench warrant. This is warrant ordered by a judge against you in a criminal or civil case. Such a warrant may be issued by a judge for a variety of reasons. Some of the most common are for failing to show up for a scheduled court date.

In the case of a more serious criminal case, failing to appear in court may lead to what is known as an arrest warrant. This type of warrant leads to immediate efforts to find and jail the defendant. But in the case of a bench warrant, in most cases the police will not actively search you out and arrest you.

Rather, for a bench warrant, your name goes into a database that services all of the law enforcement community. When your name is in that database, if you have any dealings with the police, you can be taken into custody on that outstanding bench warrant. This could include if you are a victim in a traffic accident, even if you were not at fault. The issuance of a bench warrant will also result in the suspension of your driver’s license.

When the court issues a warrant, a notice and copy of the warrant is mailed to the last address the court has for you.

In some cases, you may not have been aware that you had a warrant issued for your arrest because you have changed addresses. But note that even if you changed addresses and did not receive the court papers, you still are responsible to show up in court.

Release upon arrest on a warrant.

A bench warrant can be:

  • “Bailable”, which means that a bail clerk can set bail and release you to go to court if you are arrested on the warrant;
  • “Bailable for a specific amount”, which means the court that issued the warrant sets a bail amount which you must pay to be released if you are arrested on the warrant; or
  • “No bail”, which means that if you are arrested on the warrant, you will be held in custody until you are eventually brought to the court that issued the warrant.

If you are arrested on a warrant and you post bail, you will be given a “recognizance” form that says you must appear in the court that issued the warrant on a certain day at a certain time. This allows you to go free until you must show up in court on that day.

If you cannot post bail, or if the warrant is “no bail,” It can sometimes take several days for you to be brought to the court that issued the warrant if you are arrested in another court’s jurisdiction.

What to do if you learn there is a bench warrant for you.

If you are aware there is a bench warrant out for you, you can contact the clerk of court or the police department. Make arrangements to come in and pay bail so that the warrant is canceled. It is a good idea to learn how to pay the bail, because usually a personal check will not be enough, and not all localities take credit cards yet. A lawyer can help you with the process.

If you posted bail and then you missed the court date, that money has probably been forfeited. But, if you had a good reason for not being in court, you may in some cases be able to persuade the judge to reinstate that bail. Or, you might be able to have it credited towards your costs and fines. The best lawyers can sometimes have a bench warrant removed for you without you even appearing in court.

Having a Warrant Cleared.

A bench warrant can have many serious consequences, but it is possible to have this issue cleared up if the proper actions are taken. So, you should address the issues that led to the warrant as soon as you can. It is wise to have an experienced lawyer handle the case so that you can limit the consequences.

What Is the Difference Between an Arrest Warrant and a Bench Warrant?

A bench warrant is issued by a judge when you violate the rules of the court, such as for failure to appear. On the other hand, the arrest warrant process is handled by the police. The police file a statement telling the judge why you should be arrest, usually that you are thought to have committed a crime.

You usually will not know that there is an arrest warrant for you. If you do learn that there is one, you should contact a lawyer immediately so that he can negotiate how you will anser the warrant and limit the consequences of the arrest. Appearing on your own to answer for a warrant is always better, in the eyes of a judge, than being arrested on it. It shows that you are committed to defending yourself and showing up for court in the future. These are important factors when a judge is considering ordering bail in a case.