WESTFIELD MAGISTRATE RULES NO BASIS TO MOVE FORWARD IN NILAN HIT-AND-RUN CASE … plus … PLANET PRESENTS FIRST-EVER PHOTOS OF THE VEHICLE … and … NEW INFORMATION
By DAN VALENTI
PLANET VALENTI News and Commentary
(FORTRESS OF SOLITUDE, WEDNESDAY, JANUARY 18, 2012) — Apparently, Meredith Nilan walks — no harm, no foul. We say apparently because, as of yet, there’s been no official announcement in the case, only Meredith Nilan’s lawyer, Tim Shugrue, saying that Nathan Byrnes, assistant clerk magistrate from Westfield District court, found no probable cause for continuing the hit-and-run case against the woman. Pittsfield police would not comment.
This, the latest episode in “Father Knows Best,” will do little to build the perception that all is on the up-and-up or to restore people’s faith in the judicial system. THE PLANET was the only media outlet letting you know that the hearing was conducted last Thursday, under the cloak of secrecy. We wonder: If Ms. Nilan is the daughter of Joe and Mary Jane Kapanski, does she get this speedy a hearing, out of town, in secrecy, with no media or public witness present, to determine what happened?
First-Ever Photos of the Impacted Nilan Vehicle
Just prior to the magistrate’s ruling, THE PLANET heard from sources close to the events involving the accident that severely injured Peter Moore. First, we present photos of the vehicle Ms. Nilan was allegedly driving. They clearly show a head-sized hole in the windshield and heavy damage to the front hood and end.
A head-sized hole in the windshield shows the impact (PLANET VALENTI).
We also present a photo of the blood-stained area on the side of the road, at 6 Winesap Road, where the incident appears to have occurred. Then, we show a more overall view, showing the blood stain in relation to the location. From the photo at left, and below, it becomes clear that it was no dog that she hit.
Significant force is needed for an object to smash through the safety-plated glass of a car’s front windshield.
In the photo below, you can see the impact of the body of the hood of the car. Also, it appears as if the grille is missing. Again, this would require substantial force and speed from the vehicle.
A close-up of the blood stain marks the location of the accident (PLANET VALENTI)
Front-end and hood damage on the car indicates where the vehicle hit the victim. No grille can be seen. (PLANET VALENTI)
Notice blood stains to the left of the mailbox, near center of the photo. (PLANET VALENTI)
From our sources: According to the Pittsfield Police Department “Motor Vehicle Crash Police Report,” filed by Clifford Nilan, owner of the vehicle, the point of contact where the vehicle hit Moore was listed as 52 Winesap Road. This is just south of the intersection of East and Macintosh Drive, where Moore lives.
“A thorough search of the area, however, revealed no evidence of a collision, such as debris or vehicle parts,” sources say. “In front of 6 Winesap Road, though, a search revealed a large blood stain (see photo) and splatter in the southbound lane. Frozen in the blood was a tuft of dog hair. Moore was jogging with his dog when he was hit.
“The blood splatter indicated that Moore’s heas was to the south and his feet were pointing north. Blood droppings could be followed from this location .375 miles to Moore’s home at 101 Macintosh Drive.
“A resident at 17 Winesap Road reports hearing what sounded like ‘a large truck hitting a large hole’ at 8:15 p.m. on Dec. 8, but he did not investigate. At 10:30 p.m., Dec. 8, Cliff Nilan called the Pittsfield Police Department to report that his daughter, Meredith, had struck ‘something’ while driving his vehicle in the area of 52 Winesap Road. This initial report, sources say, was amended sometime later to indicate that the object struck was a pedestrian, Peter Moore.”
Sources say that n Friday, Dec. 9, at 11:30 a.m., “Ms. Nilan went to the police to give a statement regarding the incident. She said she hit something around 9 p.m. the prior evening, but she did not know what she struck. She said she believed it to be a dog or a deer.” She told police, sources say, that she immediately stopped her vehicle to look around, but saw nothing in the area. She said she then returned home to notify her father. At that time, sources say, both she and her father returned to the area and again found nothing. They went home and notified the police.
Source: ‘It Would Appear … that the Nilans’ Interpretation of the Incident was Incorrect’
Sources: “It would appear, from this information, that the Nilans’ interpretation of the incident was incorrect. Both the victim, Moore, and a witness place the time of occurrence at approximately 8:15 p.m. The PPD placed the location at 6 Winesap Road. Had Ms. Nilan stopped and searched, as she said, would she not have seen the victim in the street, especially if she did in fact turn around to return home?”
It’s hard to reconcile this information discrepancy. One source puts it this way: “She would have run [Peter Moore] over as he lay unconscious in the southbound lane of Winesap Road.”
Prior to the collision, Ms. Nilan had attended a “Happy Hour” of Berkshire Young Professionals. Did she consume alcohol? It would appear likely. How much? That is not known. Sources familiar with the BYP gatherings say that little “networking” occurs, and that the gatherings “are an excuse” for young professionals to “drink their brains out.” Again, we do not know for certain if Ms. Nilan was drinking. That would seem likely to a high degree of probable certainty.
THE PLANET also has uncovered information that, while hearsay, does appear to have a basis in fact. Sources say that on the night of Dec. 8, the Pittsfield Courts were having a holiday gathering at Patrick’s Pub on Bank Row. A Patrick’s source confirmed that much. Sources say sometime between 8:30 and 9 p.m., Meredith Nilan entered Patrick’s “and was overheard telling her father that she had just hit someone with her car.” Sources claim Clifford Nilan then called attorney Tim Shugrue before calling police. We haven’t been able to confirm this information.
A police source (not from the area) says, “After an initial reluctance on the part of the Pittsfield Police Department, a most commendable investigation was undertaken. After it was determined that a person, not a dog or a deer was struck, two detectives were assigned to the case. They obtained a search and seizure warrant from the vehicle, which were matched to the victim.”
As we know, Ms. Nilan was charged, and the Westfield clerk magistrate found no basis for the case to continue. A police source says that there “may be” an ongoing investigation “to determine as to any criminal involvement on the part of Clifford Nilan.” To date, Clifford Nilan has not been charged in connection with the incident.
For now, it is up to the perception of the public to decide if justice has been served in this case.
—————————————————————–
IT’S INTERESTING, AS WE ALL KNOW, LIFE ON THIS THIRD STONE FROM THE SUN, AND WE DO OUR BEST IN MOVING FORWARD.
“OPEN THE WINDOWS, AUNT MILLIE.”
LOVE TO ALL.
Wow, great story Dan.The one thing that I don’t understand is why Mr.Moore or his wife didn’t report being hit by a car the moment he got home.
From what I understand he was unconscious after being hit. When he woke up he did not realize he was hit. He went home and mentioned that he had to dive out of the way of a car. He went to bed and woke up in terrible pain. Whenhe went to the er he said he did not think he was hit, but the doctors said he was –all injuries consistent with being hit by a car. Very simply, he was in such a bad state he did not remember being hit. While he lay in the road the dog curled up next to him and his fur froze in the blood (why there is dog fur in the blood). The driver, from the account above, may have driven to Patricks Pub to find daddy instead of helping a bleeding man in the street.
You are right on target with your response- thank you. This is such a travesty of justice.
Dan- your article is so accurate- but there’s so much more, that will now most likely never be brought to light. I am ashamed to have EVER called Cliff Nilan a friend. When our children are born we give them roots to grow and wings to fly. I didn’t hear anything about helping them cover up their mistakes and especially when the “mistake” came so close to claiming a very valuable life. I am VERY proud to call Peter Moore a friend. He is a hero, a rare man on this earth who never, ever deserved this treatment. THEY ARE (were) friends!! – this could and should have been handled so differently- until Shugrue got involved and wisked them off to a foreign court that had no knowledge (or obviously jaded knowledge) of what actually happened.
I am just (seriously) shocked, and I guess no one should be. I never saw this coming.
I hope that in the end, true justice will be served. As a fellow human being, and a fellow citizen of Pittsfield, I am very sorry for the suffering that Mr. Moore is going through, and likely will for a very long time. This kind of “shenanigans” is making people embarrassed to say that they live in Pittsfield. I grew up here – it is my home, and I can’t say that because I would rather “do something” to change it and make it a city that all can be proud of again. I hope that many others feel the same – whether that be volunteering or joining various committees or simply making a phone call to the DA’s office, it’s time for all of us to stand up and say “enough” and we will not put up with any more of these types of things.
Dan – this was a really great “article” and great investigative journalism. Thank you!
Having worked with many people who have suffered traumatic brain injuries and other types of violent crimes over the years I am not surprised that Mr. Moore’s survival mode kicked in and blocked the memory of being mowed down by a speeding motor vehicle in his own neighborhood –some place where he had considered to be a safe place to be. His priority was to get some place safe, home. After your initial shock wears off and your pain sensors kick in you know you are in trouble — if you are still lucky enough to be alive. Lucky for Mr. Moore he was.
Mr. Moore is lucky to be alive. It certainly looks like a head on collision.
Berkshire Young Professionals do not seem very young — or professional.
Isn’t this about Ms. Nilan and her actions rather than a generalization about our area’s young professionals?
This whole story is just wrong, wrong, wrong. Looks bad, smells bad.
Too bad the days of vigilantee justice are gone. Appears that Ms Nilan and her dad deserve some tar and feathers.
That wasn’t vigilantism it was Democracy when you did something that the majority viewed as wrong you were punished. That’s the basic difference between a Democracy and a Republic which is governed by laws.
Bottom line if she was drinking she was only concerned about one person that night and it wasn’t the guy she could have killed laying on the frozen ground. Must be nice to be well connected. I hope Moore goes after their wallets but then again if criminal charges were thrown out civil charges may well be too based on that. Of course I can’t shake one thing and this is a big pet peeve of mine when you are in traffic it is your responsibility to make sure that you are out of the way of motorist for this very reason people are idiots they drink they drive carelessly even when they are sober and there is a big entitlement aura (an aura of stupidity.) that surrounds people in Mass when in traffic and I know it’s the law that motorist yield to pedestrians but at the end of the day a minor slip up can cost you your life I’m not letting my life ride on that because it’s very obvious that people don’t care about the law and when they get caught well they just claim ignorance which is not illegal. I’d rather be alive because 9 time out of 10 you’re gonna loose a power struggle with a moving vehicle.
Agreed that Moore may have shared some fault, and if the good “young professional in trainin” had any character at all, she would have stopped and provided assistance. Under that scenario, we may well have had a story of a careless jogger hit by a careless drunk and the debate would be divided.
The story is strictly about Ms. Nilan’s no explaining why she did not attempt to save Mr. Moore’s life after he went through his windshield.
How can anyone possibly put ANY blame on Mr. Moore? He was on the opposite side of the street from where she SHOULD HAVE BEEN driving! And it is noted that she was driving at a high rate of speed as well! He tried to jump out of the way but there just wasn’t time! Are you saying that people shouldn’t ever jog along the side of the road and if they do and they get hit by a car that should’ve stayed in the other lane, that somehow they are to blame? WHAT?
NO Molly I’m saying that people in general should take responsibility over their personal safety in general not rely on laws and other people it’s possible Moore did everything he could to be safe but then again it’s possible he may have learned something from this and I’m sure he’s glad the lesson didn’t cost him his life.
What would you think if Mr. Moore had been on a bicycle? Would he have shared blame then?
I think more child molesters should ride their bikes against traffic.
Don’t worry, we will all pay for this one if there is a civil lawsuit… through increased insurance rates.
[REDACTED] This isn’t O.J. This is a case of a privileged little girl whose daddy had connections to sweep this under the rug. I’m as conservative as they get, but this is a far cry from a million dollar suit against McDonald’s from coffee spillage. [REDACTED] Peter’s father served on the Hartford police force for years as a civil servant. He was nearly beaten to death by a carjacking, and survived the worst case of cancer imaginable. All so he could live to see his son nearly killed by a drunken “professional”. I live in Atlanta…and you call us backwards?!? Wake up folks. This is a complete injustice. P.S. Even if he did win a settlement, it might go halfway to paying for doctor bills the rest of his life. Money is justified in some cases…
Just when you think things are beginning to get a bit better in Pittsfield…
These people sicken me. Not the first time nor the last time corruption stains Pittsfield, but now I definitely have lost all faith in our local judicial system. The law is mine and yours and in our hands. Life revolves in circles and loops and someday they will get theirs’.
This story should be forwarded to MADD. This is unreal. If this was me (without a dime), I’m now sitting in the county jail sweating about how much time I’m looking at. Not Meredith. The police should file an immediate threat and revocation of meredith’s license. She would have to appear in front of the RMV and explain to them why she didn’t report this, in other words: her license gets revoked for 6 months.
A hole in the windshield like that, and she can’t see what she hit? Whaaaaa? We’re supposed to believe that? I hope he sues the s**t out of them, and as part of the settlement, the victim takes Ms. N into the street and rubs her nose into the frozen/dried blood. Cheers to the freakin’ weekend, Ms. N. Unbelievable.
So, cell phone and or texting about where the next party is and POW! Turning in to Winesap Rd. from East St means she was going around 30 mph. Wide turn, maybe faster.
She must have certainly seen him lying in the road unconcious and she was most likely driving under the influence.
The dog didn’t bark after seeing its master hit by a car?
She found Daddy, he and the lawyer took over from there.
I’m figuring there is a home breathalyser which gave a reading to wait at least 2 hours before calling the police.
Since when does a deer leave a human head sized hole in a windshield?
Why didn’t the cops give her a breathalyser test?
Has anyone gotten a hold of her phone records?
Did she drive to where Daddy was in her car?
Will anyone swear to what they heard her say to Daddy in the bar? (We know the answer to that one.)
‘Still wondering’:
You claim: “Turning in to Winesap Rd. from East St means she was going around 30 mph. Wide turn, maybe faster.”
Under your scenario, the Nilan SUV would thus have been heading south at the time of the hit-and-run.
Yet, according to The Berkshire Eagle in its initial report dated January 11, 2012, “Police believe Meredith Nilan was heading NORTH in her father Clifford Nilan’s 2001 Subaru Forester on Winesap Road the evening of Dec. 8 when she swerved into the southbound lane and struck Peter Moore, who was headed north, according to a Pittsfield Police accident report.”
My theory, for what it’s worth, is that Meredith Nilan was heading out from the Nilan residence at 72 Winesap Road where she had likely stopped off for a few minutes (perhaps to freshen-up before going out for the rest of the evening) after returning back to Pittsfield from the BYP party in Great Barrington at Allium that had taken place earlier from 5 p.m. to 7 p.m. that evening.
From 72 Winesap Rd to 6 Winesap Rd, where the Nilan SUV ran into Peter Moore, is a straight shot of about 1050 feet from the Nilan residence, traversable in about 20 seconds at the speed limit, less time if the SUV was speeding.
Mr. Valenti,
You say, “Pittsfield police would not comment.”
Please note, police rarely, if ever, comment on anything related to an ongoing investigation, criminal prosecution, hearing, or trial.
Indeed, it is not up to the Pittsfield Police Department to comment to the press regarding anything involving such proceedings — that is the job of the District Attorney’s Office the job of which is to represent the Commonwealth’s case, and which presumably did so in Central Berkshire District Court last Thursday morning before Asst. Clerk-Magistrate Nathan A. Byrnes.
It is up to DA David Capeless (Democrat) not only to comment to the press, but also to file any and all appeals, especially in matters wherein the evidence plainly warrants a decision different than the one rendered by a Clerk Magistrate or a District or Superior Court Judge.
In the Nilan ‘hit-and-run’ case, ACM Byrnes’ decision plainly fits that category of decision which makes no logical sense given the evidence (for example, the revealing photos you present today on PlanetValenti), which presumably was all presented to the judge last Thursday (but we will never know will we because the hearing, for as yet unexplained reasons, was closed to press and public).
Given ACM Byrnes’ regrettable decision, should the DA’s office fail now to file a timely appeal of the Byrnes’ ruling — that under any light defies logic and does not appear to be based on the facts of the case — then indeed a major miscarriage of justice will have been allowed to let stand, and the public can rightfully lay the totality of blame for that miscarriage of justice on failure of the DA’s office.
It’s the DA’s office that was supposed to present effectively to the Clerk-Magistrate the evidence collected by Pittsfield Police detectives.
In the Nilan matter, ACM Byrne’s decision plainly indicates the DA’s office dropped the ball at the initial stages of what should have been an open-and-shut case of a driver’s criminal negligence.
Please note that for the DA’s appeal to be considered timely, the DA must file that appeal of the Magistrate’s decision within a specified number of days after the Magistrate renders his decision or else the Commonwealth forfeits all rights of appeal, and thus its case.
It might be helpful to find out exactly what date the DA’s appeal period regarding ACM Byrnes’ decision in this matter runs out?
The clock is ticking.
Wow I didn’t know so many lawyers blogged on this site. Im sure Mr. Moore will still be able to sue. I would like to see how the car was going 30mph turning on to Winsap Rd. A Indy driver would have a hard time doing that.
Mr. Moore should be able to sue for injury and Nilan should have to defend against claims of criminal negligence. Equality in law depends on all using the same channels of the system, not a special exit door for the entitled.
30 is definately do-able on Winesap between the Nilan’s and the scene.
First Cliffy gets away with helping his buddy Stracuzzi out of a hole and now this fiasco. How much more, and how many more times, are we supposed to take in this city? The well connected get away with murder, almost literally, and if we spit on the sidewalk we get nailed to the wall. This has got to stop and it’s up to us to stop it. Any ideas anyone?
Molly provided a proactive suggestion (it pays to remember that DA David Capeless is a Democrat and a lot of Democrats are up for election in November 2012 — unfortunately not Capeless, though):
SEE:
//planetvalenti.com/2012/01/info-on-bridge-to-nowhere-and-make-up-of-sbnc-attleboro-police-dept-internal-drug-theft-recalls-steroidsgate-plus-unless-youve-been-shot-at-by-the-enemy-shut-up-about-the-golden/comment-page-1/#comment-49079
ALSO SEE:
//planetvalenti.com/2012/01/info-on-bridge-to-nowhere-and-make-up-of-sbnc-attleboro-police-dept-internal-drug-theft-recalls-steroidsgate-plus-unless-youve-been-shot-at-by-the-enemy-shut-up-about-the-golden/comment-page-1/#comment-49097
I couldn’t find the DA’s telephone number – it is just not published anywhere and 411 doesn’t have it either! How can someone that we elect to office not publish his phone number? How can a DA not publish his phone number? A friend of mine did finally find it, by calling the District Court. She called and talked with Mr. Capeless’s secretary and she told me that the conversation was unbelievable! She was asked no less than 4 times if she was a lawyer and each time, she said “no”. Then she was asked what the call is regarding and she told her the Meredith Nilan case. From what my friend said, the secretary had never heard the name before! And after telling her that she wasn’t a lawyer, the secretary told her that there’s no way that she can transfer this call to Mr. Capeless – leave a phone number and he’ll call back. Yeah, right! I talked with her tonight and no return phone call.
When I called much later, the secretary wasn’t so shocked that I wasn’t a lawyer and did seem to recognize the name of Meredith Nilan (after getting that info from my friend! And hopefully lots of other calls!). She took my telephone number but I never received a return phone call. Knock me over with a feather from surprise!
Really – every single person in this county who feels shocked and/or disturbed that this has occurred should call the DA’s office. He should be FLOODED with telephone calls from “we the people” to tell him that we are not going to allow this to occur any longer and we have “had it”! If we sit back and do nothing other than blog about it, then we deserve what we have I guess… Sad, but true.
His telephone number is: 443-5951.
Been saying the same thing for the last few years. What can we do?
Well, I guess no one in Pittsfield is really shocked at the results here. I hope I can take my next session at jury duty seriously because right now I think everyone is probably innocent. I am not voting to put anyone in jail that has done less than this, that’s for sure.
This has sure taught the kids a great lesson in life. We wonder why they turn out the way they do but then we meet parents like this guy.
So let me get this straight – three years ago my own daughter was involved in a fender bender on the Pike. Because she rear-ended another vehicle, which caused absolutely no damage to the SUV in front of her (her car wasn’t as lucky), she was cited at the scene and told that according to state law, if you rear-end someone, you are automatically cited for following too closely – no appeals, no court dates, no lawyers.
She has now paid three years of $250 a year surcharges, and has three more to go, on her insurance. And yet you can hit a human being, nearly kill him, claim you had nothing to do with it, and no charges are filed? Really? I guess my daughter should have sped away from the scene instead and later claimed that the $1,500 in damage to her front end was caused by either a deer, dog or a speeding Lt. Governor in a state-owned vehicle.
Something is screwed up with our legal system right here. First this idiot from Westfield finds no cause to issue a criminal complaint. Let’s take a look at him. Second why isn’t the Police Department appealing his finding. ( if they are not)
A man commits murder and Grand Jury doesn’t indict him. What the hell as the saying goes ” you can get an indictment on a ham sandwitch” So that tell me Mr. Capeless didn,t want him indicted. I would say because he is afraid of losing the case at trial. Which his office probably would. Then we can go back to why he let Adams off the hook on several charges years back.
Boy something sinks here with the whole system. I think it’s time for a new Police Chief, new DA, and above all a new Chief Probation Officer.
Totally agree. We are all feeling very helpless.
Diana, rather then play the victim, you can, as a private citizen, walk across Park Square to 7 North Street to the office of Berkshire County District Attorney David F. Capeless and vent. Capeless and his people have always been the ones in charge of presenting the Commonwealth’s case to the Court in the Nilan hit-and-run case. The Clerk Magistrate last Thursday heard that case in closed hearing and it was Capeless and his crew who should have been able to persuade the Clerk-Magistrate to issue a criminal complaint. Capeless is a public official, elected by Berkshire County’s voters. Plus, he puts on his pants one leg at a time like every other dopey guy. So instead of fretting, hand-wringing and feeling helpless, be proactive and let your elected official(s) know just exactly what you are thinking in regard to this whole matter. If enough people confront Capeless at his office, on the street, in the Courthouse, and in every other place he goes, he’s ultimately going to have to do that for which he was elected, or risk real consequences from the public whose taxes pay his six-figure salary, pension, perks, and benefits. It’s your call, Diana.
Good point Ray. I have a good mind to do just that. I have quite a bit to say there so I’d need an extra long lunch break.
PLEASE just make the call! You likely won’t get to talk with him, but making the call and stating what it is in reference to, is very important! His office needs to be FLOODED with calls! And it will literally take you one minute to do it.
Again – the telephone # is: 443-5951.
Molly, here’s a link to the DA’s contact info: http://www.mass.gov/berkshireda/utility/contact-us.html
‘Concern’ said: “Second why isn’t the Police Department appealing his finding.”
‘Concern’, it’s not the job of any police department to appeal or prosecute anything. Prosecution of cases and appeals are handled by the District Attorney’s office which represents the Commonwealth of Massachusetts in any criminal prosecution. Recommend you inquire of DA David Capeless exactly what his intentions are about this obvious affront to Massachusetts’ justice system.
Mr. Heller I believe if a Police Dept. seek a criminal complaint and clerks rules against them they have a right to appeal it to a Judge
‘Concerned’,
The police are the investigating agency, they DO NOT prosecute nor file appeals, despite what the ignorant interns who write articles for The Berkshire Eagle may imply.
The DA’s office has the job of legally representing the Commonwealth of Mass. and it was Capeless’ office, NOT the Pittsfield Police, which mishandled the prosecution last week of the Nilan hit-and-run citation. It was Capeless’ people who failed to persuade the Clerk-Magistrate and who are now the only prosecutorial entity empowered to file an appeal in that matter.
‘Concerned’,
Just to clarify: Police come to Court and present whatever evidence they have collected in a case: radar gun data in speeding cases, photos of the crash site in a hit-and-run case, testimony of a cop or investigating detective, testimony of a forensic expert for the Commonwealth, etc..
It is the Commonwealth’s attorney (the DA or an assistant DA) who presents the Commonwealth’s case and his witnesses to the Clerk-Magistrate, or to a Judge, and if present, to a jury.
The Commonwealth’s attorney (the DA or Assistant DA) also examines his witnesses (who could be those cops, detectives, or eyewitnesses to the event) and cross examines witnesses, if any, presented by the defendant’s lawyer or the defendant acting as his own lawyer.
Hope this clarifies what appears to be a misunderstanding of the role of police and the DA (aka the Commonwealth’s attorney) in a courtroom situation as occurred last week in the show-cause hearing of the Nilan ‘hit-and-run’ case.
Heller In all due respect the Police who seek a complaint and a clerk finds no cause for complaint have a right to appeal the clerks decision. At this stage the DA is not involved.
‘Concerned’,
Sorry, but that is NOT how the legal system in Massachusetts operates.
The local police are NOT lawyers; they are NOT the government authority empowered to actually prosecute a criminal case in state court.
When you get a speeding citation from a local city or town, it is the Commonwealth of Mass. in the body of an assistant district attorney (you should be so lucky as to get the DA himself) that is in court representing the Commonwealth’s case before the judge or clerk-magistrate.
For sure, the cop who issued you the ticket is there to act as a witness under oath to testify to the judge or magistrate how fast you were traveling along with the methods used to track your speed, but it is the Commonwealth’s attorney — the DA or asst. DA — that is most certainly also there in Court to present the state’s case, to recommend to the judge or magistrate a sentence and possible fine, and/or to arrange a plea bargain with you, the defendant.
Further, if the judge or clerk-magistrate rules against that Asst. DA or DA (as Clerk Magistrate Byrnes DID last Thursday in the Nilan hit-and-run case), then it is NOT the police department which would be doing the actual filing of any appeal since police are NOT state’s attorneys.
Rather, that appeal would be filed and prosecuted by the DA or by one of his assistant DA’s representing the Commonwealth.
(To be sure, the DA or ADA may be acting on a request by a local police department to file that appeal, but it is the DA’s office which has the final and ultimate word on whether or not it wants to expend resources on going through the actual appeal process, a potentially time-consuming endeavor.)
In the Nilan hit-and-run case, whoever it was from the DA’s office who was representing the Commonwealth’s case plainly did a poor job persuading the Clerk Magistrate.
That state’s attorney whoever it was mishandled badly what should have been an easy win what with all the evidence (photographs, forensic evidence from an examination of the Nilan SUV, etc.) gathered by Pittsfield police detectives. Regardless, it is still up to the DA’s office to decide whether or not it will in timely fashion file any appeal in this matter.
You cannot lay any of this on the Pittsfield police, it was the DA’s case to lose and the DA’s office stumbled badly.
Hope this answers your questions and explains what can seem to be a confusing state judicial system.
To me, the bigger question is WHY only misdemeanor charges? For a hit and run with serious injury, in MA, that is a felony. Since “show cause hearings” are only used for misdemeanors, there should not have even been a show cause hearing involving a Clerk Mag. from Westfield or anywhere! This is exactly where the corruption on the part of the DA begins – the charges only being misdemeanor charges and not felony. And to me, they have a lot of explaining to do to first the victim and then to the rest of “we the people”. This entire thing is just so very disgusting! It has caused every law abiding citizen in Pittsfield to lose faith in our judicial system – how sad.
remarkable isn’t it, man kills man , grand jury fails to indict, what about second degree,or third degree or manslaughter, or involuntary manslaughter????????????,they come up with self defence, and that’s 2 felons shooting it out with unregistered guns, guns they had for one purpose and that’s to commit crimes and kill.!!!! i’m surprised they don’t reconvene the grand jury and get the hit and run victim for j-walking…. the grand jury isnt so grand anymore is it??
Mr. Heller, apparently you’ve never been before a magistrate for a speeding citation, as you claim… because there is no assistant DA in the room. It’s either the officer who issued the ticket or the police chief if it’s a small town. If the issue becomes a formal charge and not a citation, THEN it goes to the DA, not before. I’ve pleaded my case on a speeding ticket before a magistrate, and only the Hinsdale police chief was in the room other than me and the magistrate. And the police do have the right to appeal a magistrate’s decision, just as you do if the magistrate finds you are liable for that citation. Once it’s appealed, it goes to a court hearing before a judge.
Bill Durham,
Get real, the assistant DA is within a whisper’s distance and available to the judge or magistrate when you are standing there in that courtroom.
Who was representing the Commonwealth of Massachusetts in Magistrate Byrnes’ courtroom last Thursday to counter the fancy legal footwork of Attorney Shugrue?
Who from the DA’s office attended?
Again, unless you’ve ever been before a magistrate (I know you’ve been before judges, and lost, for gas price gouging) you have no clue what happens. If you are given a citation, the magistrate holds the hearing, the officer who issued the citation or his or her superior attends representing the police, and you attend, and you have the right to be represented by an attorney. The DA does not have one of his attorneys present. If the magistrate rules that the misdemeanors rise to the level of a formal court hearing, THEN the DA is involved. This is why the POLICE appealed the judgment, and not the DA. You were wrong about police being able to appeal, and you’re wrong here, too, as usual. Now, go charge $5 a gallon for gas somewhere.
Heller, this comes from the state’s website…
What will happen on the date of the magistrate hearing?
You should come to court on the date and time scheduled for hearing. Do not arrive late. Unless the hearing notice or posted signs at the courthouse indicate otherwise, report to the clerk-magistrate’s office when you arrive at the court. Your hearing will be conducted by the clerk-magistrate or by an assistant clerk-magistrate. Formal rules of evidence do not apply. The police department will present its evidence to support the charge. You will then be allowed to tell the magistrate why you believe you were not responsible and to offer any other evidence that supports your position, including pictures, documents or witnesses. After all the evidence has been presented, the magistrate will make a decision.
If you were cited only for civil violations the magistrate will decide whether the police department has proved each civil violation by a preponderance of evidence (that is, whether it is more likely than not that you committed the violation). If so, the magistrate will find you responsible as to that violation. If not, the magistrate will find you not responsible as to that violation. You do not have a right to a jury trial for civil violations.
If you were cited for any criminal violations the magistrate will decide whether there is probable cause to issue a criminal complaint against you for those violations. If the magistrate issues a criminal complaint, you will eventually be able to have a trial by a judge or a jury or to plead guilty. The District Court’s standards for such show cause hearings are available on the internet.
7. Must the citing officer be present at the hearing?
No. Instead of the citing officer testifying, a representative of the police department that issued the citation may present a copy of the citation or a police report as evidence. If you were cited only for civil violations, the law provides that the citation itself is adequate evidence of the violation, although it is not conclusive. If neither the citing officer nor another police department representative appears at the hearing and you do appear, the magistrate will make a finding of not responsible as to any civil violations and deny a criminal complaint as to any criminal violations. If you were cited only for civil violations and neither the citing officer or other police representative appears at the hearing, but you do not appear either, your request for a hearing will be dismissed and you must pay the citation as written.
14. Can I appeal the magistrate’s decision?
If you were cited only for civil violations you may appeal to a judge but you must do so immediately and before the conclusion of the magistrate’s hearing. (On request, the magistrate may allow you some additional time to consider whether to appeal.) You must pay a non-refundable $20 appeal fee to the clerk-magistrate’s office before your appeal to a judge is heard.
If you were cited for any criminal violations you may not appeal the magistrate’s decision to issue a criminal complaint. Your only recourse is to file a motion to dismiss the criminal complaint, if you have grounds for doing so, when you are brought before a judge.
15. Can the police appeal the magistrate’s decision?
If you were cited only for civil violations the police may appeal to a judge from a decision in your favor by the magistrate. Since this is not a criminal matter, constitutional rules about double jeopardy do not apply.
If you were cited for any criminal violations the police may request a judge to reconsider a magistrate’s decision not to issue a criminal complaint for all or some criminal violations. The judge may choose to reconsider the magistrate’s decision but is not required to do so. Since this is a preliminary hearing and not a trial, constitutional rules about double jeopardy do not apply.
But I guess in the world of Glenn Heller, this is all made up and the state is lying.
BULL
Great post. This helps all of understand the process better.
It also shows CONCERN was correct: The police can (and did in this case) appeal the decision.
I read somewhere else but I have to agree. They do not want me on a jury. Good for the [REDACTED] daughter of Cliff Nilan, then good for everyone else except murder of course or a child molester.
Telling jurists to not convict anyone of a crime that has been proven to the jury is absolutely NOT the answer to this problem! This will only add to the problem!! Why would you want to do that? If you want to do something about it, then do something that has a chance of being productive – Flood the DA’s office with telephone calls – let him know that “we the people” aren’t going to allow this sleeziness to continue!
Maybe we should also start flooding Martha Coakley’s office with telephone calls, too!
If I were to hit someone and were guilty of anything, I would have to plead guiltily, that’s just me.
Good job pointing out that the ever slimey and occassionally lucky Shugrue was blowing smoke in the eagle’s eyes. An appeal was filed immediately so can’t imagine why he would not mention that.
Charley,
What is your evidence that an appeal was timely filed in the Nilan ‘hit-and-run’ case in re the decision made by Clerk-Magistrate Byrnes?
Why wouldn’t the DA issue a statement stating that he has? We have not heard one single word from him!! Or his “press person”…
I bet the cop who “shared” these photos with the planet gets in more trouble than meredith.
Sad to say Kevin…. Your probably right
The cop should get a medal.Atleast he has the balls to help get to the bottom of this cover-up.
This is a travesty. Its high time for this sad excuse of a DA to hit the road!
Both Dan Valenti & Glenn Heller are mentioned in Conor Berry’s news article about Cliff Nilan’s adult daughter’s alleged hit-and-run accident.
http://www.masslive.com/news/index.ssf/2012/01/clerk-magistrate_determines_in.html
I bet they’re all pissed this is dragging the Stracuzzi thing out again makes Nilan look real bad.
Wow, what a great story. I’m glad the Republican linked to your site in their story. But to bad they didn’t have as much detail. The pic of the car is absolutely damning evidence. Your site is now in my favorites.
Dan your blog is becoming the Heller and Molly show! HA HA! LOL
Once again, The Eagle is trying to downplay this event. They wrote that the PPD Captain Mullen had no comment. Well if that is the case, wasn’t The Eagle foolish to allow Conor Berry to leave? He has the journalistic skills to get the appeal information from the police.
Excellent Point, Mark Smith! Is there any doubt that the Eagle is playing a critical role in the Nilan cover-up?
It took the Eagle ONE MONTH to report the story — Peter Moore was hit by the Nilan SUV the night of Dec. 8, 2011 and the first we read about it in the Eagle is January 7, 2012!!!
The irony is that the Eagle ran Moore’s picture recovering in a BMC hospital bed about two weeks before the Eagle ran its story about how he got there.
RAYKOVIC
More than that, the BB had the photos long before we did and has been afraid to publish them … or were told NOT to publish them, as the case may be. They story on the dismissal quoted only Meredith Nilan’s attorney. It didn’t include anyone else from the court or the other side (police, Mr. Moore). Once again, the BB miserably fails this community and leaves it to THE PLANET to don the cape and play Superman.
It’s unfathomable to think the Assistant Clerk Magistrate couldn’t find probable causein this case, but you know all of these guys all go out for a few beers themselves. The Chief Probation Officer in Westfield is a known sauce bag, and the A.C.M. is no different. Just think if it was Mr. Nilan who was hit by Mr. Moore…..you think Mr. Byrnes would have found probable cause then?? A Clerk from the eastern part of the state would have given Mr.Moore a much better chance for an impartial hearing. Another bad day for justice in Western Mass!!
Last time I checked my map Westfield was east of Pittsfield. Perhaps the FBI or CIA should look into this? What do you think Heller or Molly?
Westfield is considered Western Mass not the Eastern part of the state??
The proper judicial authority has made a determination in the case — no reason to charge anyone — and we should let it off at that. Let the courts do their job and leave a fine young woman and her father, who has given more to this community than anyone, alone and in peace. Or don’t the hypnotized followers of this blog honor justice?
Gave Mr. Moore a gift he won’t forget. I agree though, let’s not hypnotize ourselves. Read some Sophocles. Crimes and trangressions could be committed by people in any station in life. Using personal status or other mechanisms to dodge accountability come at a price for the larger society.
The unhappiness with this crime, abandoning a victim to the elements, is the price we pay in the form of inequity and the legals system’s apparent tolerance for callous indifference.
Ahhhh good ol’ pittsfield deciever doing what she does best.
mr.berry referred to this site as a must read scandal sheet..
Martha Coakley’s Office in Springfield, 413-784-1240.
Well I, and a few others, have made the call and got the same response “he will call you back” enough is enough! Let’s set a date and a time to go to the DA’s office and talk to him face to face! Justice needs to be served!
The longer I follow this disgusting injustice the more I cannot help but think NBC’s Dateline or another program of the sort will pick up on this bizarre story.
Where is David Capeless these days? He certainly dropped the ball on the Adam Lee Hall debacle….. Now this mess!
This guy has got to go! We can only hope someone will step upto the plate and run against this guy. Lord knows we need to bring some sort of confidence to our justice system!