August 26, 2015

St. Paul's Prep School Rape Trial: Classic He Said-She Said

I don't usually weigh in on cases outside Massachusetts, but the St. Paul's Prep School rape trial in New Hampshire merits a few observations.

First, in the event that some people might think that, as a Boston Massachusetts sex crimes attorney, I'm going to dismiss all the allegations that have been made in this case, they'd be wrong. (At least one of those charges is likely statutory rape, since the alleged victim was 15 at the time of the alleged sexual encounter, which the defendant claims was consensual.) I think it's fairly clear that, notwithstanding the press statements issued by administrators at this school denying that any kind of culture exists at the school that would promote sexual misconduct bewteen students, such a culture has existed. This culture, part of which appears exemplified by the "senior salute" ritual testified about in this trial, should be investigated by New Hampshire state authorities extensively - with the more important goal being the identification, firing, and prosecution of any and all school administrative personnel - teachers or otherwise - who knew of this culture and allowed it to continue. In my view as a Massachusetts rape defense lawyer, there are obvious parallels to the catholic clergy sex abuse scandals roiling the nation (and first uncovered in Boston.) I find any such professional school staffers, if it can be shown that they knew of this culture and allowed it to continue, to be equal in guilt to the bishops who knew what certain sexually abusive priests were doing, yet turned a blind eye to it.

But let's get to the immediate allegations in this particular trial: The alleged victim, a 15 year-old girl, claims she was raped by then 18 year old Owne Labrie, the defendant. There's several pieces of her story that don't seem to make sense, but one in particular stands out: Under examination by Labrie's attorney, she admitted that - after the encounter, Labrie and she communicated by email and texts, discussing birth control and even exchanging terms of endearment. One of those was a message in French that read, "Tes incroyable Toi", meaning "You're incredible." The victim admitted under testimony that she messaged him back, writing "Et Tu", meaning "You, too."

That doesn't exactly comport with the actions and words of someone who has just been raped. Let's hold off on this for now, to see what the jury says. But regardless, the investigations in this case should not stop with this trial: They should proceed directly to the highest levels of this "elite" (read: "rich, connected, entitled") New England prep school.

August 6, 2015

Massachusetts College Sex Assaults: Keep Them In Courts & Off Campuses – Part Two of Two

In my previous post on this subject, I wrote of how colleges and universities across the United States are rapidly disassembling the way that accusations of college campus rape and college campus sexual assault are handled – and of how, in the process, many accused students’ legal and constitutional rights are being trampled in the process.

While there are many examples of this disturbing trend across the country, making Exhibit “A” is the story of John Doe v. Amherst College: A shocking story of how a male student was railroaded out of one of the country’s most “esteemed” universities, based on the shallowest of claims and weakest of evidence offered.

This suit raises disturbing questions about whether colleges and universities conducting their own internal “investigations,” do so within the rules of law. These questions haven’t come out of nowhere – they’re prompted at least in part by the pressure that federal regulators have exerted upon colleges and universities to use a less stringent standard of evidence to “convict” an accused student, than that which has been used in courts across Massachusetts and the entire country for hundreds of years. As anyone who has ever read a legal thriller or watched the same kind of movie, in order to legally convict an accused of a crime (any crime, never mind one so serious as sexual assault or rape – a jury or judge must find that the accused is guilty to a standard of “Beyond a Reasonable Doubt.”

As a Massachusetts college student defense lawyer, I can assure readers that this standard of evidence is the highest and strictest standard in the law, and it is so for good reason: Fleeing a country where the Crown (King) could convict and imprison anyone it wished to with minimal proof or evidence, the framers of the U.S. Constitution wanted to ensure that our (new) government could not convict someone of a crime unless it had proven its case to a “moral certainty.” That is not some “constitutional or historical “technicality” - it is central to our system of government and way of life. (And if you don’t think so, you might want to re-consider that if you’re ever hauled into court and charged with a criminal offense.)

In sharp and disturbing contrast, the federal government – through one of its biggest agencies, the U.S. Department of Education (DOE) – is pressuring colleges and universities to abandon the historical “Beyond a Reasonable Doubt” evidentiary standard used by all criminal courts, and replace it with a much weaker, lower standard of evidence known legally as a "Preponderance of The Evidence.” As a Boston Massachusetts sexual assault defense attorney, I can assure that this is a disturbing concept; that anyone would even think of advancing this draconian idea is, frankly, frightening. So why, of all organizations, would the federal government pressure colleges and universities to comply with such a disturbing idea?

In short, political correctness, that’s why. In response to the hue and cry from feminist campus “activists”; in response to public relations problems that many of these schools have concerning sexual misconduct. Specifically, to crush under foot any hint of even an idea that they “don’t take campus sexual assault lightly.” And if anyone speaks out against these draconian ideas and policies? They are eviscerated: Branded as misogynists and troglodytes. This is done even to women who might dare to protest these injustices.

Exhibit “B” on that point: Northwestern University professor Laura Kipnis. Professor Kipnis became the target of a complaint under Title IX – which, as explained on my previous post on this subject, covers accusations of sexual misconduct in universities -- because she wrote an essay for the Chronicle of Higher Education. In that essay, she bemoaned widespread "sexual paranoia" at Northwestern, and she had the gall to criticize widely publicized sexual-assault allegations that had been lodged against a male professor at the school. Feminist campus “activists” complained that Kipnis' essay could be ‘interpreted’ as ‘retaliation’ against the professor's female accuser, and thus (sit down) contributed to a “hostile environment” at the school.

Care to know what happened next? Administrative disciplinary proceedings were begun at Northwestern against Kipnis. Despite repeated efforts, she was unable to get any straight answers from university officials about the “charges” against her. She was prohibited from being represented by an attorney, she was prevented from recording ‘interviews’ with university investigators, and she met with nothing but administrative stonewalling and roadblocks. Professor Kipnis has described her ordeal as an "Inquisition.” Other credible critics have termed similar Title IX investigations as “star chambers,” “kangaroo courts,” even "Stalinist persecution."

That’s what happens when you challenge political correctness and pressurized group-think. As a Massachusetts college student defense lawyer, I urge each and every parent of a Massachusetts college or university student (as well as students themselves) to investigate exactly what the policies are concerning Massachusetts college student sexual accusations, at the university their child is attending.

Nothing less than their entire future could be at stake. And all it will take, is one accusation of Massachusetts college campus sexual assault. Parents and students alike need to make sure that the rule of law governs on Massachusetts college campuses – not the rule of the mob.

July 24, 2015

Massachusetts College Sex Assaults Investigations: Keep Them In The Courts & Off Campuses

There’s a growing trend across Massachusetts college campuses, and at universities throughout the United States, and it isn’t pretty: Colleges and universities that conduct their own “investigations” over accusations of sexual assault, and hear “evidence” in their own internal “tribunals,” consisting of anything but trained judges or even attorneys.

What’s going on here, you ask? Why aren’t accusations of campus rape referred to the local police department for investigation, just as they would be normally? Two reasons – neither of which is conducive to producing just outcomes in cases of Massachusetts campus sexual assault accusations: 1) Campus ‘women’s rights’ activists (read: militant feminist extremists who think all men are out to “conquer” them,) have created enormous pressure on college officials to punish – fast and furious – anyone accused of campus sexual assault or rape. Their “rationale” for keeping these investigations internal (on campus)? They claim that police departments and prosecutors’ offices “don’t care” about allegations of rape or sexual assault on college campuses. (Yes, you read that correctly); and 2) The U.S. Department of Education, which doles out hundreds of millions of dollars to colleges and universities every year in the form of federal grants and financial assistance and enforces a federal law called “Title IX,” wants universities to “get tough” on campus sex assaults - and they're using their purse strings to make sure that happens. Seemingly, without regard for minor things called "justice," "due process," and "presumption of innocence."

But, as a Boston Globe editorial by Dante Ramos recently asked, exactly where is the evidence showing that college and university administrators are anywhere near qualified to investigate these kinds of crimes – or any crimes, for that matter? That’s why we have things called Police Departments and courts of law, (which our taxes pay for.) Are we to transform our colleges and universities from places of higher learning and highbrow, idealistic thinking, into kangaroo courts, where justice comes a distant second to the cries of activist mobs and government bureaucrats at the Department of Education in Washington?

As the Boston Globe and other media have reported on, a former student who was expelled from Amherst College after being accused by another student of rape, is now suing the world-acclaimed Ivory Tower for how it ‘handled’ his case. Under the pseudonym of "John Doe" in this civil case, the former student states that he was accused of sexual assault by another Amherst student --- almost two years after an encounter with the accuser/alleged “victim” -- which the accuser herself initiated while the accused student was blacked out after binge drinking. A behind-closed-doors investigation by Amherst College, conducted without providing any clear procedures for obtaining evidence, and without credible due process, left the former student almost “convicted,” before the process even began. He was determined to be guilty, thrown off campus, expelled in shame, and his name blackened forever. Even more shocking? After he was expelled, “John Doe” obtained text messages sent by his accuser hours after the alleged "assault," that clearly contradicted his accuser's account – yet the school refused to reconsider the matter, reverse its decision, or do anything about this travesty, at all.

Why would a highbrow place of learning like Amherst College do this? The answer is a toxic mix of political pressure, federal financial support of colleges, and public relations worries. You see, under Title IX, any college receiving federal funds (and many receive millions of dollars each year) must pretty much adhere to what the U.S. Department of Education (DOE) wants. And if the DOE wants colleges to become very aggressive at “handling” accusations of campus rape and sexual assault, these schools are going to do so – or risk losing tens of millions in federal financial support. The Obama administration and the federal DOE have leaned heavily on college campuses around the country on this issue. Additionally, schools also feel they have to “deal with” the fist-pumping feminist “activist” groups, who protest just about anything every chance they get.

As a Boston, Massachusetts college student defense attorney, I can assure you that what results, are some of the most unjust outcomes imaginable. I’ll detail these injustices, in my next post on this subject in a few days.

July 2, 2015

End Massachusetts Mandatory Minimum Drug Sentencing for Nonviolent Defendants – Part Two of Two

In my previous post on this subject, last week, I discussed how unjust, wasteful and counterproductive Massachusetts mandatory minimum drug sentences are.

In today's post I'll provide some examples: If you bought or sold a little over an ounce of pot from a friend, or anyone, were charged under the relevant Massachusetts statute and found guilty, a judge had no choice but to sentence you to a minimum jail sentence – as though you were the head of a Colombian drug cartel. If you are charged and found guilty of possession of drugs with intent to distribute within 300 feet of a designated school zone, you face a mandatory minimum prison sentence of 2 years – even if the transaction had absolutely nothing to do with kids attending the school. As a Boston and Wrentham, Massachusetts drug charges lawyer, I can assure you that all that mandatory minimum sentences have done is swell our already overcrowded prison system. With nonviolent drug offenders - at a cost to you and me of $50,000 per year. These people are not violent criminals, our streets become no safer a a result of their incarceration, violent crime still rages, and less prison space is available for violent criminals.

Thankfully, the Massachusetts Legislature is now considering mandatory minimum sentencing reform. Legislators are considering a proposal to abolish mandatory minimum sentences for Massachusetts drug offenders — a measure that the Chief Justice of the Massachusetts Supreme Judicial Court, Ralph Gants, supports. In what is both no surprise to me yet no less stunning, all of the state’s district attorneys except one steadfastly oppose this measure – despite the fact that the Chief Justice of the state Supreme Judicial Court supports the measure. Why? Two reasons – one ostensible, one actual: Ostensible Reason #1: Prosecutors argue that mandatory minimums for drug offenses — inflexible prison sentences based on the weight of the substance in question — provide for “clarity and consistency.” (Note: The word “justice” seems to be missing there.) Massachusetts DA’s claim that they were to lose mandatory sentencing, they wouldn’t be able to take the most dangerous defendants off the street. That’s unfounded: Any judge worth his or her salt is going to know when they have a dangerous individual in front of them, and sentence that person to jail accordingly. Actual Reason #2: District Attorneys are elected officials; they’re politicians, and they know that the average voter has no idea how unjust and foolhardy these laws are. But DA's also know something else" "Tough On Crime" talk works at the voting booth: Voters want a “law and order” DA. Logic and common sense be damned.

Without mandatory minimums, sentencing decisions will appropriately rest with the judge, who will consider a variety of factors, including a prior record, a history of drug addiction, and whether the defendant represents a genuine threat to the public. More proof still: Six years ago, the Rhode Island Legislature ended mandatory sentencing for nonviolent drug offenses. Result? Its prison population decreased (by 9.2 percent), and the state saw a decline in violent crime between 2009 and 2011.

Mandatory minimum sentences for nonviolent drug offenses was always a bad idea, and has been just one part of a miserable failure in this country’s laughable and ineffectual “War on Drugs.” It has ruined many nonviolent people’s lives, and should end, now. These laws were sold as being “tough on crime.” They aren’t tough on crime – they’re dumb on crime.

Enough of this foolishness, wastefulness and injustice. I urge all my readers to contact their state legislator now and tell them that you support ending mandatory drug sentencing in Massachusetts. The phone number to the legislature is: (617) 722-2000. Believe me, the injustice you prevent will ensure a smarter, saner, safer criminal justice system.

June 27, 2015

End Massachusetts Mandatory Minimum Drug Sentencing – Part One of Two

Readers of this blog know that I’ve made my opposition to mandatory minimum sentences for drug offenses, well known. It is a foolhardy, unjust, wasteful, and expensive approach to sound legal policy when it comes to Massachusetts drug crimes. As a Massachusetts drug charges attorney, I know this all too well.

In fact, I’ll call this foolish approach to criminal ‘justice’ just what it is: A knee-jerk, reflexive reaction advanced by get-tough-on-crime advocates, who never took the time to actually think about the results these sentencing laws would bring to Massachusetts drug defendants. In case you haven’t read anything on the subject of mandatory minimum sentencing, I’ll once again make it clear: It’s a pair of handcuffs, made just for a judge. You could also think of it as a mouth gag, made just for a judge. That’s because these law take all discretion and decision-making that a judge is supposed to exercise when it comes to sentencing, away from him or her: If a guilty verdict is returned on the charge, the judge has NO CHOICE but to sentence the defendant to the mandatory minimum sentence that the relevant statute calls for. And when it comes to Massachusetts drug offenses, some of these sentences can be shocking.

The reason has to do with largely two reasons: 1) The weight (amount) of the particular drug that the defendant is charged with possessing or distributing, and 2) School zones. In the first example, sentencing penalties for controlled substances in Massachusetts hinge a great deal on how much – i.e., how many grams – of the substance the defendant was charged with possessing. Even a small amount of, say, cocaine, or prescription medication - can result in being sentenced to several years in state prison (that’s not a House of Correction (HOC,) by the way. HOC’s are for sentences of 2 ½ years or less. State prison is much more severe and much harsher.) In the second example, persons can be sentenced to mandatory minimum sentences if they are found guilty of committing a Massachusetts drug offense within 300 feet of a designated school zone. 300 feet – that’s the length of a football field. And if you’re arrested anywhere inside this distance from a designated school zone, and if you’re found guilty of the charge – a judge has no choice but to impose a mandatory minimum sentence. However unfair. However unjust. However unwise. However unfair. However unproductive.

The Massachusetts school zone law is a perfect example of reflexive, unthinking overreaction by the public and the legislature when it comes to criminal justice: Advocates of this law wanted to keep drugs and drug dealers away from schools and kids. But while some kids under 18 do use drugs, very few drug dealers deal to young kids on or near school grounds - they know there are almost always police, or crossing guards, in the area. The dealing usually done in the neighborhoods, away from schools. Care to know just how draconian some of these mandatory drug sentencing laws can be? Before it was amended a few years ago, the original school zone mandatory sentencing law prescribed the distance at 1000 feet of a designated school zone. 1000 feet - that’s 3 and 1/3 football fields, end-to-end! This was such a huge distance that in most Massachusetts cities and towns, it was impossible, standing at any given spot in the city or town, not to be within 1000 feet of a school. Thankfully, the law was also later amended to provide that the school zone law does not apply between the hours of midnight and 5 a.m., (which makes common sense – not that this rare commodity is found frequently on Beacon Hill.)

I'll talk about some of the shocking injustices mandatory minimum drug sentencing laws have had, in my next post on this subject, in a few days.

June 13, 2015

Marty Walsh’s Fixation on Opposing Marijuana Legalization: Wrong-Headed on Every Level - Part Two of Two

In Part One of this post, I discussed Boston Mayor Marty Walsh’s fool-headed decision – both politically and scientifically – to be willing to “lead the charge” against an anticipated 2016 Massachusetts ballot initiative to legalize marijuana possession and use.

As a Wrentham Massachusetts drug charges attorney, I can assure you that alcohol – which is fully legal, regulated, and taxed – is at least ten times more addictive and dangerous than cannabis. Yet alcohol remains legal, while cannabis remains illegal. This insane legal and social policy has persisted for decades, and must end soon. Because cannabis remains illegal (especially on the federal level,) cartels and illegal dealers control its distribution. Legalization it will smash cartel control, will allow for orderly regulation of it. As respected national organizations such as the Marijuana Policy Project have made clear, current sales in the illegal market aren’t taxed or regulated. Black market dealers don’t care who they sell to or how old the buyer is. Legalization and regulation would put gangs and cartels out of business by bringing everything out of the shadows. Importantly, legalization will allow Massachusetts to tax marijuana sales – producing hundreds of millions of dollars in taxes that can be directed to much more socially useful objectives, such as housing the homeless, for one.

Because possession of more than an ounce of pot remains a criminal offense under Massachusetts drug laws, that means that HUNDREDS OF MILLIONS of taxpayer dollars are spent every year arresting and prosecuting completely non-violent citizens who want to do nothing more than relax at home with a relatively harmless substance FAR LESS dangerous than alcohol. Studies have shown that there are at least a half-million regular marijuana users in Massachusetts. These everyday people should be treated a criminals? People who should be arrested and prosecuted by the courts, costing us all hundreds of millions of dollars each year? As a Massachusetts drug arrest attorney, I find this incomprehensible. In the event that anyone might think that pro-legalization people are the “Hey, man” Cheech and Chong types, they’d be wrong: They are more like myself, a respected Massachusetts criminal defense attorney, as well as hundreds of current and former police officers and law enforcement officials. Yes, you read that correctly. Law Enforcement Against Prohibition (LEAP) is a nationwide organization of police and law enforcement professionals that know only too well how insane marijuana prohibition is. Check out their website – and their members – by clicking on that link. Are you listening to this, Beacon Hill?

What stuns me just as much is marijuana opponents’ continued – and entirely unsupportable – use of the term “gateway drug”: The laughable argument that smoking pot will lead to “harder drugs.” This claim really is up there (more accurately, down there) with the now decades-old, riotously laughable 1950’s film, “Reefer Madness.” Truly, the best way to describe this argument is, indeed, laughable. As columnist Yvonne Abraham of The Boston Globe has opined in a June 4 2015 piece, “Here’s the problem with the mayor’s position: The marijuana-as-gateway thing is based on shaky science. There is a correlation between using marijuana and using harder drugs (a person interested in getting high might be more likely to try other mood-altering substances), and that is worth our attention. But that’s not the same as saying marijuana causes somebody to use harder drugs."

“Just because marijuana smokers might be more likely to later use, say, cocaine, does not imply that using marijuana causes one to use cocaine,” says FactCheck.org, which took New Jersey Governor Chris Christie to task for making the gateway argument in April. Some research — inconclusive so far — has found paths whereby marijuana primes the brain for other drug abuse, but similar results were found for tobacco and alcohol. So if marijuana is a gateway drug (which has NEVER been scietifically proven - then it follows necessarily that tobacco and alcohol are, too. It makes absolutely zero sense whatsoever to allow tobacco and alcohol to remain legal, and keep marijuana — less harmful than either cigarettes or alcohol — illegal.

Yet, the “gateway” argument goes on and on. As a Wrentham, Mass., charges lawyer, I have a term for these people: They’re members of the Flat Earth Society: People who just cannot submit to reason, to science, and to logic.

Wake up, Mayor Walsh. The earth isn’t anywhere near flat, and pot isn’t anywhere near as dangerous as alcohol. You're blind to this. Wake up and smell the coffee.

June 7, 2015

Marty Walsh’s Fixation on Opposing Massachusetts Marijuana Legalization: Unsupported by Science or Sound Social Policy

As I write this post, I’m feeling a combination of optimism and disbelief. Optimism that Massachusetts Senate President Stanley Rosenberg has indicated he may support an approach to legalizing marijuana in Massachusetts. On the other hand, stunned disbelief that other Massachusetts political leaders, including Boston Mayor Marty Walsh, refuse to support this sane and balanced measure. Yet while figures such as governor Charlie Baker have indicated they don’t approve of pot legalization, none of them have indicated that they will openly, actively lead the charge against such efforts, either.

Enter Boston mayor Marty Walsh, who this past week said he’d be willing to be an open, public spokesperson against legalization efforts in Massachusetts if asked. Those legalization efforts are anticipated to take the form of a binding ballot question in the November 2016 (presidential) election, which would legalize cannabis in Massachusetts. This follows overwhelming voter ballot approval in 2008 to decriminalize possession of less than an ounce of pot for personal, recreational use, and corresponding overwhelming voter ballot approval of medical marijuana in 2012. Thanks to a first-ever – and thus botched – state attempt to develop a sane and orderly license application process for medical marijuana dispensaries – we still don’t have licensed clinics and dispensaries operating here yet. Hopefully, that process will soon be rectified.

In my view as a Boston Massachusetts drug charges lawyer, I’m stunned that Walsh would take such a scientifically and socially indefensible position. Walsh – to his considerable personal credit – is a recovering alcoholic. No respectable individual, myself included, would take that accomplishment away from him. But he’s allowed his understandable antipathy and anxiety toward alcohol – an extremely dangerous drug, which cannot scientifically be compared on any equal level with marijuana – to blind him to documented medical and social realities here. Walsh’s life – along with hundreds of thousands of others – was almost destroyed by alcohol. That’s because alcohol is extremely, powerfully addictive. It is pernicious, destructive, and if you can find a person who has not seen first-hand proof of this in their friends and/or family, I’d find that very interesting. (And if you can’t find anyone whose life has been destroyed by alcohol, just visit any homeless shelter or AA meeting.)

In extreme contrast, cannabis (pot,) is not ANYWHERE NEAR as dangerous as alcohol, and is NON-ADDICTIVE. I capitalized those words for a reason: Because it’s true:

• Cannabis is non-toxic; people cannot ‘overdose’ on it. Alcohol is toxic - hence the term, “intoxication” to describe being drunk. Overdosing can easily kill, or blind the user. Ever heard of college fraternity deaths due to alcohol overuse? Ever hear the term “blind drunk”? Overdosing on alcohol can kill the optic nerve.

• Cannabis is non-addictive. It’s enjoyable to use, but deriving pleasure or enjoyment from a substance, and being addicted to it – are completely and totally different. Alcohol is extremely addictive. Ever see someone in the throes of alcohol withdrawal (delirium tremens, or “DT’s”?)

• Because possession of more than an ounce of pot remains a criminal offense under Massachusetts drug laws, that means that tens of MILLIONS of taxpayer dollars are spent every year arresting and prosecuting completely non-violent citizens who want to do nothing more than relax at home with a relatively harmless substance FAR LESS dangerous than alcohol.

I’ll discuss why Massachusetts marijuana legalization should pass, and overwhelmingly, in Part Two of this post, in a few days. Look for it; this is an important issue. You may not be hearing a lot about it now, but you will be a year from now.

May 20, 2015

Massachusetts Sex Offenses: Not Limited to Who & What You Might Think Of

I usually write about Massachusetts legal decisions & issues in this blog, but here’s an interesting subject that applies no matter the state:

When people think of the terms “sex offense,” “sex crime,” or “sex offender,” most people think of the classic pervert wearing a raincoat and nothing else, flashing himself (or herself) to unsuspecting victims. Or they think of rapists; or child molesters. And when people think of these types of images, they usually conjure up an image of a sleazy, dirty, street-level, alley-occupying degenerate, hiding behind some bushes waiting to pounce, fangs and all.

While, very unfortunately, some people like these do exist, as a Boston sex charges lawyer, I can assure you, that these stereotypes are not true. I’ve represented many a person charged with a Massachusetts sex crime, who was both not guilty of the crime, AND who was an upstanding member of his/her community, and a very successful person. Sex crime allegations are especially dangerous: The mere accusation can ruin a person’s livelihood and life – even if the person is found not guilty, he or she will always be known as “the one was accused of (rape/indecent assault and battery/prostitution, etc.).”
And even when people do commit a Massachusetts sex offense, they are not at all always the “underbelly of society.” Many are very successful and decent people, who just made a bad decision.

Case in point: The death of a multi-millionaire Google executive Forrest Timothy Hayes, who hired a call girl to come to his 50-foot yacht in Santa Cruz, California. Here was a multi-millionaire, and reportedly a good person, who wanted sex with a prostitute who had a certain “look.” Unfortunately for Mr. Hayes, he was later found dead on his 50-foot yacht, moored in the Santa Cruz, Calif. Harbor. The call girl who showed up, brought drugs with her, and allegedly injected Mr. Hayes with heroin, reportedly causing his death. The prostitute, Alix Tichelman, was arrested pleaded guilty to involuntary manslaughter, administering drugs, drug possession, destroying or concealing evidence, and agreeing to and engaging in prostitution, according to media reports. She had originally pleaded not guilty to the charges in 2014. Mr. Hayes was 51 years-old and the father of five.

Almost any decent, otherwise law-abiding person can become charged with a Massachusetts sex offense. It's always important to remember this, and that before the eyes of the law, a defendant is presumed innocent until proven guilty beyond a reasonable doubt.

We should all remember that.

May 11, 2015

Gloucester Mass. Police Chief Announces Heroin Addicts Will Be Put In A Hospital, Not Jail : A Profile in Sanity

I can’t say how pleased and proud I am that finally, sanity peeks through in the miserable failure that is the “War On Drugs.”: In the face of the current Massachusetts heroin crisis, a local Police Chief declares that opiate addicts walking in to his Police Department will not be arrested, but instead taken to a local hospital for addiction treatment. Why? Because heroin users are MEDICAL ADDICTS, not violent criminals – and they belong in a hospital and a medical environment, not in a court room and a prison environment. As a Massachusetts drug charges attorney, I can guarantee you that.

Imagine that: Medical treatment for heroin addiction, not punishment. Shocking, isn’t it? … And how sad that this idea isn’t universal policy at police departments across Massachusetts.

Gloucester Police Chief Leonard Campanello announced to the media on May 4 that opiate and heroin addicts who come to the Gloucester Police Department will not face Massachusetts drug charges — even if they are in possession of drugs or drug paraphernalia such as syringes at the time they walk into the police station. Instead, they’ll get the help the so desperately need: What Police Chief Campanello suitably describes as an “angel” to walk them down the road toward detox recovery, and help them get the medical and hospital treatment they need. The medical treatment will partially come from Lahey Health Behavioral Services, which was recently awarded a $4.8 million grant to assist repeat patients in Lahey’s hospital emergency departments. Many of these “repeaters” to Massachusetts hospital emergency departments can return to an ED up to a dozen times a year, and present with addiction or mental illness issues. Lahey Health Centers will now provide these patients with the resources they need to get their lives back together, from detox services to food to transportation and housing.

Campanello, previously a narcotics detective who knows what he is talking about, posted the announcement on Facebook, and made his laudable, and entirely logical, reasoning crystal clear: Opiate addicts are little different from everyday people that are addicted to cigarettes and alcohol. “The reasons for the difference in care between a tobacco addict and an opiate addict is stigma and money,” Campanello wrote. “Petty reasons to lose a life.” The Massachusetts heroin epidemic has exploded in the past two years or so, making national headlines in the process. More than 1,000 people died of opiate overdoses in Massachusetts in 2014, higher than ever recorded before. In Gloucester alone, in just the first five months of this year, four people have died from heroin and opioid overdoses. The chief couldn’t correlate how much crime in Gloucester stems from heroin addiction, and he doesn’t need to: Whether it’s small or great, the need for a sane and rationale approach is the same. Quoting Chief Campanello, “It’s big enough for us to change the fundamental way we deal with addicts and recognize it as a disease and not a crime, in and of itself, that deserves punishment. We’re committed to the idea of attacking the demand rather than attacking the supply,” Police Chief Campanello told Boston Fox 25 News.

Essex County District Attorney Jonathan Blodgett’s office, which prosecutes crimes occurring in Gloucester and other Massachusetts North Shore communities, has so far reserved final comment on the Gloucester Police Chief’s plans. The Essex DA’s office already has a diversion program offering non-violent drug addicts treatment in lieu of prosecution, which is admirable. Project COPE in Lynn operates the program. In 2014, 72 people enrolled in the program and more than 50% successfully completed it. Six percent of those who enrolled went on to commit another crime. As a Dedham Massachusetts criminal defense lawyer, I can assure you that’s figure is pretty low. Make no mistake: Drug DEALERS will get no break from this program, which is aimed at addicted users. The Gloucester Police Department plan will utilize seized drug money to pay for supplies of Narcan, the prescription drug used to reverse opiate overdoses. Anyone needing Narcan can get it from the Gloucester Police at almost no cost. Summing up the logic of this approach, Chief Campanello said, “We will save lives with the money from the pockets of those who would take them,” Campanello wrote.

This man deserves a medal – literally – for the courage he has shown to speak sanely and rationally about dealing with the Massachusetts drug policy. And be assured: It takes courage for a Massachusetts police chief to break ranks with the majority of police departments who blindly arrest sick drug addicts for prosecution as Massachusetts drug offenders. While the John F. Kennedy Profiles in Courage Awards usually go to someone on the national or international level, Gloucester Massachusetts Chief Leonard Campanello should be the next recipient of this award. In the meantime, Chief Campanello plans to meet with federal officials, including Chief Campanello is traveling to Washington, D.C. to meet with Massachusetts Senators Elizabeth Warren and Ed Markey as well as Congressman Seth Moulton, to discuss more federal aid and support to combat local efforts combating the Massachusetts heroin epidemic.

April 29, 2015

Massachusetts Breathalyzers Tests: Flaws Require Independent Review

The recent revelation that many of the breathalyzer machines used by many Massachusetts police departments, has resurrected a debate between law enforcement and prosecutors on the one side, and criminal defense attorneys on the other, over whether and how accurate these machines really are.

The controversy began in mid-March, when a fairly high number of breathalyzer results were found to be unreliable due to failures that were not fully explained at that time. The issue reached a fever pitch last week, when District Attorneys in eight Massachusetts counties - Suffolk, Middlesex, Essex, Cape & Islands, Worcester, Norfolk, Plymouth, and Northwestern counties - disclosed that their prosecutors were temporarily suspending the introduction of breathalyzer results into evidence in drunken-driving cases that were pending in their offices. Last week, The Boston Globe ran a lead editorial, calling for the temporary ban to be adopted statewide by all Massachusetts District Attorney’s Offices.

The Globe is wise to make such a call. The premise that breathalyzer machines can detect alcohol in a person’s breath, has never really been disputed. The problem has always been with the accuracy of the machines: If the machines are not regularly serviced, maintained, and calibrated accurately by specially trained police department users, the blood alcohol readings these machines produce can be highly doubtful. As a Dedham, Massachusetts OUI lawyer, I can’t tell you how many Massachusetts OUI charges I've had dismissed due to faulty breathalyzer readings. An example? I ‘ve had more than one OUI client, who was arrested on Massachusetts drunk driving charges, who had ingested nothing more than breath mints or mouthwash – which breathalyzer machines can mistakenly detect as alcohol. More commonly, the machines are not calibrated accurately, and thus the results they produce are flawed.

Yesterday, Massachusetts Public Safety Secretary Daniel Bennett announced that his office’s review of the problem has determined that fewer than 150 OUI/DUI cases were found to be flawed, reportedly due to mistakes police officers made in calibrating the machines, and not because of machine malfunctions. The state Public Safety Department also reported that the widely–used Draeger 9510 breathalyzers were functioning properly. Public Safety Secretary Bennett stated that his office will partner with the affected District Attorney’s offices to locate the 150 defendants whose cases may have been impacted by flawed breathalyzer test results.

However, more than one interested party in this controversy sees that as the fox guarding the chicken coop. To quote the Massachusetts Bar Association, “Some in the [legal]defense community would question the findings of a police department or police agency regarding the very device that they use to prosecute and convict individuals for drunk driving.” Count me as one of those parties. As a Wrentham, Massachusetts OUI/DUI lawyer, I’ve seen too many Massachusetts drunk driving prosecutions that were outright unjustified, given the breathalyzer testing involved. The MBA has called for Massachusetts Attorney General Maura Healey to commence an independent investigation into the device’s reliability, and I think this would be a wise move to assure public concern over this issue.

Everyone – myself included – opposes drunk driving. We need to remain ever vigilant about reducing the number of drunk drivers on the road. But we mustn’t do so at the expense of important legal rights and protections for all of us. If anyone disagrees with that, you might feel otherwise if you’ve ever been arrested for using mouthwash.

April 13, 2015

False UVA Campus Rape Allegations Highlight Need for Caution In Massachusetts Campus Rape Accusations

If you pay attention to the subject of campus rape and college student sexual assaults, you couldn’t have missed the mainstream media’s reporting of Rolling Stone Magazine’s very public retraction of a controversial story it published last November 2014, titled “A Rape on Campus.”

The story described a horrific gang rape of a female student at the University of Virginia identified only as “Jackie”, reportedly by seven different men at a campus fraternity house. The story understandably unleashed a renewed debate about college campus sexual assaults; specifically, about the actual extent of campus sexual assaults in the U.S., and whether colleges and universities are aggressive enough on this issue. It has also been alleged by more than one women’s advocacy group that many colleges and universities intentionally hide or under-report campus sexual assaults. Reading the published story, one is left with the impression that the University of Virginia was a “poster boy,” if you will, for college officials’ indifference to the subject of student rape. The hue and cry that resulted, was predictable: Marches and protests on several college campuses; ‘fist pumping protests’ by female students’ unions; and women’s advocacy groups fanning the flames at each and every step along the way, decrying ‘male-led indifference’ at the top of colleges and universities across the country.

Turns out there was just one minor problem with the story: It was completely false. Worse, neither the Rolling Stone reporter who wrote the story, nor any of her editors at the magazine, caught multiple factual errors and inconsistencies before publishing the story. Gradually after the story’s publication last November, fact-checking exposed several inconsistencies in the alleged victim’s story. The Charlottesville, Virginia Police Department determined it had found no evidence to support the claims of the alleged victim. Eventually, Rolling Stone magazine requested that the Columbia University Graduate School of Journalism conduct an independent, external review of the story. Last week, Columbia University released its conclusions that the manner in which Rolling Stone vetted, reported, edited the story was “a story of journalistic failure that was avoidable. [The failure] encompassed reporting, editing, editorial supervision and fact-checking,” which the venerable journalism school reported on its website. Rolling Stone’s Managing Editor Will Dana issued a formal apology on the magazine’s website, and the female reporter who wrote the story also apologized in a written statement.

Yet, neither the reporter, her editor, nor anyone else at Rolling Stone who was involved with the story, has either been terminated, or even disciplined, in any manner that I am presently aware of. As a Boston campus sex offense lawyer, I find this disturbing. But before I practiced law, I was a Media Relations Spokesperson and editor of two news publications where I held public affairs management positions. So, I know a few things about news reporting, writing, and editing that the average Massachusetts sex crimes attorney doesn’t. And for Rolling Stone to allow its employees involved in this story to essentially receive no consequences whatsoever in this matter, is in my view as a Massachusetts college campus sex offense lawyer, journalistically irresponsible.

Accusing someone of raping another person is an extremely serious accusation. It can and does destroy the accused’s life: Even if the accused is ultimately acquitted, he (or she – yes, that can happen, too) will always be remembered for being “charged with rape.” A Massachusetts rape accusation is in effect, an electronic Scarlet Letter. There are always two sides to every Massachusetts rape allegation – and this needs to be remembered.

Hopefully, this incident with Rolling Stone Magazine will answer the question many people ask me when they learn I’m a Massachusetts sex offense attorney, “How can you defend someone accused of rape?” The answer: “Because the person accused may be innocent.”

March 22, 2015

Massachusetts OUI/DUI Arrests: St. Paddy's Day May Beat New Year's

OK, now that St. Patrick’s Day is over, I’m sure we all know a few people who had a “few too many” celebrating the Irish holiday. As long as those people weren't operating a motor vehicle and could only hurt themselves with a bad hangover, that’s one thing. But to those who imbibed too much and then got behind the wheel, they need to get their sanity back on.

If you took a poll and asked people what day of the year involved the highest number of drunken driving accidents, I’ll bet most people would say New Year’s Eve. Close, but not exactly. It seems that distinction goes to the venerable St. Patrick’s Day, at least according the National Highway Traffic Safety Administration (NHTSA.) According their statistics, St. Paddy’s Day is one of the deadliest highway deaths days of the year, with a reported 276 drunk-driving fatalities occurring March 17 between 2009-2013. NHTSA claims that three-quarters of those deaths involved operators who were driving at or over twice the legal limit (.08, in Massachusetts.) Remember: That fatality figure of 276 represents deaths only, not major injuries such as brain injuries, burn injuries, paralysis and amputations. Ad those facts in, and the picture is pretty gruesome.

St. Patrick’s Day has become so known for drunk driving accidents that car-ride services have stepped in to address the problem: Uber offered $5 for every ride taken between March 17 and March 22 to some chapters of Mothers Against Drunk Driving (MADD,) and the rise service Lyft offered free ride credits to any customer who was riding with a driver named Patrick, Pat, Patty or Patricia on St. Patrick’s Day. A great combination of civic responsibility and smart marketing.

As a Wrentham Massachusetts OUI/DUI lawyer, I’ve seen my share of drunk driving cases. Many times, the defendant was not legally drunk, and should not have been arrested. But other times, the opposite is true. While we fight tooth and nail for all our clients arrested for Massachusetts OU/DUO charges, no matter what the circumstances they were arrested under, we also counsel in private those who need to hear the plain truth: Do NOT drink and drive – ever. The risk of hurting someone else, hurting yourself or a loved one, or being arrested, is simply not worth it.

So matter what day or the year it is, play it smart – don’t drink and drive. Or you may need a saint (a legal one, that is,) faster than you think.