November 1, 2014

Massachusetts Haunted Houses: You Should Be Spooked

Thinking about Halloween this past weekend, brought me back to when I was a kid growing up in Brookline, Mass. People decorated their homes with pretty standard Halloween stuff: Gravestones that say “RIP,” ghosts hanging from trees, spider webs, and pumpkins. For all of my life, these are the kinds of things that signified Halloween. Scary? Hardly. But these things have always been associated with Halloween, and they always did the trick. Little more was needed.

That’s why, as a Boston, Massachusetts criminal defense lawyer, I’m appalled – and disgusted to be more exact – at how the commercial Halloween haunted house business has grown to a billion-dollar a year business, and how it goes to extremes to attract customers.

Live-actor displays involving:

* Sadism.

* Serial killers.

* Bondage and gagging.

* Scenes depicting torture.

I’m horrified all right, because the orange-and-black envelope has been pushed so far that nothing seems macabre enough. At these haunted houses, grisly crimes of abuse and torture– which are far too commonplace in our society – are being marketed as Halloween "entertainment." Here’s some examples of what I’m talking about:

Last year at a haunted-house attraction in New Hampshire, the company staged the grisly discovery of fake human remains in woods. They even paid local police in the area to “play along,” to make it all seem real. (I’m purposely not giving the name of the attraction, as I don’t want to publicize this business.) It’s not real enough that actual remains of people who have in fact been tortured, raped, and abused, have been found in the woods? To the shock and horror of their families? Those families have been scarred for life with this kind of violence. How crass to market their agony as "fun."

One of the more shocking of these “attractions” was in N.H. A family-friendly resort was turned into a – get ready for this – torture chamber. Visitors would pay good money to be handcuffed to a bed while cockroaches – yes, live cockroaches – crawled on their bodies. Am I wrong when I say this is mental illness? What kind of person in their right mind pays to have this kind of crass experience?

At a haunted house in New York City – whose name I refuse to reveal -- people engage in staged abductions, waterboarding and forced stripping. And they sometimes pay as much as $135 for it.

At a haunted house in San Diego, run by a couple in their backyard, the fun includes being stuffed in a coffin, or being force fed. The kicker? They have a waiting list of more than 17,000 people, as they only allow in two people per night.

I’m outraged – and you should be too. Why? Because it makes you less safe in this country; In fact, it makes you statistically more likely to be the victim of violent (very violent) crime or murder. Our society is far too desensitized to violence, and hard-core haunted-house experiences simply desensitize everyone all the more. And in some cases, this horrific "entertainment" is offered year-round! This isn't "entertainment" - it's mental illness, writ large. As a Boston assault attorney who sees violent crimes in the court every day, I can assure you that the net effect of violent "entertainment" like that offered by Halloween theme parks, is to desensitize the public: Exposure to this type of violence and sadism numbs people to the worst violence imaginable - and leaves us all the lesser -- and less safe - because of it.

You've heard of the "Dumbing-Down" of America? I call this type of activity the "Numbing-Down" of America: Our culture has become so desensitized that not even the most disturbing, mentally ill torture scenes revile us anymore. A little scare is one thing - but these commercial businesses and their displays cross the line into psychological pathology. Credit the media - both news and entertainment - for desensitizing us all. Proof? A student last shot up a Washington state school, killing one and wounding 4 others. In most major city daily newspapers, it didn’t even make page one.

Parents, do your children and yourselves a favor: Don't patronize these businesses - no matter how small or large. Our culture is exposed to enough real sadism and barbarity - from terrorist groups like ISIS and here at home as well. Don't desensitize yourselves, your children and your family even more.

October 3, 2014

Massachusetts Stalking Is Not Sexy. It’s A Crime.

File this under “Now I've really seen it all,” and “This world is spiraling down faster than a toilet flush."

I am -- what are the words here? – disgusted, mortified, shocked and appalled at the new “Animals” music video that was released this week by one Adam Levine, the American 'singer' who heads the group Maroon 5. In this disgusting display of blood-lust, violence, and criminal intent, Levine plays a butcher who stalks a woman (played by his real-life wife, who must be just as twisted as he), secretly takes pictures of her, and then ultimately sexually assaults her while blood rains down on both of them. Oh yes, and he apparently cuddles with slabs of bloody meat. I saw just seconds of the video, and I wouldn't waste another nano-second. Part of me wants to speak out against this maggot, as a Boston criminal defense lawyer who sees far too much violence in the media; part of me hesitates even saying a word here because I know that it will only further publicize this twisted moron's video. I'll err on the side of speaking out against this perversity, which is one step away from a 'snuff film.' (If you don't know what that is, Google it -- be warned, even the definition is not for the sensitive.)

Gratefully, I have seen that many people are outraged at this porno performance, and I’m glad. The Rape, Abuse & Incest National Network RAINN, has spoken against this new video, calling it “dangerous” and a “stalker's fantasy.” Katherine Hull Fliflet, the vice president of RAINN said in a statement, “[This video] is a dangerous depiction of a stalker's fantasy — and no one should ever confuse the criminal act of stalking with romance. The trivialization of these serious crimes, like stalking, should have no place in the entertainment industry.” RAINN operates the National Sexual Assault Hotline and features programs to prevent sexual assault, help victims, and ensure that rapists are brought to justice.

What is this world coming to? As a Dedham Massachusetts sex offense attorney, I defend people when the facts indicate solid reasons to believe the defendant may be innocent of the crime for which he/she is charged. I do not condone or sanction any kind of sexual violence, of any kind. Neither do the laws in Massachusetts - there are tough laws here against stalking and sexual assault. District Attorneys’ offices across Massachusetts prosecute these cases aggressively. What do I mean by that? It means that if you are charged with a Massachusetts sex offense, and require a Massachusetts sex crimes attorney, you are at great risk of having your life totally ruined if your arrest results in a conviction. The punishments for Massachusetts sex crimes are harsh: Convictions can carry up to 20 years to life in state prison, along with lengthy probation, and court-ordered GPS monitoring in which an electronic device is placed on your wrist or ankle. It gets worse: The punishment can also mandate that you register as a sex offender with the Massachusetts Sex Offender Registry Board (SORB.)

The bottom line? No one should ever stalk and sexually assault another person. And no one should ever equate stalking with love. Making this video even more shocking is the fact that this Levine moron is also a judge on the hit TV show The Voice. In my opinion as a Massachusetts rape lawyer, he should be kicked off the show for this - immediately.

Please - if you care anything about preventing sexual violence - against women, men, children or anyone - do NOT You Tube or watch this video. Each additional internet hit puts more money on these people's pockets, and further desensitizes an already desensitized public. Is there anything that shocks peoples conscience anymore? Speak out against sexual violence -- don't fuel it and numb yourself even more by viewing this kind of garbage.

October 2, 2014

Should Massachusetts College Have Reported Alleged Rapes?

According to press reports including The Enterprise of Brockton, Bridgewater State University police campus recently received allegations of two rapes on campus. University officials didn’t make the reports public and inform students. Sound like a foolish, ridiculous decision, no? Before the usual names in the feminist community start screaming how callous this is, and how it’s evidence of misogyny, let’s take a more careful look.

The reason the information wasn’t made public on campus and off? The suspects involved were quickly caught and there was no continuing danger, according to university officials. According to an Associated Press report, the alleged assaults were reported separately on Sept. 3 and Sept. 20. One allegedly occurred in a gym, the other in a dormitory. The university’s decision was explained by Fred Clark, executive vice president and vice president of external affairs, who told The Brockton Enterprise if there’s no perceived ‘‘continuing threat, we don’t send out a notice if a crime occurred.’’

Was this the right decision? As a Norfolk County sex offense attorney, I think so. My feeling hinges no only on the presumption of innocence afforded the defendants, but the lack of a continuing threat. I think that the University should have doubled-up the campus police presence and offered increased student awareness training. But to report a continuing threat where the alleged threat has by all appearances been removed, I’m not sure these circumstances justify panicking some students. And let’s not place last on the list: The reports involve allegations. No one yet knows what really happened in these incidents. Boyfriend-girlfriend fights are not all uncommon in these campus situations. Trust me; I’ve defended many a Massachusetts sexual assault charge, where the accusations were completely false. That goes for straight and gay couples, both.

September 13, 2014


In my previous post on this subject, I wrote of how, recently, my wife and I, as well as several other people, were exposed (pardon the pun) to a man on Cape Cod who was wearing a "swim suit" that was, in the expressed opinion of several observers, extremely offensive and obscene. I mentioned how odd the timing of this incident was, because the Massachusetts Appeals Court had delivered a ruling earlier that very week, on the subject of what is and isn't legal, when it comes to very revealing clothing.

The defendant in that case, Commonwealth vs. Coppinger, was charged with the Massachusetts sex offense of Open and Gross Lewdness. He was tried before a jury, and was found guilty of that charge. He appealed his conviction, his lawyer arguing that the judge who presided at his earlier trial erred in denying the defendant’s Motion to Dismiss. That Motion had claimed that the statute prohibiting open and gross lewdness is “unconstitutionally vague,” and thus unenforceable. In addition, the defendant also argued on appeal that the trial judge erred again when instructing the jury on an accepted definition of the word "exposure" – because he claimed he was not “exposing” himself. Why? Here’s where things get interesting: Because, the defendant claimed, the translucent (see-through) “compression shorts” he was wearing, constituted “clothing,” and thus he could not have been legally “exposing” himself.

Interesting argument, but the Appeals Court denied both claims. First, on the issue of whether the statute was vague, the court outlined what elements of this Massachusetts sex offense the Commonwealth must prove beyond a reasonable doubt, which are: (1) That the defendant “exposed his or her . . . genitals, buttocks, or female breasts to one or more persons”; (2) That the defendant did so “intentionally”; (3) That the defendant did so “openly,” that is, he or she intended public exposure, or recklessly disregarded a substantial risk of public exposure, to individuals who might be offended by such conduct; (4) That the defendant's act was committed in such a manner as to produce alarm or shock in anyone witnessing it; and (5) That one or more persons were in fact alarmed or shocked by the defendant's act of exposing himself or herself."

The court found nothing “vague” about the statute’s prohibited activities. More interestingly, the court next turned to the defendant’s claim that, in wearing translucent “compression shorts,” he was not “exposing” himself. The focus of that specific question was whether the prohibited “exposure” requires a display of unclothed, naked skin, or whether it is possible to expose a body part through a some type of transparent clothing or covering. Analyzing, the court considered the hypothetical scenario of a person wearing shorts made from cellophane instead of the material that the defendant was wearing at the time of his arrest. The court concluded that such conduct would unquestionably fall within the common understanding of “exposure,” as the person's genitals and buttocks would be completely visible, regardless of the covering. The court saw no meaningful difference between wearing cellophane shorts and the defendant's translucent shorts that were revealing enough that at least one witness could see the "flesh color of his skin," his buttocks, and his genitals.

So, could the man that I my wife and other individuals saw (described at the top of Part One of this post,) have been arrested for appearing in the manner he did? As a Dedham, Massachusetts sex offense lawyer, I can assure you the answer is: Absolutely yes. Would he be convicted if he were tried on the charge of Massachusetts Open & Gross Conduct/Lewd and Lascivious conduct? Almost certainly, as his buttocks were exposed to view.

In closing, a word to the wise: If you like to display your private parts, do it in front of mirror, not in front of the public.

September 6, 2014

The Massachusetts Sex Offense of Open & Gross Conduct/Lewd & Lascivious Behavior: Exactly What Is This? – Part One of Two

The other day, my wife and I were on Cape Cod. Suddenly, she directed my attention away from the water I was gazing at. “Look over there – Can you believe that?” she asked, incredulously. What I saw was a man, who appeared to be in his mid-to-late 50’s or perhaps early 60’s, “wearing” - and I use that term loosely – what I am sure he would have claimed was a “bathing suit.” What it actually consisted of, was two cords around either hip, leading to a small swatch of cloth that acted as a pouch, or pocket, for the man’s genitals.

To give you an idea of how much material this “pocket” consisted of, think of this comparison: If you made a fist, the material this man was wearing would not be enough to cover the top of an average person’s fist. In the rear (pardon the pun) there was no material whatsoever; his buttocks were completely exposed. I myself was quite offended (and I'm no prude.) Not just ‘somewhat’ offended, but very much. Other people in the area that we observed displaying uncomfortable facial expressions were also offended, and I know this for a fact because I quietly asked them if they were. Even children and teenagers were staring in stunned amazement. The man was not oblivious to the resulting attention, and he seemed to enjoy it, at one point even getting off his lounger to engaging in “stretching.”

OK, quick: Was this man’s appearance a crime in Massachusetts? Or just extremely poor taste? As a Boston sex offense lawyer, I can tell you that I‘ve seen many of these types of cases. But first, exactly what Massachusetts sex crime could a person such as the above man, be charged with? The appropriate criminal charge for someone appearing in a state of ‘dress’ that violates state law is called “Open and Gross Lewdness,” which is a violation of M. G. L. c. 272, § 16. That statute makes it a crime to “intentional(ly) expose .. genitalia, buttocks, or female breasts to one or more persons.” This charge is also known as “Lewd and Lascivious Conduct.” Exposing one’s genitals, buttocks or breasts is not the only way that a person could be charged with this crime; it is just one. Public urination – sadly common at public gatherings such as sporting events - also triggers this crime.

Often, sex crimes like this can become very grey, as the person charged with the crime usually claims in his or her defense that they were “wearing a garment that did not expose the genitals, breasts or buttocks,” or if they were urinating in public, they did not “expose” the prohibited body areas. These cases are also often defended legally on the basis that the relevant statute is overly vague, and thus, legally speaking, is “void for vagueness.” This phrase refers to the constitutional requirement that any statute that criminalizes certain conduct, must do so with sufficient specificity and clarity that a person of reasonable intelligence could understand exactly what specific conduct is illegal.

Talk about odd timing that this incident should have occurred a few days ago: Just earlier that week, the Massachusetts Appeals Court issued a ruling on the very questions raised above. The case, Commonwealth vs. Coppinger, dealt with the arrest and conviction of a man who walked into a Target store wearing translucent (basically see-through) shorts. A number of customers and employees took notice and offense. At least one witness noted that she could see the "flesh color of his skin," his buttocks, and his genitals. The local police were called, and the man was arrested and charged, among another crime, with “Open and Gross Lewdness and Lascivious Behavior,” violating M. G. L. c. 272, § 16.

In Part Two of this post, I’ll explain how the court ruled with this case, and what the ruling means for people like the individual that my wife and I witnessed a few days ago.

September 2, 2014

Massachusetts Gun Laws Now Tougher

I get an increasing number of calls and emails from people who either want to secure a gun license for the first time (“License To Carry”, or “LTC” in abbreviated legal terms,) or they have been denied a license application by a local police chief, and wish to appeal. Most people think that just hunters and people in dangerous lines of work (such as transporting large amounts of cash to and from a business,) are interested in carrying handguns.

Not so. As a Boston gun license attorney, I can assure readers of this blog that a rapidly growing number of “everyday” citizens either want, or feel the need to carry a gun. It’s not hard to understand: The amount of violence in our society is frightening. Gangs roam the streets not just in urban jungles known for crime, but in the “quiet” suburbs, also. Everyday people fear they could become victims of a Massachusetts robbery crime, or a Massachusetts sex assault. Other people fear the increasing militarization of local police departments, and see in this the makings of government one day threatening the liberty of citizens, if a catastrophic economic crisis ever occurred. Is this an outgrowth of the Tea Party? Conspiratorial thinking? Are these people reactionary extremists? It’s hard to say, but far more people than many would suspect, either carry guns or wish to.

Against this demand, is handgun violence that has reached all-time highs, and vocal calls for increased handgun regulation. How to balance the two competing demands? The Massachusetts Legislature recently considered various proposals on this subject, which I’ve blogged about recently. Just a couple of weeks ago, both branches of state legislature passed and sent to Governor Deval Patrick a “compromise bill – which the governor signed into law. That law provides for the following:

►Massachusetts will become part of a national database to conduct criminal and mental health background checks for gun license applicants. Previously, police departments here were limited in researching criminal and mental health background checks.

►Massachusetts schools will be required to develop approaches to address students’ mental health needs, in the hope of avoiding another Columbine-like disaster.

►Police chiefs will have the ability to go to court to keep rifles and shotguns out of the hands of people they deem dangerous.

These new provisions will be added to already tough gun laws in Massachusetts, which include:
►A complete ban on semiautomatic assault weapons.

►Stringent gun licensing requirements

►Prohibitions against anyone previously convicted of a violent crime or am drug trafficking offense from either owning or carrying a gun.

As I've said previously in this blog on this subject, as a Dedham Massachusetts gun licensing lawyer, I think these measure are balanced and in the public interest.

August 27, 2014

In A Massachusetts Prison? Your Kids Probably Suffer More Than You.

If you’re charged with a crime in Massachusetts, and have children, you should think about how that process affects more than just yourself. Many people in this state wind up needing a Boston Massachusetts criminal defense lawyer, for a wide variety of criminal charges. They may need a Dedham sex crimes attorney; or a Wrentham assault & battery lawyer, or an Attleboro drug offense attorney. As awful as winding up in jail or prison is for defendants themselves, a new study says that it’s even worse for the children of convicted defendants. No surprise there. But does that fact serve as a deterrent to a lot of would-be criminal defendants? To people who are otherwise law-abiding citizens? Yes. But not to the hard-core ones (gang members, etc.)

A recent study by the University of California-Irvine has found that prison is extremely bad for children whose parents are incarcerated, as it (quite obviously) affects their emotional development and physical health as they grow up. The study is to be published in September 2014 issue of the Journal of Health and Social Behavior. In fact, the study points out that having a parent in prison may be even more harmful to children than having their parents get a divorce or die.

In addition, the study compared children who have an incarcerated parent to other children with similar socioeconomic characteristics and demographics. It found that children who had a parent in prison were associated with having behavioral problems such learning disabilities, attention deficit disorder, and even speech and language problems. The obvious culprits? Mental and economic stress.

As a Boston criminal defense attorney, I can attest that the facts outlined in this study are all too true. Children who have incarcerated parents suffer enormously, and have emotional problems that can range from fear of abandonment to scarcity mentalities, to fear of unpredictability. I think it's also true that the children of repeat offenders who get arrested over and over again, but don't wind up in prison, also experience excessive trauma.

If you have children, think twice before committing a Massachusetts criminal offense – for the sake of your kids.

August 8, 2014

Massachusetts Domestic Violence Reform Bill: Not Perfect, But Wise

The subject of Massachusetts domestic violence charges has been elevated to a fever pitch over the last few months. This has been fueled by the case of Jared Remy, who was sentenced in June to life in prison without the possibility of parole for murdering his girlfriend, Jennifer Martel.

The reason why this case has fueled debate over reforming Massachusetts domestic violence laws, is that Remy was a multiple offender with a long history of abusing Ms. Martel and previous girlfriends, and the court system never reined him in. It was claimed that Ms. Martel did not report previous instances of abuse, because she did not want her name to be made public in local police logs, which news reporters regularly plumb for publication. Currently, when a call is made to local police for any reason, the name and address of that caller and any parties involved in the call become public information in the city or town’s police logs. In domestic violence calls, the name of both the victim and the alleged abuser are entered into the police log. Advocates for the abused, including Jane Doe, Inc., a statewide organization that advocates for domestic abuse and rape victims, say that this fact discourages potential victims from calling the police. They say that if a domestic violence victim knew that her (or his) name would not be made public in the police log, they would be “more likely” to summon help.

That claim is somewhat anecdotal, but perhaps that’s true. It’s difficult to know precisely. To deal with this issue, the legislature has passed, and now sent to Governor Deval Patrick’s desk, a domestic violence reform bill that would shield the names of both the alleged victims of Massachusetts domestic violence, as well as the names of alleged abusers. The relevant names will not appear in police department logs – unless and until the case is prosecuted in court. At that point – once an accused person is arraigned - the names of both the alleged victim and alleged abuser, would become public information (as is the procedure currently.) Supporters of the bill say the confidentiality provisions will encourage more reporting of domestic violence. Weston Police Chief Steven Shaw, supporting the bill, has commented that “My concern is that the way it is now … people that are being abused .. can end up in the paper. People are worried about their image.”

Opponents, including the editorial board of The Boston Globe, as well as the Massachusetts Newspaper Publishers Association, publicly oppose the measure on public information grounds as decreasing the transparency needed in these cases. Free speech advocates argue that the bill will shield abusers, as well as the police departments responding to a domestic violence call, from public scrutiny. They argue that greater attention to Jared Remy’s history of assaults, which was available in the public record, might have allowed for an intervention before he killed Martel.

There’s one obvious and major flaw in that reasoning, however: It didn’t. Jared Remy’s history of assaults was fully public, and yet this public information did nothing to rein him in. As a Boston Massachusetts domestic violence lawyer, I feel that on balance, Governor Patrick should sign the bill, with its current confidentiality provisions. Aside from perhaps encouraging more victims to call police if threatened, there is another important reason that I feel the bill should be signed as is: Until an accused abuser is arraigned in court, it is my professional opinion that, on balance, his or her name should not be made public.

As a Massachusetts domestic violence defense attorney, I cannot tell you how many times an otherwise law-abiding, non-dangerous person has been arrested in a domestic violence call. In fact, as I say on the Domestic Violence Law Practice Page of my website, among almost all Massachusetts Police Departments, it is standard operating procedure for patrol officers to arrest and charge at least one party to a domestic violence dispute with assault & battery, no matter how minor the incident. The “assault & battery” is often nothing more than a slight touching, by an otherwise non-violent person, who very often has no prior criminal record of any kind. The next thing he or she knows, they are arrested – and their name and address appears in the police log published in the local paper - because perhaps their spouse or partner accuses them of “shoving” them. That is entirely unjust. I don’t object to a defendant’s name becoming public once a case is arraigned in court, but I’ve seen enormous damage done to the names and reputations of perfectly ‘normal’ and non-violent everyday people, simply because an argument got out of hand and the police were called.

On balance, Governor Patrick should sign the bill as is.

The bill also includes separate provisions toughening penalties for repeat domestic violence offenders, creates new punishments for strangulation and suffocation, and allows victims to take 15 days off from work to recover from the incident, or to obtain medical attention and/or mental health counseling. I certainly don’t object to these provisions, either.

Post Script - Aug. 12 2014: Governor Deval Patrick signed this bill into law on Friday, August 8 2014.

August 1, 2014

Boston U.S. Attorney’s Comments on Massachusetts House Speaker Robert DeLeo: Unjust and Unwarranted

Now that the jury in the Massachusetts Probation Department corruption trial has returned its verdict, some comment is needed concerning Massachusetts House Speaker Robert DeLeo.

Beforehand, some brief background on this case: The Boston U.S. Attorney’s Office brought this case alleging that John O’Brien, former Massachusetts Probation Commissioner, constructed a scheme with legislators - though not one legislator out of 200 was ever charged – whereby in exchange for hiring legislators’ friends, the Legislature would increase state funding and management powers to O’Brien. As said, no individual legislators were ever formally charged, but the federal prosecutors went out of their way to leak to the media that on the Legislature’s end, House Speaker Robert DeLeo was complicit in the alleged operation.

The Boston U.S. Attorney’s Office should be ashamed of the manner in which they have sullied the name of Robert DeLeo. Without ever charging him, prosecutors hoped to – and sadly have probably succeeded in - attaching DeLeo’s name to these convictions forever. Many in the media were only too willing to bite on this hook baited by the U.S. Attorney – shamefully so. I also noted too few letters to the editor supporting him, whether in The Boston Globe or The Boston Herald. How unfortunate.

This post speaks to a very different type of legislative leader I came to experience recently, than the one that the Massachusetts U.S. Attorney’s so irresponsibly portrays. This past year, I represented, pro bono, a hard-working nurse who was effectively robbed of more than $10,000 after providing years of in-home care for a profoundly brain-damaged boy. She was facing foreclosure due to these funds having been unjustly taken from her, and state agencies that were involved, refused to budge an inch, forcing litigation that may have taken years to resolve. That is, until Speaker Robert DeLeo got involved, with whom I and WBZ-AM Radio’s “Nightside” host Dan Rea worked closely with. Mr. DeLeo, juggling long days and a very demanding public policy agenda, helped me to right this wrong. I observed a dedicated, caring, responsive and effective political leader – reflecting nothing of the pejoratives attached to his name in this case because of the U.S. Attorney’s actions in this matter.

This development is not only unfortunate, it’s sad. Sad because tarring the name and reputation of an honorable legislative leader like Bob DeLeo will only discourage future such leaders from entering public life. I don’t know whether, or of whom Speaker DeLeo might have spoken positively of in the context of someone’s job application to the Probation Department. But I will say this: If he had, where is the harm? And far more importantly, where is the crime? The practice of elected politicians recommending constituents for government jobs, is no different than you or I recommending a qualified person for a job. There is nothing “wrong” in it, and as long as the applicant is qualified, there is nothing unethical about it, either.

The U.S. Attorney’s Office in Boston, in their zeal to root out what they interpret to be public “corruption,” has in effect criminalized conduct that just a few years ago wouldn’t have been given a second thought. That is over-reaching, over-zealous, and unjust. If you might have difficulty connecting the danger of prosecutors literally criminalizing conduct that was never before considered criminal, try to imagine this: You’re at your workplace one day, when agents from the FBI and the U.S. Attorney’s Office come in and raid it. They seize files, records, computers, notes. That raid is reported in the media, along with your name. Shortly after, federal prosecutors charge you with “corporate corruption,” pursuant to some recent statute that was passed to crackdown on inappropriate corporate business practices. Why? Because you recommended someone you know for a job in the company. Your name, as well as your picture, is printed in the newspapers, and broadcast on TV and radio news.

That hypothetical scenario could become a reality, easier than some people think. Everyone wants honest government, at both the state and federal level. Such is laudable. But to pass well-intended but vaguely-worded anti-corruption statutes that criminalize conduct that few reasonable people would consider anywhere near “criminal,” is dangerous and unwise. As a Boston criminal defense attorney, I can assure readers that such actions expose us all to one day being pilloried by public prosecutors, for doing something that for decades has been perfectly legal. Perhaps one day in the near future we’ll see a law criminalizing public school students giving their teacher an apple. The possible offenses? “Improper gifts to a public employee,” “bribery” and “influence peddling.”

And, oh – on the subject of using influence to get government jobs, and making hiring recommendations that might be connected with prior political favors – U.S. Attorney Carmen Ortiz might want to remember this: The person who appointed her to her own job? His name is Barack Obama. A prominent Democrat, she supported him for in his election campaigns.

I’m proud to know Speaker Bob DeLeo. His name will endure this episode, as well it should.

July 26, 2014

Massachusetts Gun Reform Bill: Expand Police Chiefs' Powers or Not?

A lot of back-and-forth has been going on up on Beacon Hill lately over gun reform legislation here in Massachusetts. As usual, the warring parties are gun owners and the gun lobby, vs. gun control advocates. Generally speaking, those two camps are represented by the Massachusetts Chiefs of Police Association, favoring stiffer gun control laws, and opposing them the Gun Owners Action League (GOAL), likely assisted by the National Rifle Association (NRA.)

A key point of contention has been whether local police chiefs should have the power to deny an applicant a license for a rifle or shotgun (as opposed to a handgun.) Under existing law, police chiefs are required to give people who pass a standard background check, and satisfy other basic information, what is called a “Firearms Identification Card,” which allows the applicant to then buy shotguns and rifles. However, the procedure for handgun applications is different. For handguns, police chiefs can exercise their own discretion on whether to issue a License to Carry.” A police chief has the unilateral authority to deny an applicant a License To Carry if the chief determines the applicant to be unsuitable, in his or her unilateral discretion. An aggrieved applicant can petition a local District Court judge for a hearing on the license application denial, but not many decisions are reversed.

Currently, the two branches of the legislature are split on whether police chiefs should be given the same discretion to deny firearms licenses to rifle and shotgun owners, as they now have over applications for handgun licenses. The House favors broadening these powers to police chiefs; the Senate version keeps the current scheme, limiting police chiefs’ unilateral powers to solely handgun applications, not to long barrel weapons such as rifles and shotguns. This past week, Governor Deval Patrick weighed in on favoring the House version of the bill, giving chiefs the same discretion on rifle and shotguns licenses that they currently have on handgun license applications.

As a Boston Massachusetts gun crimes lawyer, I favor a vigorous application process for someone to be issued a license to carry either a handgun or a long barrel weapon. I think those reviews are needed in the name of public safety, especially in this day and age of mass shootings. But what I don’t favor, is putting the power to approve or deny a License To Carry, in the hands of one solitary person (a local police chief.) Ideally, I’d like to see a 3-person panel review these applications: A police chief, a psychologist, and a lawyer -- all mandated, as a prerequisite, to sign on each application decision, that they were neutral in their reviews. Either a 3-0 vote or a 2-1 vote would approve or deny a given application. I believe this would allow three key specialists (especially a psychologist) the opportunity to carefully interview and assess each applicant, consider the application in its entirety, and allow a majority vote to approve or deny.

The problem with this approach, of course, is cost: While the police chief is a salaried employee of the city or town involved, who under this approach would pay for the psychologist and lawyer? Clearly, those two professionals would not need to be full-time employees; they would only meet perhaps once or twice a month, depending on the volume of applications, for perhaps a few hours each time. Still, the fees for those two professionals could be considerable. If the fees were charged to the gun applicant, they could be sufficiently high that some applicants could not afford the fees, effectively precluding them from even being considered for the chance to exercise their constitutional right to bear arms.

So, given the competing state Senate and House versions now before the Legislature, which do I as a Dedham Gun violations attorney, prefer? I’d have to say the Senate version that Gov. Patrick sides with. Given the increasing amount of mass shootings involving rifles and long-barrel weapons such as shotguns, the Senate version is the better route. It's not perfect, but it's better.

July 12, 2014

The Smell of Marijuana: Sorry, Massachusetts Police: No Ground For Search

I don’t know how many times that I’ve blogged about the complete waste of time that police resources and taxpayer money are involved in, when police officers harass people because of marijuana. As a Boston, Massachusetts drug offense attorney, it’s more pathetic than I can describe. Here we are, plagued by increasingly violent crime of all kinds, and what do so many police departments and officers spend their time on? Pot. An essentially harmless herb. Something that’s widely accepted by numerous medical authorities as non-addictive, and far, far less harmful than thoroughly legal alcohol. Not only do medical authorities say this, but so do numerous present and former police and law enforcement officials. Anyone who doubts that, can see it by visiting Law Enforcement Against Prohibition (LEAP.)

Six years ago, in 2008, Massachusetts voters made is crystal clear how they felt about personal marijuana possession, by voting overwhelmingly to decriminalize possession of less than an ounce of pot. The new law, passed by citizen petition on a ballot question, limited the penalty of personal possession of one ounce or less of marijuana to a maximum fine of $100 – a civil offense only, akin to a parking violation. The message was loud and clear how voters felt. What was the response of most Massachusetts police departments? Issue troubling predictions of Armageddon, and streets filled with stoners. Oh, yes: And start writing tickets.

Three years ago, in 2011, the Massachusetts Supreme Judicial Court (SJC,) handed down a decision about unlawful police searches – and marijuana was the key issue. You see, in that case, police had stopped the driver of a motor vehicle. Because they detected the odor of burnt (smoked) marijuana, they concluded that a “crime” had been committed, and proceeded to search the vehicle without a warrant. The case was appealed, and the SJC ruled that given the fact that the 2008 citizen initiative petition decriminalized possession of one ounce or less of marijuana, the mere smell of burnt marijuana – standing alone - did not establish probable cause to conduct a warrantless search.

Did that strong legal message cause police to get the hint and back off when it comes to harassing people about marijuana? No, they kept at it. Before I get to the most recent chapter of this story, think about that fact for a minute: In 2008, voters decriminalized possession of an ounce or less of pot. The vote was overwhelming; it wasn’t even close. In 2011, the state’s highest court told law enforcement that the smell of smoked pot (alone) doesn’t give police the right to warrantless searches. Yet, police STILL keep at it: Harassing people – and violating their legal rights - if they think they may have pot on them.

Now, just a couple of days ago, the SJC handed down yet another decision to law enforcement on the subject of pot – this time, louder still: “Back off.” Why the need for this decision? Well, deaf to both the voters’ will in 2008 and to the SJC’s 2011 ruling on pot and warrantless searches, another police department pushed the envelope on this issue, and was soundly rejected: In Commonwealth v. Matthew Overmyer, the Pittsfield Police Department responded to a motor vehicle accident, and the officer(s) detected the smell of unburnt (unsmoked) marijuana. Based on this, police searched the car and the contents of the car, finding one bag of pot in the glove box of the car, and a larger amount in a backpack inside the car. Based on this discovery, police charged the driver with Possession of Marijuana with Intent to Distribute. Once more, the SJC ruled that police could not – based on the smell of unburnt marijuana alone – search the car without a warrant. The court cited both the 2008 ballot initiative and their 2011 decision in this most recent decision. However, the court remanded the case back down to the District Court that it came from, because other evidence involved in the case indicated that the police may have a separate, legally permissible basis for conducting the search that they did. Notwithstanding the remand back to the District Court, the court’s ruling on pot was clear: The mere smell of marijuana – whether burnt or unburnt – standing alone, does NOT allow policers to conduct searches without a warrant.

News flash to police departments across Massachusetts: Spend your valuable time, and our valuable tax money, on pursuing real crime – not people engaging in what has been repeatedly ruled is non-criminal conduct.

July 6, 2014

Massachusetts Criminals: Try The Groundhog Meatloaf - Here's Why Prison Is Horrible

Humorous Guest Post by Debbi K. Kickham,

I often tease my husband, Boston criminal defense attorney William D. Kickham, about how too many convicts have it "too good" in jail and prison. Ask me my opinion, and I'll tell you that some criminals really live the life. To hear me tell the story of prison life, here’s how it works: You commit a crime, if you get the wrong lawyer (which you never would with my husband Bill) you wind up in prison, and the next thing you know you’re getting free room and board plus three square meals a day. Along with medical and dental. A gym where you can stay in shape. Use of computers and a library, where every day, you can entertain yourself. At the federal prison camp in Montgomery, Ala., there is even a music room, pool tables, and a craft room. There’s also a Federal Prison Guidebook written by a lawyer named Alan Ellis, which outlines all of the posh perks you’ll find. At the federal prison in Sheridan, Oregon, you can even learn a trade such as construction, or learn how to become a personal fitness trainer. Click to read the article about it on CNBC.

What a life! You'll save so much on room and board, food, and insurance, that you will have a king's ransom waiting for you in the bank when you get out of prison - many times with a new career. (Hey, how many times has this happened to celebrities?)

I’ve always said that, as a freelance writer, it would probably serve me well to go to prison. I could spend all my days writing and pitching stories to magazine editors, without having to worry about money for room and board. Think of the dough I could save. Think of the stress I would obviate, as I furthered my professional writing career thanks to Uncle Sam. I would simply enlist my husband, Massachusetts criminal defense attorney William D. Kickham, who is a Boston sex crimes lawyer and a Wrentham shoplifting attorney -- whose criminal law blog you are reading right now -- and tell him to -- of all things -- LOSE the Commonwealth's case against me! Note: Losing, for anyone who knows him, is something Bill is totally unfamiliar with, so that ploy wouldn't work. He pretty much wins every case for every person he defends.

But on second thought, to be realistic, there are actually some unusual disincentives to going to prison. And they are probably things you've never ever thought of.

Actually, do you know what is one of the worst things about going to jail or prison? It’s this: You’ll never get a good night’s sleep. Ever. Again. And that’s a L-O-N-G time. This, in fact, is exactly what Dr. Jack Kevorkian said when he got out of prison – that the snoring by the other inmates was awful. If I were a criminal in prison, I KNOW that the snoring alone would be an intolerable fate. The death penalty? That’s nothing compared to the fact that I’d never get a good night’s sleep: That I would never wake up on any morning feeling good and well-rested. That I would forever walk around cranky, in dire need of a nap. I'd think about that the next time I was inclined to commit a crime and might need a West Roxbury drug crimes lawyer.

I’m also a Boston marketing professional, and I strongly believe that law enforcement should make these facts WIDELY KNOWN. Let’s face it – sleep deprivation is a form of torture. Loud snoring by scores of inmates around you should definitely be used as a disincentive for committing a crime. This is a fact that the Massachusetts Department of Corrections should pounce on -- like white on rice -- to use in their anti-crime education efforts.

Another point: I don’t know about you, but if someone told me that I in prison I would never eat a good meal ever again, I would climb the walls. I’d weep uncontrollably. I wouldn’t be able to bear such a loss. No yummy ice cream. No delicious Nutella crepes. No pizza. No fresh scallops with a baked potato and Caesar salad. No nothing. Why isn’t law enforcement advertising this horrid prison reality?

A recent article on this very subject in Thrillist shows actual food items that prisoners have to eat every day. It is disgust-o-rama. Bologna sandwiches. Beans and franks – and you could only imagine what that tastes like. Meatloaf with brown gravy. And – the kicker – meatballs that one inmate said tasted like "fresh groundhog put through the wood chipper." The food is so God-awful dreadful, I'd become emaciated.

Even Paris Hilton commented, after she was incarcerated, that her meals consisted of “mystery meat.” No thank you. I’ll obey the law. And keep it low-cal, while I'm at it.

Hope you've liked this tongue-in-cheek humor. It took me a while to convince Bill to post it. Believe it or not, he's got a great sense of humor (you should see his Kramer impression).