Boston Criminal Attorney Blog

“Justice Delayed is Justice Denied” is generally speaking an accurate truism. But in some cases, not so. Legal events this past week in Falmouth District Court make clear that exception.

Thirty years ago, in January of 1980, a woman by the name of Frances Carriere was found murdered in the bathroom of her Bourne, Massachusetts home. She had been stabbed three times in the lungs and heart. From the beginning, her then-estranged husband Edmond T. Carriere, whom Frances had been separated from, had been identified by authorities as a suspect. However, Edmond Carriere had been in Florida at the time of the Massachusetts murder, and police were not able to establish sufficient evidence to charge him with involvement in his wife’s murder. In 1982, a friend of Edmond Carriere’s by the name of Richard Grebauski was indicted by a Barnstable County Grand Jury in connection with Carriere’s murder, but the charges were dropped in 1983 when Philip A. Rollins, the then-Barnstable County District Attorney, determined there was insufficient evidence to go forward with the trial. From that point until 1999, while the case remained technically open, no progress was made, and most of the previous investigators on the case had either retired or died.

Then, in 1999, a state police sergeant by the name of Paul White who was then assigned to the Massachusetts State Police cold-case squad, and a trooper by the name of Chris Mason, took up the investigation anew. In April 2000, a special Grand Jury was appointed to examine evidence in the case. In 2001, Carriere’s four adult children also hired a private investigator by the name of Terrence O’Connell to investigate their mother’s murder. All these efforts yielded new results: In 2003, two men were indicted by a Barnstable County Grand Jury for the murder of Frances Carriere: Richard Grebauski, of Wareham (the same individual who had narrowly avoided being tried for Carriere’s murder in 1982,) and a Steven Stewart of Brockton. In 2004, curiously, Richard Grebauski died in a motorcycle accident while visiting none other than Edmond Carriere in Florida.

In 2005, a Barnstable County jury convicted Steven Stewart for the murder of Frances Carriere, and he was sentenced to life in prison without the possibility of parole. During Stewart's 2005 trial, witnesses testified that during a card game, Carriere offered them money to kill his wife. At that trial, there was additional testimony that Carriere allegedly paid Richard Grebauski $10,000 for the killing. Grebauski was alleged to have then paid Stewart $5000 of that money to join him in the murder. With Stewart’s conviction, justice seemed to have been done.

However, in 2009, on appeal the Massachusetts Supreme Judicial Court overturned Stewart’s conviction and ordered a new trial, ruling that a witness at Stewart’s earlier trial was improperly questioned by the prosecution. Stewart’s new trial was scheduled to begin in a few weeks, when the Barnstable County District Attorney’s Office was faced with a Hobson’s Choice: Take the risk that without the prior witness (at Stewart’s 2005 trial) being available for testimony, Stewart might receive an acquittal at the new trial - or “do a deal with the devil”: Strike some acceptable plea bargain with Stewart (one of the two men who actually committed the murder,) in exchange for his testimony implicating Edmond Carriere.

That’s one tough choice, legally and morally: What to do? Risk that both men remain free, or find some small satisfaction that Stewart had already served seven years for Frances Carriere’s death, and secure a way to convict the man that almost all investigators believed was the master planner of this murder – Edmond Carriere? District Attorney Michael O’Keefe made the deal: Instead of re-trying Stewart on a charge of murder one, he would allowed Stewart to plea guilty to a reduced charge of voluntary manslaughter, with a joint recommendation (i.e., agreed to by both the prosecution and Stewart’s defense attorney,) that Stewart’s sentence be reduced to time already served (seven years.) Again, not an easy choice. But life isn’t about easy choices – especially life as a prosecutor or criminal defense attorney.

Yet all four of Carriere’s four adult children celebrated this decision and the indictment of Edmond Carriere. "This has been a long time in coming," said Linda McCraney, one of the Carriere's four children, who now lives in Florida. "I can't tell you how happy this makes me. None of us — my sisters, my brother, my aunt or me, would be in this position now if not for what my father did to my mother 30 years ago. Our lives were changed in ways that no one could have expected.” Over the years, the Carriere children have maintained that their father believed that his wife would be awarded their house if their divorce proceedings that were underway at the time, continued forward. They’ve stated that their father was convinced that their parents’ home would substantially increase in value because of state highway plans in 1980 to extend Route 25 directly to the Bourne Bridge and to develop a new rotary near the exit ramp in Buzzards Bay, and he didn’t want to lose the house to his wife in divorce proceedings.. (Prior to these highway changes, traffic to the Bourne Bridge had to pass through Wareham and the center of Buzzards Bay.)

As a Boston criminal defense lawyer, it’s my professional obligation to presume a defendant innocent. But I can say that when four adult children literally celebrate the arrest and indictment of their own father for their mother’s murder, (coupled with all the other evidence in this case,) little more need be said.

From the day this murder occurred, Edmond Carriere has long been a suspect in this case, by seemingly everyone involved in it over thirty years’ time. It seems now that, in this case at least, justice delayed may not be justice denied. This trial will be interesting to follow.

I often get questions from readers and friends as to exactly what the charge of “resisting arrest” means. I’ve represented many clients on this charge (successfully, avoiding many convictions,) and I can assure you that this area of criminal law can be extremely murky.

The very term “resisting arrest” is a vague one. Exactly what does that mean? Obviously, an act such as physically fighting with a police officer who is attempting to make an arrest would clearly qualify as “resisting.” But assume for a moment that a person were to do something as non-combative as take a step or two back from an officer who was attempting to make an arrest of that person. Would that constitute “resisting” arrest? What about walking away from the officer? What about running away? In my career as a Boston criminal defense lawyer, I’ve seen dozens of scenarios where clients are charged with “resisting arrest.” Some of those charges were justified; many were not.

Essentially, this area of law boils down to a police officer’s power to make an arrest. Depending on the particulars of every given situation, (which are always fact-driven) those powers can be very broad. It is the wide breadth of those powers that can lead to abuses by some police officers. Bear in mind: My writings are not intended to criticize police officers in general, or particular police departments within the Commonwealth of Massachusetts. The vast majority of police officers are responsible stewards of their authority, and I have great respect and appreciation for a great many of them. But, as is the truth with any occupation or profession, there are always some individuals who abuse their power and positions of authority. That is one reason why criminal courts exist.

A perfect example of such an abuse occurred with a recent client of mine: Waiting in line to get into a Boston nightclub, the client was told by a police officer on a paid detail (i.e., the officer’s shift was paid for by the nightclub,) to leave the waiting line, simply because he had asked to step inside for a moment to alert his friends, who were unaware where he was, that he was waiting in the line outside the club. This very aggressive officer told the client that if he didn’t leave, he’d be arrested. As the officer threatened him with arrest, the client backed away from him, and the officer charged him with “resisting arrest.” While I was successful in preventing this client from receiving a conviction, the police department involved pressed their case aggressively with the District Attorney’s office involved.

Recently, the Massachusetts Supreme Judicial Court (SJC) provided some clarification as to what kind of conduct does and does not legally constitute “resisting arrest”. In my opinion as a Norfolk County criminal defense lawyer, the decision doesn’t provide all the clarity it could have, but it’s an improvement. The ruling, in Commonwealth v. Quintos Q, a Juvenile SJC No. 10517 (decided June 21 2010,) held that a suspect who runs away from police after being ordered to “stop”, cannot be charged with resisting arrest for solely those actions and those actions only. In contrast, however, the SJC also ruled that a fleeing suspect who puts officers' lives in danger in the process of pursuing him, can be charged with this crime.

Commonwealth v. Quintos Q involved the June 2006 arrest of a juvenile who fled Stoneham police after officers shouted “stop”, during an on-foot pursuit that followed a car chase. The defendant was arrested, when he ran down a dead end street. When being arrested, the defendant was not combative with the officers and submitted to their custody. The court ruled that "In the circumstances here, a passenger in the vehicle, innocent of any crime, could not reasonably be said to understand the pursuit and the words, ‘Stop, police,' to mean more than simply an order to stop.” In the second case, Commonwealth v. Montoya SJC No. 10526 (also decided June 21 2010,) the court ruled that police were legally justified in charging this defendant with resisting arrest, and based its reasoning in the fact that the defendant supposedly placed officers’ in danger in the process of fleeing. This arrest occurred in Holyoke in 2005, as police officers pursued a shooting suspect who fled the scene on a bicycle. With guns drawn, police ordered the defendant, who they suspected had just committed the shooting, to stop. The defendant then abandoned the bike and fled on foot. He then ran through an opening in a fence and jumped 20 to 25 feet into the water of a canal below. The officers stopped their pursuit before reaching the fence, but the defendant was arrested later. The defendant’s lawyers argued that he should be acquitted on the resisting arrest charge, because it was the officers who placed themselves in danger by chasing the defendant, but the SJC disagreed.

As a Dedham resisting arrest lawyer, I find the reasoning between these two cases to be rather amorphous. It could be argued that anyone who flees from police, is triggering a pursuit (whether vehicular or on foot,) that could expose an officer to danger. Exactly where are lower courts to draw the line in deciding when and where a police officer is and isn’t placed in “danger”, when pursing a suspect? If someone flees police by running across a street that has little vehicular traffic on it, that would seem to preclude a charge of “resisting arrest; if that same suspect were to run across a street with minor to modest traffic, would that then legally constitute resisting arrest? Where is the limiting principle, grounded in pragmatism? This decision seems to create more confusion than clarity.

Keep reading this blog: I'll keep an eye on this evolving area of criminal law.

In my last post on this subject, I discussed the irresponsibility of some organizations and media outlets, in taking extreme license in promoting legally invalid definitions of rape. In that post, I had mentioned views advocated by some colleges and universities.

When it comes to the university and academic community, consider the views of no less august an academic institution than Harvard University. In 1992, Harvard assembled a University Date Rape Task Force to study this problem and make recommendations for legislative changes in this area of Massachusetts sexual assault law. Shockingly, that report defined the majority of consensual sex between a couple as "rape" by the male, and proposed the most far-reaching restrictions of consensual sex imposed by any secular university in America. How? By requiring that almost all sex acts between a couple meet the requirements of a veritable contract negotiation, involving “expressed consent” and/or “reasoned consent” in advance of any sexual contact whatsoever. Apparently, in reaching these recommendations, one can only surmise that most of these task force members never had sex themselves.

Consent to sex rarely if ever involves negotiations and “expressed consent.” It is almost always the product of just the opposite: An escalating series of amorous exchanges which produce decreased reason and increased passion. More so, people in sexual relationships learn their partners' preferences, enabling them to interpret what their partners want, without expressed discussions. Harvard University’s task force wanted to deem any sexual act engaged in by a couple as "rape" unless it occurred following an openly articulated, explicitly communicated "yes" by the woman (note: the report never even mentioned the possibility that a man could be the victim of a same-sex rape.) This Harvard-produced report ignored the fact that most couples often have sex without explicitly discussing it beforehand. It’s called spontaneity, the last time I looked. According to the Harvard report, rape encompassed "Any act of sexual intercourse which occurs without the expressed consent of the complainant."

Thankfully, several of those recommendations were never fully implemented at Harvard, and that all occurred 18 years ago. So why is it relevant now? Because it created a wave of hysteria about what “rape” legally is and isn’t; it dovetailed on the appearance of GHB and other date rape drugs; and this report and others has fed radical feminist agenda to expand the legal definition of this crime, to include events and actions that would never before have been considered “rape”. Think not? Consider the emergence of a new term of art in this area of law – this one now called “Gray Rape.” This 'creative' term has been developed to describe any act of sex occurring between two people (heterosexual or homosexual) which:

• Does not involve any violence, or the threat of any violence
• Does not involve any coercion or pressure
• Does not involve the covert use of any intoxicating or sedating drugs or chemical substances

but which involves some element of second-guessing or regrets, “the morning after”, or following the sex that transpired. Thus, if someone engaged in sex and did not object, but later had “second thoughts” about whether he or she really should have had sex (for any reason at all - religious, cultural or otherwise,) the other partner might be charged with being a rapist.

Do not make the mistake of thinking this doesn't happen, or that if it does, it happens rarely. Just recently, I defended a college student accused of "date rape." An investigation of the facts showed that the young man accused was no more guilty of rape than you or I. The young woman involved had learned that the accused (her boyfriend,) had cheated on her with another woman, and she wanted revenge. So after they had sex at a dorm party, she accused him of spiking her drink with another drug that she had already ingested herself. These stories are not rare. They happen all the time. Due to my efforts as his defense attorney, this young man was acquitted. Another person might not be so lucky.

Media efforts to publicize these inapplicable “definitions” of rape, is what leads many people to file rape and/or sexual assault charges against innocent defendants in Massachusetts. Rape laws were developed to punish horrifying acts of violence and physical violation, and indeed they should. Date rape laws were later passed to deal with this legitimate problem, also. But women’s magazines who trumpet sex on every cover (are you listening, Cosmopolitan?) would do more justice in this area by concentrating on what rape really is, and what it isn’t, instead of feeding baseless chatter just to sell their magazines.

In the meantime, while each allegation of rape should be taken seriously, the underlying facts should be taken equally seriously. An entire life can be ruined with the pointing of one dishonest or misinformed finger.

Date Rape, also referred to as “Acquaintance Rape” can be a serious problem, and is real.

Notwithstanding that the media have been reporting date rape as a new phenomenon, primarily due to the covert use of an anesthetic drug, the practical reality is that drugs (most frequently alcohol,) have been involved in social situations culminating in Massachusetts sexual assaults since Prohibition ended, and even previous to that. The use or ingestion of chemical substances (primarily alcohol) during social or dating encounters is almost universal, and as a drug alcohol is notorious for lowering inhibitions, especially sexual inhibitions. The most recent difference – and a major one – surrounding date rape, involves the the covert, or secretive, introduction of a sedating drug into someone else’s (the victim's) drink. Rohypnol and Gamma hydroxybutyrate -- GHB -- are two of the most common substances used in drug-facilitated sexual assaults. Rohypnol is known on the street as "roofies."

The Massachusetts Legislature has proscribed this activity on a statutory level, in M.G.L. Chapter 272: Section 3: “Whoever applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person shall be punished by imprisonment in the state prison for life or for any term of years not less than ten years.” In a legally “pure” date rape scenario, after unwittingly ingesting the drug, the victim is rendered unconscious or so sedated that he/she cannot either formulate or communicate his/her consent or lack of it.

It is that absence of consent which can create the legal basis for a charge of rape. If one cannot mentally formulate the requisite consent to engage in some type of sex, then any sexual acts that follow are by legal definition non-consensual. The best way to think of this is to consider someone who is developmentally disabled (intellectually or emotionally.) Such a person lacks what is known as the “legal capacity” to consent to sexual conduct. (A similar, though not quite entirely analogous legal concept, is present is cases of statutory rape, where the law “vitiates” consent on the part of the underage party, because the state deems anyone under a certain age to lack the capacity to consent to sex at that age.) However, in cases of date rape, it is not just the absence of consent that forms the basis of the charge. It is the concomitant, covert introduction by the alleged perpetrator of a sedative drug or substance that the victim was unaware of – thus indicating the perpetrator’s intent to deprive the victim of consent.

Thus, when a “true” version of date rape occurs, it is justifiably a serious crime, aside from being morally objectionable. And when this truly occurs, criminal prosecutions are appropriate –just as a legal defense is appropriate. The problem with these cases, arises not out of the “clear-cut” situations, but out of the more nebulous areas involving sexual conduct between two people. And by the way, this problem is not an entirely heterosexual problem – it occurs quite commonly between gay men, and gay women. This area of law is not limited to just the “he said-she said.”

The more difficult problems arise when an allegation of “date rape” is made against someone, without the covert use or introduction of any sedating drugs such as GHB or “roofies,” and without the presence of violence or threats of violence. As a Massachusetts rape defense lawyer, I can assure you that these kinds of accusations are becoming more and more common – chiefly due to legally unfounded and exaggerated definitions of “date rape” that have been advanced by feminist groups and several politically-correct and legally-nervous colleges and universities. (Colleges and universities are notoriously fearful of being sued for civil liability – specifically negligence and premises liability - following an allegation of on-campus rape.) These interest groups and academic organizations, in my view, have taken the existence of a clearly objectionable and repugnant idea (covertly drugging or sedating someone, to allow a perpetrator to engage in non-consensual sex,) and have used that repugnant practice as a justification to try and promote “new” and expanded definitions of rape, magnifying traditional legal definitions to encompass and include actions and circumstances that would have never previously met the legal definition of rape. Many, though not all, of these “new and expanded” definitions of rape have been advocated by feminist advocacy groups, many (though not all) of whom have a decidedly anti-male bias. (These same radical feminist groups won’t like that honest characterization, but then again they attack anyone who disagrees with their views.)

I'll discuss more of these extremely unwise approaches to redefine rape, in my next post.

Media Reports that Boston police seized almost a ton of marijuana earlier this week, will be seized on by marijuana opponents as dramatic evidence of a serious problem in our society – one that must be eradicated no matter what the cost to taxpayers, no matter what the waste in police and prosecutorial resources. From these corners, I’ve heard comments that say this is “Proof of how much of a problem we’ve got.”

I’ll agree we have a problem: But it isn’t the amount of pot that’s stored or circulating in Massachusetts, and isn't Massachusetts crime – it’s the wasted financial and human resources that we spend trying to punish something that, when carried in modest amounts, isn’t even criminal anymore in this state. It has always struck me as amazing, how diehard opponents of marijuana can neither see nor learn from the lessons of this country’s failed, regrettable and ultimately tragic efforts at Prohibition in the 1930’s. That ill-conceived effort created more collateral crime, and caused more loss, deaths and heartache than had ever been conceived before its passage.

Criminalizing alcohol only spawned more crime, in the form of “protection money” to hide alcohol supplies; extortion to keep public officials and others silent about the use and location of it; and smuggling rings operated by organized crime (ever wonder where the name “Smuggler’s Notch” in ski country came from? It was a route alcohol smugglers used to illegally bring the product down from Canada, into New England.) These collateral activities resulted in violence, shootings and death on a shocking level. Police raids were conducted of ‘Speakeasies” where otherwise lawful people had to hide in basements just to socialize with a drink; “Dealers” came to prominence, who used violence to keep their territories and supply intact; Gang and turf wars were created, by competing underworld networks who battled to control the supply and availability of alcohol. Prohibition gave birth to Al Capone, fertilized and nurtured organized crime, and cost the nation and the states enormous money and law enforcement resources. The entire effort was a massive public policy failure, costing untold amounts of money and ruining many lives in the process. The federal government finally realized this failure, and made the sound decision to legalize the substance, regulate it, and tax it. Officials finally saw that any substance can be abused, that as human beings we are somehow pre-disposed to to seek relaxation from various natural substances, and that regulation and taxation of these products is the far wiser, more rational course than fighting something that cannot be defeated.

Why can’t opponents of marijuana legalization see obvious lessons learned here? In this recent pot bust of almost a ton of marijuana, many law enforcement officials see evidence of a widespread problem. I see evidence of millions of dollars in tax revenue lost to the state of Massachusetts, had we the intelligence to see that this substance is no more harmful than alcohol, and had the common sense to regulate its commercial sale, and tax it. As to the issue of harmfulness, it is a fact that, on a level of addiction potential – marijuana is far less harmful than alcohol. I see evidence of law enforcement resources that are wastefully re-directed to “combating” a substance that has been decriminalized by public referendum in Massachusetts, when carried in small amounts (an ounce or less.) I see police officers that could be combating serious crime – Massachusetts murders, Massachusetts rape and sexual offenses, robberies, sexual abuse of children, and truly serious Massachusetts drug offenses such as heroin and crack distribution (which, without a doubt, should be illegal.)

I see District Attorneys’ offices and staff prosecutors across Massachusetts who could be spending their time and talents (and tens of millions of dollars) on prosecuting violent crime and domestic abuse. While many law enforcement and District Attorneys’ offices will point to the sheer amount of pot found in this seizure and cite this as evidence of the ‘enormity’ of a ‘problem’, I see that amount being distributed (as alcohol is now legally) to a lot of recreational users across the state, largely in small quantities. Do the same people who dramatize that it was “a ton” of marijuana seized, realize how much all the alcohol sold in Massachusetts just this very day would weigh or amount to, if it were measured? Far, far, more than a ton – yet alcohol is legal, regulated, and taxed. And in this ton of marijuana, all I see going up in smoke is critically needed tax revenues that could be used to fight serious, violent crime. It is these tax dollars that could instead go to house the homeless, feed hungry kids, protect victims of domestic abuse, provide greater access to health insurance programs, and a host of several other laudable objectives. Instead, this money is used to prosecute users of a largely harmless substance that has been decriminalized in this state.

And in case opponents of this opinion think this view is without support, I’d suggest they review the opinions of a widespread (and widely respected) national association of major retired law police and enforcement officials, who share this view and advocate legalization, regulation and taxation of marijuana. Their organization: Law Enforcement Against Prohibition (LEAP).

In the interests of full disclosure, I think I should make it clear: I personally do not smoke marijuana. But based on over 35 years of observing others who have used marijuana (whether in college years, or afterward,) I do not believe this substance is especially harmful; I have yet to see anyone become “addicted” to its use in the widespread manner that I have seen alcohol addict countless people I know and have known. I simply view this as a civil liberties issue. In my professional career as a Boston criminal defense lawyer over 20 years, I have seen more examples of police and court resources wasted on marijuana prosecutions than I care to recall. I’m confident that if I were ever considered for a judicial appointment in Massachusetts, marijuana opponents would cite this post as a reason against my appointment to the bench. My position as an attorney and officer of the court in Massachusetts has always been clear: Criminal law must be adhered to, and I remain committed to that view. But the legislature should wake up to the public referendum approving decriminalization of marijuana, wake up to our deteriorating state revenue posture, and use common sense on this subject.

This past Wednesday night, the Massachusetts House voted, 138-17, to approve legislation that would both reduce the waiting periods now required for sealing criminal records from public view, and prohibit employers from asking job applicants about prior criminal records on initial job application forms.

As my readers know, I’ve blogged previously about CORI reform efforts in Massachusetts. As I’ve said in this blog and elsewhere, a big problem complicating reform efforts in this area of Massachusetts criminal law, is that different people – especially employers – have different needs for this kind of information. Some need very extensive information, such as public safety employers, financial institutions or child-care providers. Other types of employers don’t typically need this kind of detail. Strict law-and-order advocates want each person convicted of any crime at all, to be required or produce a detailed record. Others feel that someone who has been found guilty of a relatively minor offense should not have to carry a “Scarlet Letter” for that offense, potentially foreclosing a number of opportunities for them in the future.

The legislation passed by the House the past week, would change present law to allow sealing of felony crime records 10 years after sentencing for an offense, instead of the current 15 years. The bill’s advocates argue that it will reduce barriers to jobs and housing now faced by hundreds of thousands of Massachusetts residents with prior criminal records. The House bill would also permit sealing of misdemeanor convictions from public view, such as Masschusetts assault and battery, or simple assault after five years, versus the current 10-year waiting period. House Judiciary Chairman Eugene L. O'Flaherty, D-Chelsea, said the intent of the current measure, the product of several years of legislative work, is supported by national studies that show that convicts who remain out of the criminal system for six or seven years after committing previous crimes, are less likely to re-offend. O’Flaherty and other advocates of the House bill argue that the reforms are “smart on crime as opposed to being weak on crime”, in that the reforms supposedly encourage convicts with prior criminal records to join the workforce. That may be true, but all it’s going to take to knock this argument down, is the media reporting just one Massachusetts murder or Massachusetts rape case committed by someone with a CORI who didn’t have to report a prior violent crime he or she committed because it was older than ten years, and, to be blunt, all hell will break loose.

The Massachusetts Senate is currently offering its own version of CORI reform, but its version provides for early parole for non-violent offenders now serving mandatory sentences, after they complete two-thirds of their sentences. The House version passed last Wednesday doesn’t contain this provision, which is designed to direct inmates to treatment programs after their early release. As is customary, differences in the two bills will be worked out in conference committee, before any final bill is sent to the Governor’s office. For the record, however, three points about the House version: 1) Police departments would continue to have immediate access to all criminal records of any kind; 2) Crimes involving Massachusetts murder or manslaughter would not be subject to sealing; 3) Massachusetts Sex offense records could not be sealed and would remain accessible to the general public.

Regardless of what comes out and is finally enacted into law, it will hopefully be a balanced approach to providing employers and the public with the information they need about someone’s prior criminal history, as well providing persons convicted of certain crimes with ability to begin anew without being “marked for life.” To give readers an idea of just how many people could be affected, a recent Pew Charitable Trust study indicates that one in 24 adults in Massachusetts, or more than 200,000 people, were either in jail or on parole or probation in Massachusetts at the end of 2007. If that’s not enough, even higher numbers than that are estimated to have older criminal records that would affected by the legislation.

The U.S. Supreme Court’s ruling earlier this week, that juvenile sentences of life without parole in non-homicide cases violates the Eight Amendment’s ban on cruel and unusual punishment, brought humanity and civility back into many courthouses across the United States. No one, this writer included, doubts that juveniles can commit the most horrific of crimes. Nor do I doubt that, if convicted, those juveniles deserve swift and certain punishment – often including lengthy incarcerations. But for too many juvenile defendants in too many courtrooms in this country, “justice” has resulted in sentences of life without possibility of parole (“LWOP,” in criminal law circles,) and in many cases these sentences have produced a severity that is devoid of mercy, and devoid of hope.

Even more disturbing, is that in the vast majority of these non-murder cases, the sentences of life without parole that have been given, have been the product of mandatory sentencing, the dangers of which I have written about previously. Mandatory sentencing has been nothing less than judicial handcuffing, a knee-jerk reaction to crime often producing the worst of legal injustices while almost never achieving the claimed result of lowering crime rates. The Supreme Court’s ruling this past Monday in Graham v. Florida is just such an example of a horrid injustice produced by mandatory sentencing laws. The petitioner in this case, Terrance Jamar Graham was sentenced to a mandatory life term at age 17, without possibility of parole, after he violated his probation sentence for an earlier home invasion robbery; the year before that he was involved in an attempted robbery of a Florida restaurant. Obviously, this kid was trouble. Obviously, he needed to be taught a lesson, and obviously, that lesson needed to involve considerable jail time.

But to sentence a 17 year-old relatively small-time offender to life in prison, without the possibility of parole, for a probation violation? That was facially cruel and unusual, and it was a victory for justice and fairness that the Supreme Court heard this case and ruled as it did. Many such sentences have resulted from crimes that involved far less serious offenses, such as drug offenses, sexual assault and even assault and battery. Approximately129 juveniles in prisons across the U.S. are serving such sentences.

While some of these cases involve less serious crimes, many of them involve very serious offenses – and this ruling does not limit the ability of judges to punish such defendants severely, with lengthy prison sentences, when the facts merit such. All it says it that the government cannot preclude the possibility that these convicts, sentenced as juveniles, can at some point in their adult future make at least an argument for their release back into society. Notably, this ruling does not guarantee the release of such convicts. Many of them will spend 10, 20, or more years in prison before they even get the chance to make a case for their release. And when such convicts do offer their arguments for parole, many will be denied. But it affords convicts who have been sentenced as juveniles, at the very least, the opportunity to make their case for release at some point in the future. To quote Justice Anthony Kennedy, who wrote the majority opinion for the court, "The Eighth Amendment does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life." It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society."

Importantly, the court reaffirmed the fundamental basis for differentiating between juveniles and adults in criminal sentencing. Citing earlier decisions it issued on this point, the court said that, as compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are not as well formed. These realities mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” As a result of these factors “Juvenile offenders cannot with reliability be classified among the worst offenders. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.”

The majority's reasoning reflects widely-recognized differences between an adult and a juvenile personality. Someone under the age of 18 has not yet developed fully into a mature human being – emotionally, psychologically or even physically. Scientific and medical data have shown that generally speaking, juveniles are less able to assess risk, control impulses and comprehend consequences, than are adults. While without doubt juveniles can commit crimes equally horrific to the crimes adults commit, their capacity for growth and change is greater than in adults. To foreclose the possibility of penitence, growth and reversal in character, is not only cruel and unusual, such sentencing ignores and denies the human capacity for positive change - the capacity for correction that our corrections system is supposedly based upon.

The Graham ruling will be widely felt in criminal courts across the U.S. The ruling will invalidate sentencing laws affecting life without parole for juveniles in at least 37 states, including New Hampshire and Rhode Island here in New England, as well as the District of Columbia and the federal government. However, the court’s decision does not affect seven states, including Massachusetts, Connecticut and Vermont, which allow life without parole for juveniles in cases of homicide. Also, there are six states that do not use this penalty for any juvenile offenders at all, and this ruling obviously does not affect those states.

Again, the court's decision in Graham does not prevent or limit a judge's ability to deliver lengthy and harsh prison sentences to juveniles when warranted. It only recognizes that juvenile sentencing should take into account the possibility of the positive change that can accompany human maturation beyond juvenile development.

Importantly, this ruling does not apply to juveniles that have been sentenced to life without parole for murder convictions. It applies only to non-murder convictions. Hence, convicts such as John Odgren, recently convicted of Murder One here in Massachusetts last month and sentenced to life without possibility of parole, will be unaffected. I think the Odgren case presents the penultimate case for the court to examine the constitutionality of juvenile sentences of life without parole in murder cases, and it remains possible that in the future the court may address such a case, but for now, those convictions remain unaffected.

Here’s an interesting question someone put to me recently. It has to do with rape and sexual assault:

“Let’s assume that I decided to pretend I was gay to get in with the more trendy women who hate me for being a “heterosexual pig.” Assume I got such a woman back to my place (on the pretext that I was gay,) and she starts coming on to me, saying I should try it (sex with a woman,) as I might learn to like it. Now assume I said something like “OK; I suppose if we really must, I’ll try it.” Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?”

Well, well – Creativity never ceases, no? This man’s question is premised upon a legal concept known as “Fraud In the Inducement.” He’s borrowed this legal concept from contract law, and the theory has been used in legal practice areas as seemingly disparate as business litigation and family law/domestic relations law. This legal theory – essentially a defense – holds that if someone is enticed or induced to enter into a contract based upon fraudulent representations, then that contract is either void or voidable (“void” meaning “Void Ab Initio”, Latin for “Void from the beginning”; and “Voidable” meaning, cancellable at the election of the party claiming fraud.) In business litigation, for example, if one party to a contract has been induced to enter the contract due to material misrepresentations, the party seeking relief may be entitled to relief from the obligations imposed upon him in the putative contract.

In a family law or domestic relations situation, if one party to a marriage has been enticed to enter into the contract based upon fraudulent representations, the marriage may be deemed void. A classic law school example of this, is the “spouse” who, prior to entering into the marriage, represented that he or she wanted to have children, when in fact the person never intended to have children. After the marriage is consummated, he or she declares that children will never be produced from the marriage. Fraud of that nature can lead to a judicial declaration that the marriage was “Void Ab Initio.” As similar example of “Fraud In the Inducement” of a marriage, would involve a “spouse” who represented to his/her partner that he or she was the product of or a member of a prominent family (say a Rockefeller or similar,) when in fact they never were.

The gentleman who asked the above question, however, has confused this legal concept with another criminal law theory that is used in cases of consensual sexual relations that result in the transmission of sexually transmitted diseases, or STD’s. This is the type of situation that occurs when one person, who is aware that he or she carries an STD, engages in consensual sex with a partner without informing that person of the fact that he/she has an STD. If the unwitting partner contracts that disease, the deceiving, or “silent” partner (as it were,) can be both charged criminally with Assault and Battery, as well as sued civilly for damages that result from that STD infection.

The legal basis for both criminal penalties and civil liability in this instance, is premised upon the absence of “valid” consent. Even though, in the example of an innocent person contracting an STD, both parties seemed to “consent” to the sex, “valid” consent would be lacking, as the “consent” that was granted by the innocent party, was obtained through fraud. The “fraud” in this context is the failure to disclose that the non-innocent party carried a communicable disease (an STD.) The legal theory providing for both criminal penalties and civil liability in this example, is based upon battery, which is the unconsented-to physical contact with another person. While inoffensive contact such as bumping into someone in a public setting is deemed “implied consent” and thus not actionable on a criminal or civil basis, sexual contact does not fall in this category.

Therefore, the answer to the question posed at the top of this post, “Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?” is, as of current case law in Massachusetts, "No." However, I wouldn’t suggest that eligible singles – men or women - resort to this tactic. In the beginning, end and middle of everyday actions, there is something called self-respect, and behavior like this doesn't reflect it. Better to become a more honest person, hit the gym, or both.

Now that the verdict is in on this case, the predictable debate over the insanity defense has followed in the vox populi. A number of media outlets have asked for my legal opinion on this verdict, and I’m proud to say that in the past 24 hours, I’ve appeared as a legal analyst on WGBH-TV’s Greater Boston with Emily Rooney, WBZ-AM Radio 1030’s Night Side With Dan Rea, as well as given interviews to New England Cable News and The Boston Herald.

Attorneys, editorial writers, bloggers and persons famous and unknown have opined about this case, this defense, and the verdict. Unscientific polls taken by some media (primarily the conservative talk radio show set,) have shown overwhelming support for the jury’s Guilty verdict. That’s understandable. Given that some of my statements to the media may have been received a little out of context, I’d like to put my position in writing for the record, here. For brief revisit of the insanity defense, see my previous post on this case.

A verdict of Not Guilty By Reason of Insanity does NOT mean that the defendant is released back into society, as though the verdict were simply “Not Guilty.” Essentially all defendants found Not Guilty By Reason of Insanity are committed to the state psychiatric hospital (Bridgewater State Hospital,) where they spend decades if not their entire lives behind bars and barbed wire. Also, a state “psychiatric hospital” is anything but a “hospital”, in the conventional sense of the word: It is the state prison for the criminally insane- surrounded by barbed wire, armed guards, searchlights, and everything you’d expect in a prison setting. While these defendants have a legal right to have their incarceration reviewed periodically, they are almost never released back into society. That’s just the practical reality.

Now that those issues are out of the way, some clarifications about where I stand on this defense: Some of my comments in the press seem to give the impression that I’m a strong advocate of the insanity defense; somem indicate that I believe that in this particular case, John Odgren should have been found Not Guilty By Reason of Insanity. Let me be clear: Neither is true. 1) As a Massachusetts murder defense attorney, I am not an advocate of using the insanity defense, for the primary reason that it almost never succeeds. 2) I believe that in this particular case, the evidence submitted into the record warranted a finding of a straight “Guilty” finding. What I said to the media, is that I believe that, when no other plea options are otherwise available, and when the evidence warrants it, a defense attorney should use the insanity defense and argue it vigorously. In the Odgren case, I think Odgren’s defense lawyer (Jonathan Shapiro) had no choice: One needn’t be a lawyer to see the limited options he had here: Odgren was found over the victim (James Alenson,) murder weapon in hand, his hands and clothes soaked in blood, admitting to all around him that he committed the murder.

The only other possible option that Odgren’s lawyer might have had (and I don't know whether he had this optiuon or not,) was to attempt to negotiate a plea agreement with the office of Middlesex County District Attorney Gerald Leone, to reduce the charge to a lesser offense, such as Murder In the Second Degree, etc. The benefit of such a possibility, is that if the District attorney were willing to agree to a plea bargain for perhaps Murder Two, a life sentence would be imposed, but the defendant would have the possibility of parole in 15 years (an additional benefit is that the victim’s family would be spared the ordeal of a trial, re-living the events of the murder.) However, a jury verdict of Guilty on a charge of Murder One caries a life sentence, with no possibility of parole, ever. The possibility of a potential plea deal, however, exists only if the District Attorney is willing to offer the plea. In this case, we don’t know whether District Attorney Gerald Leone was willing to go that route. My guess is, he wasn’t. Speaking practically, he would have had little reason to: The evidence against Odgren was overwhelming, and the success record on the insanity defense in Massachusetts is almost zero. So from the Commonwealth's perspective, why entertain a plea agreement?

That likely scenario (i.e., where no plea bargain was possible,) left Odgren’s lawyer with no choice. When I told the Boston Herald on April 29 2010 that Odgren’s lawyer “followed his conscience” in arguing this defense, I meant that his lawyer was making the best he could of the only defense option he was probably left with – the insanity defense. (And if I’m wrong about that, and the District Attorney was willing to offer a plea of Murder Two but Odgren’s lawyer rejected it, then I would characterize that decision as foolhardy.) I did not mean that I felt that an insanity defense was the one I would have chosen, if I had the option of negotiating a plea agreement. I did not mean that it is my opinion that the insanity defense is something that should be used often, or lightly. Nor did I intent to communicate that I felt Odgren was, in fact, legally insane at the time of this murder. I don’t feel the insanity defense should be used, unless there is no other legal option possible – largely because the success rate on this defense is so low. And importantly here, as a Norfolk County Massachusetts criminal defense lawyer, I don’t believe that John Odgren was legally insane at the time he committed this murder.

I believe that Odgren had several emotional problems, and apparently suffers from a mild form of Apserger’s Syndrome – but based on the evidence offered into the trial record, I don’t think he was, legally, insane at the time of the murder. Hence, I believe that the jury’s Guilty finding was, on a purely legal level, justified. A number of evidentiary factors cause me to arrive at this conclusion – most notably the following:

• Odgren had told several people prior to this killing that he knew how to plan the “perfect murder.”
• He had planned out the murder well in advance, choosing the particular bathroom in the high school and had planned an escape route (which became foiled when the victim stumbled out of the bathroom and out into the school hallway. There was also a witness in one of the bathroom stalls.)
• He exhibited consciousness of guilt immediately after the attack, telling people he shouldn’t have stabbed the victim.
• In tape-recorded phone conversations Odgren had with family members and friends from the jail before trial, he boasted of different stories he had given to police officers at the crime scene, and to police investigators afterward.
• He also boasted about knowing his Miranda rights when he was arrested.

The sum of these evidentiary factors lead me to conclude that, while Odgren clearly has emotional problems, he was nonetheless aware of what he was doing, was aware of the wrongfulness of his actions, and he exhibited considerable consciousness of guilt both before and after the murder. None of these factors supports a finding of Not Guilty By Reason of Insanity. Nonetheless, the jury did have the option of returning a finding of Murder In The Second Degree, and considering the plethora of Odgren’s emotional problems (which, while they did not render him legally insane, nonetheless left him a very disturbed individual,) and his young age at the time of this offense (16), I believe the jury should have opted for Murder Two. While this murder was barbaric, horrid and without any justification whatsoever, I believe there did exist facts that should have mitigated the jury’s verdict down to Murder Two. Again, while Odgren would have been eligible for parole after 15 years, an almost certain bet is that he would have spent at least twenty years in state prison (meaning he would be almost forty years old by the time he was released, in approximately 2030.) As for the immediate, I believe that Odgren should be transferred to Bridgewater State Hospital to serve his term and receive treatment for his emotional infirmities. Cedar Junction (Walpole) State Prison is not the appropriate facility for this 19 year-old boy. I don’t think that is liberal thinking, and I don’t think it’s conservative. I think it’s simply humane.

This case, which legally merited a Guilty finding, contrasts sharply with the John Salvi abortion shootings case in 1996, where the insanity defense was advanced (with no success.) In that very different case, the defendant was patently, clearly insane. (See my previous post.) Yet, that jury found him sane and guilty, and he was sentenced to life without possibility of parole, in a prison populated with some of the most violent, savage inmates imaginable. Salvi hung himself shortly afterward. Let me be clear: The world lost nothing great when John Salvi killed himself. But I think something of our humaneness was lost, in throwing a clearly insane man into a prison filled with sane but savage inmates. The goal of our criminal courts and the juries within them, is not to deliver vengeance - it is to deliver justice. And I submit that it is not just to throw an insane man into a prison filled with sane men who are some of the most violent criminals imaginable.

To repeat, I don’t 'advocate' the insanity defense. I simply believe that, when the evidence warrants it – as the evidence did in the John Salvi case and has in other cases – juries should be more open to considering it, and judges should be more open to more realistically instructing juries on what happens to a defendant who is so convicted: That the defendant will not walk free, but instead in all likelihood spend decades if not his entire life in a state mental hospital/prison. The public needs to know this, and more juries need to hear this, before they make their deliberations.

Today, John Odgren’s defense lawyer rested his case in the murder trial of the now 19-year-old young man who is accused of fatally stabbing 15-year-old James Alenson in a bathroom at Lincoln-Sudbury High School three years ago. As a Norfolk County Massachusetts criminal defense lawyer, I can assure you: Odgren's lawyer has his hands full with this case.

During the past week, Odgren’s lawyer has called three mental health experts to the stand, (as well as the defendant’s own father,) to bolster Odgren's insanity defense, claiming he was psychotic and delusional when he killed the Alenson boy. As I said, Odgren’s lawyer has his hands full – as does any defense lawyer advancing an insanity defense. The public - and the members of the public who constitute juries such as the one to decide Odgren's fate - are very hostile to the insanty defense. The reason for this is largely owing to a misunderstanding of what "not guilty by reason of insanity" legally means, and what the legal consequences are to a defendant so adjudicated. "Not guilty by reason of insanity" does not mean that the jury found that the defendant did not commit the act he was charged with. Nor does this verdict mean the defendant is "innocent." It means only that the defendant, when committing the crime he was charged with, was so mentally ill at the time he committed the crime, that he could not appreciate the criminality of his conduct or control his actions to conform to the law. More on that later in this post, but for now trust me - the defendant is not set free.

Last week, the prosecution produced its own psychiatric experts when it presented its case, but today the prosecution produced a particular rebuttal witness, and I was rather surprised at the relatively weak professional credentialing and minimal professional experience associated with this expert. In testifying for the Commonwealth, psychiatrist Dr. Alison Fife agreed with the defense's psychiatric experts that Odgren suffered from mental diseases and defects, but disagreed with their assessment of his competency.

Dr. Fife testified, "I think that Mr. Odgren was very aware that he was trying to mortally wound Mr. Alenson." This assessment as to his awareness is key, as whether or not Odgren was able to “Appreciate the criminality or wrongfulness of his actions” is key for the jury, in making a determination as to whether he was legally insane at the time of the murder. What made this expert for the prosecution appear rather weak to me, was her relatively scarce professional experience in making professional psychiatric assessments of juveniles, as well as her extremely limited interaction or familiarity with this defendant. On cross examination, Odgren’s defense attorney pointed out that Dr. Fife interviewed Odgren for the first time, only two months ago, and that his mental state could have changed a great deal from almost three years ago, when the killing occurred. Wisely, the defense also questioned this psychiatrist’s professional qualifications to even examine Odgren, at all. In the process of cross-examination by the defense, this psychiatrist was forced to acknowledge that she’s never even conducted a criminal responsibility evaluation, on someone who was a juvenile at the time of the crime. Not necessarily fatal to the prosecution’s case, but not helpful, either.

Yet it may be that the most pivotal day in this trial occurred last week, when Odgren’s lawyers asked the judge in this case to charge the jury specifically that, if they found Odgren “not guilty by reason of insanity”, he would be "automatically" committed to a hospital for the insane. The reason why Odgren’s lawyers wanted this instruction is due to the widespread misperception – doubtless held by several if not all members of this jury - of what does, in fact, happen to a defendant who is found “not guilty by reason of insanity.” Most people incorrectly think that such a verdict would result in the defendant walking out of the court house, free. Not so, at all. In Massachusetts, such a person would almost certainly (nearly a 100% chance) be immediately committed by the judge to Bridgewater State Hospital for a 40-day evaluation, during which prosecutors or a doctor could petition the court to order him held a minimum of six more months. After that, another commitment hearing takes place, and unless extremely probative, convincing evidence is presented that the individual no longer suffers from the mental disease or defect that caused him to commit the underlying offense, he or she is held at the state mental hospital under what is known as an "involuntary civil commitment." This is what was done with more well-known defendants who have been found not guilty by reason of insanity in other states: John Hinckley (who shot President Reagan,) for example. While the defendant who is so committed has the right to periodically petition for release, it is not at all likely that request would be granted for many, many years to come – if at all.

Some of my readers may recall the John Salvi abortion shootings case in Massachusetts, in 1996. The evidence in that case cried out for a “not guilty by reason of insanity” verdict. The evidence was overwhelming – truly beyond any reasonable doubt – that Salvi was critically, mentally ill. To depart from medical or legal terminology, he was stark raving mad, unquestionably insane. Salvi’s lawyer produced several psychiatry experts who testified that Salvi suffered from pronounced and severe paranoid schizophrenia - that it was beyond question that he did not unerstand the criminality or wrongfulness of his conduct at the time of the shootings. The evidence of his insanity was so powerful and so overwhelming, that the prosecution couldn’t even find a single credible psychiatry expert to testify that Salvi wasn’t insane - the best “expert” the Commonwealth could come up with, was someone with a PhD in Education, who testified he thought Salvi was sane at the time of the killings. The prosecution’s testimony was a joke. Yet the jury found Salvi guilty, as though he were sane. A clearly insane man, he was sentenced to a maximum security state prison, and hung himself not long afterward. Not a great loss to society, but the jury’s verdict only compounded an already-terrible tragedy.

The practical reality is that such “involuntary civil commitments” last for decades, if not for life, in a prison that doubles as a mental hospital. Notwithstanding the defense’s request that the judge inform the jury specifically that the defendant would be “automatically” committed to the state mental hospital for the insane, the judge denied the request. This followed, naturally, the vigorous objections by the prosecution, who countered that they weren’t prepared to discuss what they would request of the judge if the jury found Odgren insane. (This is posturing, of course: In such an event, the prosecution would move immediately for an involuntary civil commitment to the state mental health hospital, and all the parties know that.) However, the judge agreed to consider an alternate request - that she explain to jurors the “likely scenarios” after a not-guilty verdict, to assuage any juror concerns about releasing the defendant back into society, if they returned such a verdict. I think it would be preferable to assure the jury that the defendant would be "automatically" held indefinitely in the event they chose "not guilty by reason of insanity," since this is the practical reality. However, as a Boston murder defense lawyer, it's my opinion that as long as the judge assures the jury that it is "extremely likely" that such commitment would result and the defendant would not be released to society, that would represent a major step forward in these types of cases.

We'll know soon enough.

Not too much time will pass from this point, before we find out what this judge will instruct this jury on, and how this is all going to play out. A verdict of “Not guilty by reason of insanity” is going to be made more likely if the judge reassures the jury on the “most likely” destination of the defendant if they find him “not guilty”, but it’s no guarantee. Juries have always been reluctant to return these verdicts. That’s unfortunate, for two reasons: 1) Many times, the evidence clearly calls for it; and 2) If such a verdict is returned, it doesn’t mean the defendant didn’t commit the act, and it doesn’t mean the defendant walks away free. If anything, a defendant receiving such a verdict ends up in a place even worse than just prison: It’s a state prison filled with mentally insane criminals. How anyone can think that’s “Letting someone off the hook”, is beyond me. Hopefully, more public information and education will correct this widely-held misperception.

Apologies to my readers for the gap since my last post: I was away from my office on a much-deserved trip. Today’s post is about a recent Supreme Judicial Court ruling, which doesn’t bode positively for many criminal defendants who, for a variety of legal and situational reasons, never should have been charged with a crime in the first place. (Yes, this happens a lot more than many people might think.)

Consider the story of one “Tina Boe”, a pseudonym used by court officials to describe the case of the following woman. There are actually two levels of errors that produced a considerable injustice here, so let’s take them one at a time: 1) In a hit-and-run Massacusetts car accident, “Ms. Boe” was mistakenly indentified as the driver of the car who ran from the scene after this accident. In fact, although this car was registered to "Ms. Boe," she was not driving the car when the accident occurred – it was driven by another man. Because the license plate of the fleeing car was written down by someone at the accident scene and given to the police, the police department involved filed what is known as an “Application for Criminal Complaint” against the registered owner of the vehicle – “Tina Boe” – seeking that she be charged criminally with Leaving the Scene of An Accident, a violation of Massachusetts General Laws Chapter 90, Sec 24. The penalties for this crime vary, depending on whether the Operator is charged with one or more of three forms of this offense: A) Leaving the Scene of Property Damage only (Penalty: Fine of $20 to $200; and/or a jail sentence of between 2 weeks and 2 years); B) Leaving the Scene of Personal Injury Not Resulting in Death (Penalty: Fine of $500 to $1,000, and/or a jail sentence of between 6 months and 2 years); or C) Leaving the Scene of Personal Injury Resulting in Death (Penalty: Fine of $1,000 to $5,000 and/or a state prison sentence of 2 ½ to 10 years or jail for 1 to 2 ½ years. Regardless, for this offense there is a minimum mandatory 1 year sentence.) Even for the least of these charges, this is still a serious offense.

When a police department or anyone else takes out a criminal complaint against someone (which often involve offenses such as assault and battery, motor vehicle offenses or sexual assaults,) the person against whom the allegations are made is sent a notice by the court clerk where the complaint was filed, to appear at what is called a “Clerk-Magistrate’s Hearing” (alternatively referred to legally as a “Show Cause Hearing”.) At this hearing the Clerk or Assistant Clerk of the court hears from the person or organization filing the complaint (here, police department involved,) as well as the respondent (the person against whom the complaint was brought,) together with any witnesses. At that conclusion of that hearing, the Clerk will either grant the petitioner’s complaint, and issue formal charges against the respondent, or will deny the complaint, at which point the matter is dismissed, no charges are filed, and no further action of any kind is taken against the respondent. The respondent will have no criminal record of any kind related to that matter, nor will a Probation Record be generated from the matter. If ever asked by a potential employer or any other organization, “Have you ever been charged with a crime?”, the respondent can always answer “No.”

However, if the Clerk allows the complaint, formal charges will then be issued against the respondent, who then instantly becomes a “defendant” in a criminal prosecution. A formal Massachusetts Criminal Offender Record Information (CORI) file is generated, reflecting that the person has been charged with a crime, an accompanying Massachusetts Board of Probation Record is generated, and the relevant District Attorney’s Office takes over to prosecute the case. How it ultimately turns out, always varies. But even if the defendant is ultimately found not guilty of the charge(s), that person will still always have a CORI, and a Board of Probation Record. Therefore, when an Application for Criminal Complaint has been taken out against someone, what happens at such a Clerk’s Hearing (“Show Cause Hearing”,) is extremely critical.

Which brings us to Mistake Number Two in this case: The day Ms. Boe went to court to appear at this Clerk’s Hearing, she was mistakenly directed to the wrong hearing room. Because the Clerk and the police prosecutor awaiting her determined that she “never showed up”, the Clerk allowed the complaint, and formal charges were issued against Ms Boe. At that point, all the negative consequences that I just outlined above (when a complaint is granted against someone,) became a reality for “Tina Boe” – a completely innocent person.

When criminal charges were formally brought against Ms. Boe, and Judge Kathleen Coffey of the Boston Municipal Court learned of these twin errors and the injustice that resulted, she granted a motion the defendant filed, called a Motion To Expunge the Record. As its name implies, this is a Motion to essentially erase the fact that criminal charges were ever even brought in the matter. Its specific purpose is to redress a glaring injustice done to a defendant, when it appears from all the evidence introduced, that the defendant never should have been charged by the Commonwealth in the first place. The judge’s order in this case directed the state Commissioner of Probation to expunge (essentially remove from all public records,) Boe’s CORI and Probation Record. This is fair and just relief, and indeed, Judge Koffey described it as such in her Order.

However, the state Commissioner of Probation didn’t wish to comply, and appealed the judge’s ruling to the Massachusetts Appeals Court, questioning the judge’s authority to issue such an Order. Soundly, the Appeals Court denied the Commissioner’s appeal. When the matter finally appeared settled at that point, the SJC got involved – and ruled that the judge lacked the legal authority to grant the Motion to expunge the record in this case.

In my legal opinion as a Boston criminal defense lawyer, this ruling lacks the fundamental fairness that should emanate from the state’s highest court. While the opinion may be technically accurate in terms of its analysis of the authority that a District Court judge has, it flies in the face of the spirit – and the practical meaning - of the word “justice”. While the court did rule that judges have the authority to seal criminal records – and that judge Koffey could order Tina Boe’s record in this matter sealed – that does little for this defendant as a practical matter. She still has a CORI; she still has Board of Probation record – and always will have both. If she is ever asked in the future by a potential employer, academic institution, or any other organization if she has ever been “charged” with a crime (even though she wasn’t convicted,) she must answer “Yes.” And within this entire matter, she was completely innocent – she wasn’t even present at the scene of the crime.

As I‘ve noted before, my law school professors used to tell me, “Bad cases make good law”, meaning it’s the tough rulings that can often serve higher purposes later on. Perhaps, but tell that to whoever “Tina Boe” really is. I don’t think she’d agree. Aside from the wake-up call to reality that this ruling should bring to the SJC, what this case illustrates is the extreme importance that attaches to the outcomes of Clerk’s Hearings, or Show Cause Hearings. Because these hearings often do not involve a preceding arrest of the person against whom the complaint is brought, they are sometimes perceived by respondents as not being very serious, or requiring a lawyer’s expertise. Such a view couldn’t be more foolhardy. If you or someone you care about has received a notice to appear at such a hearing, whether the complainant is an individual person or a police department – always hire an experienced Massachusetts criminal defense attorney to appear and represent you at this hearing. If you don’t and the complaint is allowed, the consequences will follow you for many years to come.

Continue reading "SJC Ruling: Judges Can’t Expunge Criminal Records" »

As readers of this blog are well aware from my previous posts on the subject of the school bullying death by suicide of Phoebe Prince in January (as well as the suicide death of Carl Joseph Walker Hoover last April 2009, I feel that there should be much stronger anti-bullying laws on the books in Massachusetts – stronger than the one recently passed by the Massachusetts House of Representatives. That proposed law would require school staff members to report suspected incidents and require principals to investigate those incidents. It would also require that schools teach about the dangers of bullying – but it would not make bullying a crime.

There should be a law making bullying in schools a criminal offense- and one can only hope that on the civil side of the law, that courts in this sate and elsewhere will soon issue clear and unequivocal decisions holding school districts, teachers, and school administrators liable for failing to take reasonable measures to stop such vicious assault and battery. Teachers unions and school districts howl in protest at this idea. They and similarly-minded people say that it’s too difficult to adequately “define” bullying on a legal level – that proposed definitions of bullying are “too vague”, and a “threat to free speech.” If the tragic cases of Phoebe Prince and Carl Jospeh Walker Hoover can’t convince these Neanderthals, they should read the case of Nicholas Parsons of Tewksbury.

Finally, today, a Massachusetts District Attorney stood up and took the courageous step that a lot of people watching the cases of Phoebe Price and Carl Joseph Walker Hoover were waiting for: Yesterday, March 29 2010, Northwestern District Attorney Elizabeth D. Scheibel announced that nine separate felony indictments have been issued against nine teenagers attending South Hadley High School, all involved in the brutal bullying campaign waged against Phoebe Prince. The felony indictments range from stalking to statutory rape. The most serious of these charges carry lengthy state prison sentences, though I doubt any of these defendants will serve time in state prison. Even though as a Boston criminal defense lawyer I practice on the other side of the legal aisle than District Attorney Scheibel, I applaud her for this unequivocal action.

Charged in connection with the death of Phoebe Prince are the following South Hadley High School students:

• Football player Sean Mulveyhill, 17, of South Hadley: charged with statutory rape, violation of civil rights with bodily injury, harassment and disturbance of a school assembly.
• Austin Renaud, 18, of Springfield was charged with statutory rape.
• Kayla Narey, 17, of South Hadley was charged with violation of civil rights with bodily injury, criminal harassment, and disturbance of a school assembly.
• Ashley Longe, 16, of South Hadley was charged with violation of civil rights with bodily injury as a youthful offender. (A “Youthful Offender” is a legal term used to describe a criminal defendant who is younger than 17, but older than 14.)
• Flannery Mullins, 16, of South Hadley was charged with violation of civil rights with bodily injury, and stalking as a youthful offender.
• Sharon Chanon Velazquez, 16, of South Hadley was charged with violation of civil rights with bodily injury, and stalking as a youthful offender.
• Additionally, three female juveniles, (aged 14 or younger,) who were not named but are all from South Hadley, are also being charged.

Other teenagers could still also be charged, according to Scheibel.

The “stalking” charges refer to these students following and harassing young Phoebe, throughout the school building as well as off school property. The “Disturbance of a school assembly” charges relate to attacks these students made upon the Prince girl, in public areas of the school such as the library where one attack occurred. The civil rights charges refer to Massachusetts as well as federal civil rights offenses these students committed against Prince. The statutory rape charges refer to allegations that the two male students engaged in sex with Prince, whether with her consent or not.

The evidence that the District Attorney’s office uncovered in this case is truly sickening. These twisted students – particularly (whether certain "feminists" groups like it or not,) the seven female students charged here – acted like a pack of wolves, out to kill their prey. And psychologically, they slowly tore her to shreds. When they weren’t physically threatening her and inflicting assault and battery upon her at and near school, they used social networking sites to take her apart, calling her, among several other lies, and "Irish slut." What did 15 year-old Phoebe Prince do to deserve this brutality? She went on a couple of dates with a senior. These girls, ugly to their core, didn't like that.

On the final day of all this physical and mental torture, after this pack of wild, twisted animals had attacked Phoebe in the school library right in front of a teacher (who did nothing,) in the lunchroom and the hallways, and threw a canned drink at her as she walked home, she reached her limit of endurance. Her sister found her hanging from a stairwell at home, still in her school clothes, at 4:30 p.m. I truly hope these nine twisted kids serve time. I really do. I know that may sound unusual coming from a Norfolk County criminal defense attorney, but I really do hope this results. The reason? Because if these charges are proven to be true - after a fair trial - then those found guilty deserve to be punished –and severely.

There is a gravestone with this girl’s name on it. There is a family, brought to this country by hope and optimism, that is now and will be forever more devastated by this tragedy. Those found guilty should serve time. Because I’m a defense lawyer, doesn’t preclude my desire for justice.

And while the primary actors here were these students, what’s going to happen to all the adults that were part of this tragedy – the school administrators who Phoebe Prince’s mother pleaded with to intervene and protect her daughter; the teachers who knew what was going on, but failed to act aggressively in stopping this carnage? It seems nothing. District Attorney Scheibel’s investigation found this evidence of inaction by school administrators particularly disturbing. Her official statement of yesterday reads as follows: “Contrary to previously published reports, Phoebe’s harassment was common knowledge to most of the South Hadley High School student body. The investigation has revealed that certain faculty, staff and administrators of the high school also were alerted to the harassment of Phoebe Prince before her death. Prior to Phoebe’s death, her mother spoke with at least two school staff members about the harassment Phoebe had reported to her." Yet, despite the District Attorney’s conclusion that South Hadley High School staffers appear to have left 15-year-old Prince to fend for herself in a teenage jungle surrounded by a pack of bloodthirsty predators, it appears they broke no laws. Notwithstanding this legal technicality, the district attorney commented that “The actions or inactions of some adults at the school are troublesome.” She said Prince’s mother spoke to “at least two school staff members” about the bullying and the harassment was “common knowledge” around the school. Yet nothing was done.

So it seems these “adults” who did little to nothing to prevent this brutal bullying will walk away scot-free, and many parents in South Hadley are justifiably disgusted. They ought to be. But perhaps they shouldn’t be surprised: These “teachers” are probably of the same type that produce students unable to spell common, everyday words or do simple math. They have little regard for what goes on in their classrooms, and look the other way when it comes to poor teaching, or just about anything else. You know the type. A lot of responsible, respected journalists in the media are equally disgusted. Margery Eagen of the Boston Herald yesterday summed up: "Now we know: The adults knew, and did nothing."

I hope these “adults” never know another night’s restful sleep. And I hope those charged who are either found guilty after a fair trial, or who plead to guilty through a plea deal, are punished to the full extent of the law (hopefully, with jail time.) That’s what’s called “justice” under the law. Phoebe Prince and her grieving family deserve no less.