, Derry, New Hampshire

Crime / Court

February 17, 2011

Lawyer ends up winning, despite two losses

In one of the earliest trials of my career, transit police in Boston stopped a man who had jumped the turnstile. They allegedly threw him against the metal gate, then the floor with such force that hospitalization and follow-up care were required.

No one, the turnstile jumper included, argued that trying to evade the fare was right. But, did the crime justify more force than was required to simply stop the man and give him a ticket?

We tried the case in Boston Municipal Court. Medical evidence confirmed that enough force was used to hospitalize the scofflaw when his body was forced against the metal turnstile and his head slammed on the floor.

The legal issue was whether less force would have accomplished society's goal of making the scofflaw pay, and whether the T was liable for the injuries.

No, held the lower court judge.

Back then, those who lost in district court had a de novo right of appeal for a second trial in superior court, as though the first trial had never occurred. So, we tried it again, this time to a jury.

Several jurors visibly winced as medical testimony went in regarding the force of the body being slammed against the turnstile, then the cement floor. Jurors listened intently as the court instructed them on the law of excessive force.

But, 12 jurors delivered the same verdict as the judge had in the lower court.

In a famous folk song, the Kingston Trio told the world about the Boston transit system's unique system where paying a toll to get on the Boston street cars isn't enough. When the trains reach their suburban destinations, riders must drop additional coins in the fare box to get off.

The song immortalizes poor "Charlie on the MTA," who lacked another nickel and was doomed to ride the T forever.

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