Boston Criminal Attorney Blog

Recently, attorney David W. White Jr., President of the Massachusetts Bar Association, published a piece in The Boston Globe, "Fixing Our Criminal Sentencing System", on the subject of mandatory criminal sentencing.

For those of you who may not know, “mandatory minimum sentencing” laws are the Massachusetts state legislature’s (and many other state legislatures’) answer to the public’s increasing intolerance and fear about certain types of crimes, mostly drug-related, as well as their frustration over what they perceive as “soft on crime” judges. Hence, the legislature stepped up to enact “mandatory minimum sentencing” for defendants who are found guilty of certain types of crimes. As said, most of these crimes are drug-related. Most all crimes carry sentencing penalties that range from minimum to the maximum allowed under law, and upon a finding of guilt, a judge normally has the discretion to impose any sentence within that range. Mandatory minimum sentencing takes that discretion out of a judge’s hands: Upon a finding of guilt for certain types of crimes, the judge is forced to impose a strict, mandatory jail sentence No consideration of extenuating circumstances, no consideration of mitigating factors, no consideration of character witnesses, no consideration of leniency. End of story.

“Lock ‘em up and throw away the key.” Sound like a good ending? You should think twice before thinking that this is either a good idea, or that it will reduce certain types of crime. The truth it, it does neither. What it does mostly, is fill up our state prisons to the bursting point, often with defendants that don’t pose a great threat to the general public – and that cost the taxpayers an enormous sum of money to process, house and feed.

I’ll address why this type of criminal sentencing can be a bad idea, in my next entry.

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In my last entry, I spoke about how the evidence in the 1996 John Salvi murder case was overflowing with expert testimony that Salvi was insane at the time of the abortion clinic murders that he committed. Despite this, many observers wished there existed a death penalty in Massachusetts. To those who said this, (including non-attorney friends of mine) I argued that it was patently clear from both expert and non-expert testimony in that trial, that John Salvi was mentally ill, and hence that he should not be found "Guilty," but instead "Not Guilty By Reason Of Insanity." Yet, when people hear those first two words in an emotionally charged case such as the Salvi case, and now in the Odgren case, too many just can't seem to handle it. Some just 'blow up.' The truth is, they can't grasp this verdict. They don't understand it. They think it means the defendant is freed from his handcuffs, to walk out of the courthouse. While the truth is far from this, at least the average person wasn't instructed on this fact, as was the John Salvi jury. They knew the difference, which is:

A verdict of "Not Guilty By Reason Of Insanity" doesn't mean the defendant didn't commit the act. It doesn't mean that he or she won't be incarcerated for either a very, very long time or possibly life. The truth: The defendant will be locked away in a state correctional facility - it will just have a different sign on the front of it: A state hospital for the criminally insane. All this verdict means is that - legally - the defendant cannot be held to the same standard of judgment that a sane person would be held to (say, a gang member or mobster who killed for money).

But if anyone needs an example of just how resistant people are to the first two words in a verdict of "Not Guilty By Reason Of Insanity", consider this: The jury in the John Salvi case knew the difference between this verdict, and a straight "Guilty" verdict. The knew the consequences of both. They knew that Salvi would not be released if they returned a verdict of Not Guilty By Reason Of Insanity - they knew he would be locked away. And yet they still judged this man as though he were entirely sane. Verdict: Guilty. Result: Life in prison in Cedar Junction state prison (formerly, and still, called "Walpole State Prison") --housing the most violent, sadistic criminals the state has ever seen.

A few months later, after being thrown into this general prison population of the most violent thugs in the state, John Salvi hung himself in his prison cell.

A terrible loss? I'm not saying that. Neither am I trying to create a kind of post-mortem sympathy for John Salvi (though his life was pitiable). But I am saying his conviction on this charge was a terrible tragedy. And this tragedy - compounded by the deaths of two innocent people - is that a clearly insane man, obviously incapable of conforming his actions to the law as you and I can - was judged to be perfectly sane, and given a sentence that any sane, hired gun would get: Life in Walpole State Prison.

The Salvi jury didn't deliver justice. It delivered vengeance. And that is anything but what should have happened.

Have we learned anything since then?

I hope we have, because another trial is about to take place in Massachusetts, equally horrific, equally tragic and equally baffling. No one yet knows for certain what the evidence will reveal in this case. It could be that young Odgren does not in any way suffer from a defect in reasoning that his lawyer will almost surely claim. It could be he was perfectly aware of what he was doing when he killed his young classmate. If that is the case, then let the verdict, and the punishment, fit the crime.

But if the medical evidence in this case speaks to the conclusion that this boy was mentally incapable of understanding what he did, then I for one hope this jury will listen, unlike the jury in the Salvi case.

I asked previously: Will the jury in this case ignore the medical evidence as the jury did in the 1996 John Salvi murder trial in Norfolk County, Massachusetts and act out of emotion and vengeance? We will compound this tragedy even further, and throw this 17-year-old into Walpole State Prison, if the truth is he belongs locked in a psychiatric facility?

Let us wait for the evidence, and hope that, this time, true justice is done.

A later blog will follow on a possible solution to these types of emotionally charged cases: The "Professional Jury."

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In my previous entry on this case, I made the point that when a jury returns a verdict that a defendant is found to be "Not Guilty By Reason Of Insanity", that defendant is not released to the public, but is incarcerated in a state correctional facility for the criminally insane. When trying a case like this, the end purpose of justice should not be revenge. It should be two-fold: 1) Protecting the public from such a dangerous person, and 2) Treating that person. When sane defendants kill, and they are not legally determined to be "mentally ill," they should be punished. That means locked up, and the rest of us made safe from them. Aside from "punishment", many would say that is "vengeance.". I think that is true.

But if this young boy in fact was prevented from controlling his thoughts or actions due to a medical condition, then justice is not served through vengeance. It would not be served by throwing him into the general population of a state prison - a hell few who have not seen such can understand.

I made this argument to friends of mine in the John Salvi case here in Massachusetts,12 years ago. (That case involved a man who went on a shooting spree at two abortion clinics in the Boston area, killing two women, while claiming that "Saint Paul and other saints" told him to "punish the wicked"). Prosecutors charged Salvi with First Degree Murder. Evidence in the case made clear that Salvi had suffered from schizophrenia since he was approximately 17 (he was in his mid-20's at the time of the crime). He lived secluded alone in a trash-strewn, filth-ridden apartment - the equivalent of a garbage dump - the walls filled with his own written rantings on religion, and quotes from scripture about "sinners." Witness after witness in his trial testified on the stand to observing years of his mental instability, his deranged behavior, and his non-sensical religious rantings. These witness included parishioners at a church who, recently before these murders, witnessed Salvi charge the altar, take over the lectern from a priest giving a sermon, and rant non-sensically about abortion and "sinners." At that incident, Salvi was carried out of the church forcibly, legs and hands flailing. At his murder trial for the abortion killings, his defense lawyer produced expert psychiatrists in the field of schizophrenia, who testified unequivocally that Salvi was mentally ill, and that he lacked the necessary mental capacity to understand the criminal nature of his acts, and that he lacked the mental capacity to conform his actions to the rule of law.

By contrast, the prosecution produced just one "expert" witness - shockingly, not even a psychiatrist, but a PhD in Education, who disputed the assertion that Salvi was mentally ill.

Legally, this was about as easy a call as a jury could get on the evidence. Notwithstanding, you'd be surprised at the number of people who argued "He should hang from the rafters."

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But faced with a crime this incomprehensible, all of us - singularly the jury selected for this case - must ask: What makes people act this way? What could drive a 17-year old boy to murder another student, in cold blood, - and this is the key - for no apparent reason whatsoever? There seem to be very few answers, but, legally, one must be chosen.

Among them:

1) Odgren is (ongoingly) mentally ill. This is as opposed to the claim that didn't understand the nature of his act, at the moment he committed it.

2) He is not mentally ill, but instead suffers from a condition that impaired his ability at the time he committed the crime, to understand that what he was doing was wrong and a criminal act. (The apparently planned defense of Asperger's Syndrome).

3) He is neither of the above. He is fully competent now, and was so at the time of the crime. He is simply evil.

For every person who feels that this boy deserves no defense, or should not be allowed to raise this particular defense, they should consider what they would want if he were their son. What if he truly does suffer from some defect that prevented him from either controlling his actions, or understanding the horrid nature of those actions? If true, what if that defense were prohibited, and he were convicted as a "normal," sane person, and thrown in prison with the worst of hardened criminals, who are otherwise sane and responsible for their crimes? Most people could surmise what would happen to a 17-year-old boy who is thrown into the General Population of a state prison filled with the worst and most violent criminals imaginable.

Would that serve justice? Most honest people would say "no." These are not the questions of a defense attorney seeking to play a legal trick. Nor are they the 'soft on crime' position of a liberal (I am a registered, and dedicated, Independent). Instead, they are questions that are required by our criminal justice system. They lay at the core of our system of justice.

If it were true that this boy did suffer from some kind of mental defect that prevented him from either controlling his actions or understanding their criminality, then the defense that his attorney reportedly plans (based on Asperger's Syndrome) is appropriate, and it should be raised. However, so too should the sentence be appropriate. If this defendant were found "Not Guilty" by reason of mental defect such as allegedly caused by Asperger's Syndrome, he should not -- and the public needs to understand that he would not - be freed to walk the streets again. He would be -- and should be -- committed to and incarcerated in a state hospital for the mentally ill, safely away from the rest of us. And that is where he would be held, until such time - if any - as psychiatrists determined that he is no longer a threat to society.

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In my last entry that discussed the Lincoln, Massachusetts high school student accused of First Degree Murder in the killing of another student at Lincoln-Sudbury High School, I discussed John Odgren's attorney's reported plans to raise a defense of "Diminished Mental Capacity". However, that's a pretty general defense, and if it is ever going to succeed in any kind of trial like this one, the particulars of how and why the defendant could not understand that his acts were criminal, all have to be produced. If a defense attorney wants to win, he or she can't just 'claim' a general defense like this. The specifics have to be 'filled in.' Odgren's defense attorney reportedly plans to accomplish that here, by specifically claiming that his client suffers from "Asperger's Syndrome" - a mild form of autism that some observers in the medical community assert is associated with thoughts of weapons and violence. Odgren's defense intends to show that because he suffers from this disorder, he lacked the necessary mental capacity to premeditate the act or understand the criminality of his act - and hence, he cannot be guilty of the crime for which he is formally charged, Murder in the First Degree.

"What's the big deal?" some might say. If the jury doesn't find him guilty of First Degree Murder, they can find him guilty of Second Degree, or perhaps Third Degree Murder. Possibly, but the problem is, young John Odgren hasn't been charged with those crimes - he's only been indicted (so far) for First Degree Murder. His lawyer is trying to get that indictment thrown out, but so far, it hasn't been. Were Odgren to remain indicted and charged only for First Degree Murder, and if his attorney could, through this defense theory, establish reasonable doubt in the minds of sufficient jurors that Odgren lacked the necessary ability to understand the criminality of his act, then he might be acquitted of the charge of Murder in the First Degree.

That seems to enrage a lot of people. Frankly, many people are tired of seeing high-profile defendants accused of horrific crimes, acquitted on the basis of "theoretical" or specious defenses. I understand how such people might feel. Their attitude: "Lock 'em up, and throw away the key."

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Welcome to my first blog post on this site. It's my hope that readers will find my thoughts, opinions, musings and postings to be educational, informative, and, sometimes hopefully, provocative toward a better criminal justice system in Massachusetts, and in other states.

For this first entry, I'd like to comment about a case soon to be tried in Cambridge, Middlesex County, involving charges of First Degree Murder against John Odgren, a 17-year-old boy at Lincoln-Sudbury Regional High School here in Massachusetts. My first blog on this case will discuss what his anticipated defense is, and why he is entitled to it. A second blog, later, will discuss arguments, pro and con, for what are called "Professional Juries."

Unlike many cases involving violent crimes in high schools, the high school in this case is nothing like so many of the underfunded, crowded, urban high schools in cities across the United States, where violence is sadly no stranger. It's a highly-rated public high school, in an upscale town, surrounded by well-to-do, wealthy communities. And unlike many such youthful defendants accused of violent crime in schools, this defendant is anything but a gang member or local 'tough'. He is a bespeckled, slight, and dimunitive student: To look at him, he resembles either Harry Potter or the proverbial "98-Pound Weakling."

Except this '98-Pound Weakling' lured a fellow student into a boys bathroom in the high school - a student he didn't even know and had apparently no history with at all - and plunged a carving knife into his heart five times, killing him on the spot. When he was done, Odgren openly admitted to bystanders that he killed the boy. He reportedly even helped to try and stop the bleeding in his victim's wounds. No one - neither his attorney nor his family - disputes that he committed this murder. His attorney has indicated that his legal defense - obvious to all attorneys watching - will be based on a legal principle known as "Lack of Criminal Responsibility." This defense essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. This defense doesn't claim "insanity" - permanent or temporary. Rather, it advances the argument that an impediment in the defendant's mental state at the time of the crime, prevented him from either forming the necessary intent, or from understanding or appreciating the criminal nature of his act.

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Posted In: Murder

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