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, www.MarketingAuthor.com

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).

June 7, 2014

DEA Pressuring Massachusetts Doctors to Disown Medical Marijuana Dispensaries: Shameful and Pathetic

I’ve written in this blog repeatedly in the past about how pathetic, foolish, and downright sad the federal government has been in its approach not only to drugs and drug policy in general, but marijuana in particular. Credible study after credible study has demonstrated that marijuana use is not only “not more harmful” than alcohol, these same studies have proven it is even less harmful than alcohol, and not chemically addictive. In contrast, everyone who is either awake or alive knows that alcohol is massively addictive, for many people. If you care to know just how addictive it is, look around you: Chances are, at least 2-3 out of the ten people you know, has some kind of a problem with alcohol. Need further evidence? Try checking out a local meeting of AA. I think you’ll be surprised.

It was more than 60 years ago that the federal government first wasted our tax money, and embarrassed itself enormously, with its financing and production of the long-since parodied film, “Reefer Madness.” For the past seven decades – over 70 years – this wildly laughable film has been the butt of more comedy shows, than most people could count. In the past one decade alone, 22 states and the District of Columbia have passed laws either decriminalizing or outright legalizing recreational use of pot. Has the world ended in those states? Have the streets of those states been filled alternately with doped-out zombies and crime-ravaged “drug lords”? Has civilized society “gone to pot,” filled with stoned losers and Cheech & Chong clones?

Laughably and clearly, the answer is a loud “No.” Yet here in Massachusetts, where voters four years ago decriminalized personal possession of less than an ounce of marijuana, and two years ago overwhelmingly voted to allow a system of legal medical marijuana dispensaries, the federal government is now working to derail the twice-enacted will of the public. How?

The federal Drug Enforcement Administration (DEA) has sent agents to at least seven Massachusetts physicians, who are either on the boards of licensed medical marijuana dispensaries in Massachusetts, or who have advised those firms in some medical capacity, and threatened them with the loss of their DEA licenses to write many prescriptions, unless they resign from or otherwise separate themselves from those marijuana dispensaries. These doctors have been strong-armed and literally blackmailed by the DEA – for doing nothing but what is perfectly legal under Massachusetts law: Associating with and assisting licensed companies who plan to legally dispense medical marijuana to ill patients who have received a legitimate prescription for medical marijuana from a Massachusetts physician. That’s it.

According to separate stories published yesterday and today in The Boston Globe, one doctor who was visited by DEA agents was told, “You either give up your [DEA] license or give up your position on the board (of the medical marijuana dispensary that the doctor serves on) . . . or you challenge it in court.”

And what is the legal rationale for this outrageous action by the DEA? “These doctors are assisting companies to dispense a substance that is illegal under federal law.” That’s a formal statement issued by these idiots at DEA. I choose the word “idiots,” because that’s what it would take to do what they’re doing: Heartless idiocy. So why are they doing it? Well, while DEA will give you "official", answers, the real reason is to justify their government jobs by taking actions that clearly aren’t justified or needed. That, and because they can do it. It’s really that simple. They seek to justify the “need” for their jobs. Because, after all, if they didn’t do this, the world as we know it would end, wouldn’t it? This action is all the more shocking because the U.S. House of Representatives has voted to de-fund drug enforcement agencies from conducting raids on state medical marijuana programs. The Senate is expected to take up the measure soon. Yet that fact – and the fact that Massachusetts voters passed the medical marijuana law and want it, hasn’t stopped the DEA from engaging in this pathetic harassment campaign.

As a Boston drug charges attorney, I’ve seen some needless, wasteful government and police action when it comes to ‘drug enforcement policy’, but this really takes the cake. If these idiots want to do something really constructive with their time, they should visit the website for Law Enforcement Against Prohibition – a respected organization of present and former police and law enforcement professionals who know the real truth about this country’s failed drug policy, and who know that actions like this are a massive waste of time, money and energy.

But these people at DEA would never acknowledge LEAP's sensible arguments. Because to do that would expose the fact that their jobs at agencies like DEA really aren’t needed, and that the taxpayer money we spend to pay their salaries and fund their agency, is a waste of money. My message to these blind and arrogant fools: Find a conscience. Then get a life.

Oh, and by the way – a message to all liberals who voted for your darling of change, Barack Obama: This action by the DEA is taking place under Barack Obama’s knowledge; under Barack Obama’s direction, and under Barack Obama’s presidency.

How’s that for “Change We Can Believe In,” to quote his campaign slogan?

April 18, 2014

Man Wrongfully Charged in Boston Sex Offense: Part Two of Two

In my previous post on this subject, I wrote about how people sometimes ask me how I can defend clients accused of sex offenses, and of how my answer is always the same: Not everyone accused of a Massachusetts sex offense is guilty. A recent example is a young man by the name of Ross Currier, 26 years old, who was recently arrested by Boston Police, jailed, fingerprinted, and arraigned on charges of Assault & Battery and Indecent Assault & Battery on a Person Over age 14. He was brought into court, his name brought before the media, and his reputation ruined in the process. After being released on bail, he was forced to wear a visible GPS device, tracking his movements at all times. There was just one slight thing wrong: Currier was completely innocent; he never committed this crime.

On February 15 2014, a woman reported to Boston Police that she was jumped by a man, from behind, early that morning outside her North End apartment. She reported that the man threw her to the ground, groped her sexually, and took a photo under her skirt with his smartphone. About three weeks later, Boston Police arrested Currier on March 10 after the alleged victim saw him in the North End and told patrol officers that she was “90 to 95 percent positive” that Currier was the man who had attacked her.

Another slight hitch: It seems the alleged victim had previously also misidentified another man in a photo array she had been showed by police, who – unbeknown to her - just so happened to be incarcerated at the time of the alleged assault. Worse, Currier had an alibi, specifically that he was at home with his fiancée at the time of the alleged attack. Notwithstanding, Currier was charged with this extremely serious crime.

On Wednesday, April 9, Suffolk County District Attorney Daniel F. Conley’s office issued a statement asserting that while prosecutors believe the alleged victim was acting in good faith when she picked out Currier in the photo array, Boston detectives later “Developed evidence to suggest (Currier) was not the assailant.” That evidence included investigation of Currier’s alibi, a forensic examination of his smartphone and relevant cell tower location records, as well as closer examination of a Boston sexual assault on March 16 that was very similar to alleged attack on Feb. 15 for which Currier was arrested and charged. The GPS device that Currier had locked on him as a condition of bail proved that he did not commit the March 16 assault. Click here to read a story on this published by The Boston Globe.

I credit the Boston Police Department for good detective work here, and for outing the truth that Currier did not commit this crime. And Suffolk DA Dan Conley, a District Attorney I admire and have written in this blog positively of previously, did drop the charges against Currier. But the Suffolk DA’s office did, through a legal filing known as a "nolle prosequi,” which translated, means that the Commonwealth chose not to prosecute the case. In my professional opinion as a Wrentham, Massachusetts sex offense attorney, that is a very legally ambiguous, and anemic, way to deal with exonerating someone such as young Mr. Currier, whose name and reputation have been forever sullied. A much clearer, much more just and much more adequate manner of dealing with this would have been for the Suffolk DA’s office to file a motion known as a “Motion for Dismissal with Prejudice.” This motion would have made it much clearer, as matter of public record, that the Commonwealth was completely in error in charging Currier with these crimes.

The DA’s office will say this is semantics. Tell that to Ross Currier. But before you do so, Google his name, and see what you find first. Then tell him that the full measure of justice was done here, in “exonerating” him.

Anyone still wondering how I can represent clients accused of Massachusetts sex offenses?

April 13, 2014

Man Wrongfully Charged in Boston Sexual Assault: It Happens More Often Than You Think

I've said something in particular about Massachusetts sexual assault cases on this site many times, but this time I have some more local and recent evidence to make the point again, so here goes:

People will occasionally ask me how I can defend people accused of sexual offenses, such as Massachusetts rape charges or Indecent Assault and Battery charges. My standard answer: "Because the defendant may not be legally guilty of the crime." Let me make clear: Rape and sexual assault of any kind is an abhorrent crime. And for those found guilty after being prosecuted with solid, incontrovertible evidence, they should be punished accordingly to the law – after they have been given a fair and impartial trial, and have received a competent, aggressive legal defense in court.

But let me make something else clear, based on my almost 25 years of experience as a Boston, Massachusetts rape charges lawyer: Just because someone screams “rape,” does not always mean the person charged is guilty of that crime. What circumstances could make that so?

• The accusation could be manufactured by a jilted, jealous or angry lover. This is often the case with younger people, in their teens and twenties; (though more mature adults can stoop to this conduct, also).

• It could be a case of “buyer’s remorse,” where someone ends up sleeping with another person who is for some reason not particularly attractive or is unpopular, and then feels embarrassed in front of their peer group or alienated by friends after 'word gets out' about who slept with whom. To “explain” the encounter, the “victim” concocts a “rape” story, to save face among their friends or peers. Again, this behavior is often seen among college students and younger people – and alcohol or other drugs are almost always involved.

• It could be that the “victim” comes from a very orthodox or religious background, and that an ‘unexplained’ rumor of sex with another person would be cause for family shame or humiliation. To ‘explain’ the fact that the victim has sex with a partner, a “rape” accusation is advanced.

• If a pregnancy occurs as the result of consensual sex, and the woman cannot ‘deal with’ or conceal it by having an abortion due to religious convictions, cultural mores or medical issues, and humiliation would result -- the same “rape” accusation is often advanced.

• It could be that, after drinking or doing drugs, one party openly consents to sex. Later, when the alcohol or drugs have worn off, the “victim” (in the case of a heterosexual couple, almost always a woman,) claims she didn’t consent. However, do not think that rape and sexual assault accusations involve only straight couples" I have seen repeated cases where the parties are gay. The one and only differentiating factor: Possible pregnancies are irrelevant. .... Though, believe it or not, in one very unusual case, a rape charge was brought by one lesbian against another lesbian, and an unwanted pregnancy resulted, when it was alleged that one of the two women attacked the other, and penetrated the victim with a turkey baster containing semen. (Trust me, it's true: You can't make these things up.)

• Or, never forget, it could be simply a case of mistaken identification.

That last item is what occurred in Boston very recently – only the “victim” in this case wasn't the accuser, it was the accused. To see the details, check back in here in a few days to see Part Two of this post. I think you’ll find it quite interesting.

April 4, 2014

DuPont Child Rape Sentence: Judge Was Out of Line

The past day or so, I’ve had several people see me in court and express shock over the discovery of a probation sentence given five years ago, in 2009, to du Pont family heir Robert H. Richards IV, following his agreement at that time to plead guilty to fourth-degree rape of his own daughter. Across the country and the internet, there is outrage that the judge in the case sentenced Richards to probation, without prison time.

Despite the fact that the documents in the case were never sealed, the ruling somehow managed to escape notice until last month (March 2014,) when Richards’ former wife, Tracy Richards, filed a lawsuit in Delaware Superior Court on behalf of their children alleging “personal injuries arising from childhood sexual abuse.” The 11-page suit alleges that not only was their daughter abused, but that Richards sexually abused their son, too. The suit seeks unspecified monetary damages. So, it seems that this news can be filed under “Eventually, the truth wins out.”

On the surface, this sentence, in response to the guilty plea on a charge of rape, seems shocking. But people need to understand the details that drive such a sentencing decision. Understand: I’m not necessarily “excusing” this sentence, I’m just explaining it. As a Boston Massachusetts sex crimes lawyer, I know all too well how complex these cases can become.

First, some realities about sex crimes trials, especially involving children:

• Without physical evidence, a getting a conviction from a jury is often more unlikely that unlikely.
• The only real witness in this case, from what I understand, was the child who was alleged to be the victim. Children make extremely unreliable witnesses. They can’t be coached, they don’t understand complicated issues, and what they say can be entirely unpredictable. Further, their testimony is subject to successful attack on cross-examination, which further victimizes them. To put a young child witness on the stand, is always a losing strategy from the word “Go.” The dynamic pits the word of the child against the word of the defendant – who in this case was her own father. Not a promising testimonial structure, at all.
• For the prosecution to have not offered or considered accepting a plea here, would have been foolish, because I am told that the case was circumstantial and weak.
• Accepting a Guilty plea meant: 1) A felony sex crime conviction for the defendant, 2) A criminal record that Richards would have forever, 3) A requirement that Richards officially register as a sex offender, and 4) A requirement that he receive psychological treatment as a sex offender.

All of the above important prosecution victories would have been lost, if the prosecution refused to consider a plea deal – especially with no forensic evidence, and the only prosecution witness being a child. Who says the prosecution’s case was weak? Delaware Attorney General Beau Biden (Vice President Joe Biden’s son.) Biden said April 3 that the 2009 case against Richards was weak and prosecutors offered an appropriate plea bargain that spared him prison while convicting him of a felony sex crime. "This was not a strong case, and losing at trial was a distinct possibility,'' Biden wrote, citing a lack of physical evidence.

That leaves the judge, and her decision, for analysis. Wilmington, Delaware Superior Court Judge Jan Jurden sentenced Richards to eight years in prison, but suspended the prison time for probation. Additionally, she ordered that Richards get sex offender evaluation and treatment, and not to have contact with children under 16 (the last item being admittedly an essentially impossible order to preemptively enforce, on a practical, real-world basis.) The judge’s sentence has led to threats against her safety and widespread demands for her removal from the bench. Some of the threats are so serious that the state of Delaware has had to provide her with security details. Patricia W. Griffin, Delaware state court administrator, stated that “We are taking the threats seriously, and making sure the judge is secured.”

Most of the public protest and outrage over Jurden's 2009 sentencing of Richards was over her written notes that he would not "fare well'' in prison. In my view as a Wrentham Mass sex charges attorney, making these comments was one foolish move. I think the prosecution was smart to accept the plea deal that it did. It secured a sex offense conviction of Richards, which resulted in him being forced to register as a sex offender, aside from getting treatment.

Jurden’s sentence of eight years in prison was within suggested sentencing guidelines. I don’t find anything inappropriate in this aspect of the case, either. And given the defendant’s willingness to plead guilty, I think that suspension of some of that sentence was appropriate. But the judge was foolish and imprudent in sparing Richards any time jail time whatsoever. How she could not see that the unavoidable impression would result that Richards’ status as an a heir to a multimillion dollar fortune, somehow, someway “bought” his way out of prison time, is incredible to me as a Wrentham Mass. sex offense lawyer. It strikes me as incredibly blind and myopic. Were I the judge, I would have probably sentenced him to at or near the eight years this judge did, and suspended all but two years. Thus, Richards would have served two years behind bars. Public confidence that the criminal justice system is blind to all, regardless of their wealth or status, is critical to the proper administration of justice.

As Massachusetts judges are, judge Jurden was appointed to the bench, in 2001. However, the big difference is that in Massachusetts, judicial appointments are lifetime; in Delaware, they are for a 12-year-term. The judge was reappointed last year by Gov. Jack Markell. She had applied in 2012 to become a Supreme Court justice in Delaware, but was passed over.

If she stays on the bench as a result of this controversy, this judge needs a reality check. Her sentence, while technically within sentencing guidelines, was imprudent and inappropriate relative to a guilty plea to rape - especially rape of a young child. Case closed.

March 22, 2014

Massachusetts Sex Offenders Who Indecently Expose (“Flash”) Can Now Be Held After Prison Sentence Is Completed

For a long time, Massachusetts sex offenses were – very generally speaking – broken down into “contact offenses,” where the defendant made physical contact with the victim, and “noncontact offenses,” where the defendant engaged in acts that are generally known as indecent exposure, or to use the lay term, "flashing." Legally, such noncontact sex offenses constitute what in Massachusetts is called the crime of “Open and Gross Lewdness.” When a defendant has a demonstrated history of repeated sexual assaults against a victim or victims – where physical contact is made with the victim, if found guilty the defendant can not only be incarcerated under a criminal sentence. There’s potentially more to follow.

In fact, after the defendant’s criminal imprisonment is finished, the state can then commence civil commitment proceedings to have the defendant declared what is called a “Sexually Dangerous Person.” If this petition is granted, the effect is enormous, because he or she can then be committed civilly to incarceration at the Bridgewater State Hospital. Again, such a commitment does not constitute a second criminal conviction or a second criminal sentence, but a civil proceeding. This is a powerful, and occasionally necessary tool for authorities, when the behavioral evidence of the defendant’s history indicates that he or she is a serial offender, and highly likely to pose a physical danger to the public when released at the conclusion of a criminal prison sentence.

However, that mechanism for seeking a declaration that someone is a “Sexually Dangerous Person,” and thus keeping him or her incarcerated, has always been applied only to Massachusetts sex offenders who have committed contact sex offenses. These offenses include Massachusetts rape charges, Massachusetts Indecent Assault & Battery on a Person Under Age 14 charges, Massachusetts statutory rape charges, Massachusetts Indecent Assault & Battery on a Person Over Age 14 charges, and Massachusetts Assault with Intent to Commit Rape charges. This is just a partial list of Massachusetts sex crimes that can trigger a Sexually Dangerous Person commitment.

All this changed just yesterday, when the Massachusetts Supreme Judicial Court (SJC) issued a ruling that defendants convicted of noncontact sex offenses can be subject to SDP civil commitment proceedings. This means that repeat offenders who have been convicted of Massachusetts Indecent Exposure charges, or Massachusetts Open and Gross Lewdness charges, can not only be sentence to a criminal prison term, but can also be held behind bars after that prison term is finished. This ruling applies, essentially to serial “flashers,” and people who otherwise expose themselves or masturbate in front of their victims – but never physically threaten them with any form of contact, or "battery.”

As a Wrentham, Massachusetts sex offense attorney, I find this ruling overreaching and legally unjustified. I will grant readily that the Sexually Dangerous Person statute is necessary. As a Massachusetts sex crimes defense lawyer, I have seen more than my share of defendants who I am quite sure would re-offend as soon as their criminal sentence is finished. But that statute should be reserved for truly sexually dangerous people – rapists and sex offenders who physically harm victims. I realize that the victim of a “flasher” or someone who indecently exposes himself, does suffer emotional harm. But I think that the SJC overstepped reasonable legal analysis in creating an entirely new class of defendants that can be held behind razor wire after their criminal sentence is served, because they feel a compulsion to expose themselves.

Let me be clear: This behavior is disordered, perverted, crude, and objectionable. It is not acceptable on any level, and I am not saying it is. But "dangerous”, in the context of physically attacking someone when a defendant’s history clearly demonstrates that he has never done so previously, but is purely a “flasher”? I disagree. Space inside Bridgewater State Hospital should be reserved for persons who are truly dangerous – not just offensive.

March 15, 2014

U.S. Attorney General Backs Drug Sentencing Reform Recommendations: Late, But Not Too Little.

Readers of this blog know my disdain for mandatory sentencing, whether for Massachusetts drug offenses, or a variety of other crimes. I’ve blogged previously about this subject, on more
than one occasion.

Some headway was made on this subject just the other day, when U.S. Attorney General Eric Holder endorsed proposals made by an independent commission, to shorten prison sentences for nonviolent drug offenders, and provide judges with more discretion in sentencing. Holder offered his endorsement in appearing before the U.S. Sentencing Commission, which is an independent agency that sets criminal sentencing policies. If you haven’t read any of my previous posts on mandatory sentencing, these laws handcuff judges after a guilty verdict is returned by a jury: The judge must sentence the defendant to the minimum stated by a statute – regardless of the facts or circumstances surrounding the case. He or she has no choice. The number of injustices this approach has created, are many and troubling. This is true for a variety of drug crimes: Massachusetts drug possession charges, Massachusetts drug trafficking charges, Massachusetts Drug Possession with Intent to Distribute charges, even Massachusetts marijuana charges. (Many Massachusetts residents still don’t know that possession of more than one ounce is still a crime in this state – and the police love to find people with anything over one ounce – even 1.1 ounces.)

Care for just one example, or think this couldn’t happen to someone you know? Exhibit A: Massachusetts school Zone drug offenses. Laws like this provide that if a drug crime occurs within a set number of feet from a “school zone” – which is pretty much ¾ of any average city or town – a convicted defendant must be sentenced to a mandatory minimum sentence. Laws like this were passed to “crack down” on major dealers who sold to our recruited school kids. Sound good in theory, but what outcomes can that produce in practice? Consider the following all-too-real example: Someone sells two ounces of marijuana to a friend, with no intention of “trafficking” or “distributing” on any kind of a “dealer” level. Just one friend selling to another, for purely recreational purposes. But the transaction took place within the boundaries of a school zone: If the defendant were found guilty, bam – the judge has no choice but to sentence that person to a severely long mandatory jail sentence.

How’s that strike you? These types of legal outcomes can and do happen.

So I’m glad to see that some headway is being made to hopefully stop this practice. The war on drugs in this country – whether on the federal or state level – has been a massive, abysmal, embarrassing failure. That is not just my own professional opinion, as a Boston Massachusetts drug crimes lawyer. It’s a fact that has been recognized by expert after expert, commission after commission, even a national group of law police and law enforcement officers who are dedicated to bringing an end to the madness that current criminal drug laws produce - Law Enforcement Against Prohibition, (LEAP.) I hope you recognize the word "Prohibition" in the title of this admirable organization" Criminalizing (as opposed to medically treating) drug use has done NOTHING but produce the same black markets, drug cartels and the crime that alcohol prohibition produced 80+ years ago.

The average person has no idea how much money or taxpayer resources go in to prosecuting and incarcerating drug defendants. It’s stunning and it’s scary. Did you know that over 50% of all federal prisoners are behind bar for drug offenses – almost 8.000 - and worse, that most of them are nonviolent drug offenders? The space in our prisons should be reserved for violent criminals – of whatever kind, not for nonviolent drug offenders.

Holder previously instructed U.S. prosecutors last August to stop charging many nonviolent drug defendants with offenses that can trigger mandatory minimum sentences. All this is good news, but it applies to federal courts only. When is the Massachusetts Legislature and Massachusetts court system going to wake up and literally wise up to making the same changes in this state? It can’t happen fast enough.

March 6, 2014

“Upskirting” Case Dismissal: Change the Law, Don’t Shoot The Messenger

Amazing how a new expression or grammatical term can crop up almost literally overnight, isn’t it? The newest term that seems to be on everyone’s lips today: “Upskirting.” Seemingly a new verb that would have been met with confused looks just yesterday, now seems to be somehow thrown around as if it were “snowboarding” or “backpacking.”

And what gave birth to this newest addition to the public lexicon? An interesting legal case, of course (that’s one of the things that can make the practice of law so fascinating.) Background: It seems that a certain lothario was caught on the MBTA taking cell phone photos of women’s underwear, by angling his camera underneath their skirts as they sat across from him on the MBTA. We call that kind of person a Loser, with a capital “L.” At any rate, he was caught, and prosecuted in the Boston Municipal Court under the state’s criminal voyeurism statute, M.G.L. Ch. 272, Sec. 105, a misdemeanor. In 2012 he filed a motion to dismiss; that motion was rejected, and the SJC heard the case in last year, in 2013.

Under this statute, prosecutors needed to prove (importantly) both: 1) That the victims who had been photographed had a “reasonable expectation of privacy” while on public transportation, and 2) That they were photographed while they were “nude or partially nude.” The language of the statue was written this way because when the law was passed in 2004, it was intended to punish people who had set up hidden cameras in the walls of bathrooms or store dressing rooms, where intended victims would be “nude or partially nude.” In the case that the SJC dismissed here, the alleged victims were neither “nude or partially nude.” Thus, the court correctly found that prosecutors failed to prove the elements of the crime. Period.

Predictably, what followed was a hue and cry that could be heard from the hills of western Massachusetts to Beacon Hill, blasting the court’s decision. Women’s groups, especially, did almost everything but call for the justices on the state’s highest court to be pilloried. The one problem with all of this hue and cry, is that almost none of these people know what they were talking about – they knew only that they didn’t like the decision.

Guess what? The law doesn’t allow courts to twist statutes out of context, to punish conduct that isn’t statutorily prohibited. If that were allowed, you or I could be prosecuted and convicted under all kinds of statutes that don’t prohibit a wide variety of conduct and activity. Take, for example, the 3 year-old law that decriminalizes personal possession of less than one ounce of marijuana. Let’s assumed you were arrested and charged with Massachusetts drug charges of “Possession of Class D with Intent to Distribute” – a felony – even though you didn’t have more than an ounce, and you had no intent to distribute or sell it. Would you think it “acceptable” if a judge said, “What the hell – it’s close enough: Guilty!” What if you were peaceably protesting something in front of the State House or a City Hall - pursuant to your legal right – and yet you were arrested and prosecuted with inciting a riot? Would you think it OK if a court convicted you because the charge was “close enough”?

The answer to the dismissal of this Massachusetts sex offense case, was and is obvious: Change the law. Amend or rewrite the statute to include language criminalizing taking video or photos of someone’s undergarments without their consent. And in fact, as I write this, that’s exactly what has been done by the Massachusetts Legislature – in record time of less than a day. I’m quite sure Gov. Patrick will sign it, appropriately.

In the meantime, I have this closing observation: The histrionic reaction – overreaction – by some organized women’s groups to the SJC’s decision here, was rather pathetic, and a case study in lack of (organizational) self-control. A senior staffer in one such group had this overreaction to offer: “Sexual violence doesn’t have to involve actual touching… and this is a great example.”

To call what this defendant did “sexually violent” is patently ridiculous, and histrionic. Don’t misunderstand me: This conduct is crude; it’s rude; it’s offensive; it’s perverted. And it should be prohibited and punished (whether the victim is a woman or a man, I’ll add.) All that is fairly obvious. But taking a picture is “sexually violent”? As a Boston Massachusetts sex offense lawyer, I’ve seen up-close a million examples of what “sexually violent” is. And this isn’t one of them. By overreacting with this kind of language, women’s activists demean and diminish real victims of sexual violence, of either gender.

February 28, 2014

Massachusetts Drug Charges: You Won’t Escape Them By Swallowing the Evidence.

There’s a lot going on in legal news on this unusually freezing cold, arctic-air-blasted last day of February 2014, but I thought I’d drop a note for those who think they can outwit law enforcement and legal system when it comes to creative ways of hiding or destroying evidence.

Those who know me know that I don’t like scatological or bathroom humor. Try to crack a gross-out, lip-curling kind of bathroom joke with me, and you’ll either get the cold shoulder or a cold stare. But here’s a story that’s no joke: It seems that detectives from the Canton, Massachusetts Police Department, who are just down the road from my town of Westwood, Massachusetts, had an unusual assignment recently when it came down to preserving evidence in the arrest of a Massachusetts drug suspect. Detectives from that Department were on undercover patrol recently, when they moved in to arrest a suspected drug dealer in that town. Just before the cops got to him, they claim the suspect, one Julio Angel Rivera, 45, of Roxbury, began rapidly swallowing small plastic bags of a white substance they believed was cocaine. Seems Mr. Rivera thought he could put all the evidence out of sight, so to speak, thinking that if it were out of sight, there’s no evidence to charge him with any crime.

Except Mr. Rivera didn’t stop to think that what you swallow, doesn’t usually stay out of sight forever. So the suspect, because what he was suspected to have swallowed would be lethal to him, was transported to Norwood Hospital, where he was placed in the Intensive Care Unit, until police recovered the evidence "after its journey through the digestive process." Rivera was reportedly then arraigned bedside in the hospital, on Massachusetts drug charges of with intent to distribute a class B narcotic. If you want to read more about this story, click here to see Fox 25 Boston report.

As a Dedham, Massachusetts drug charges lawyer, I’ve seen my share of creative attempts to hide evidence – and in fact, I’ve seen this "swallow the evidence" tactic on more than one occasion. But swallowing the stuff right in front of police is really the stuff of a “Dumbest Criminals” crime show. …Wait a second: Maybe I’ve stumbled on a good idea for a new career in legal news reporting.

February 19, 2014


Technology – especially internet and smart phone technology – is moving at light speed. The law is trying to catch up to these changes, and a decision yesterday by the Massachusetts Supreme Judicial Court (SJC) made more headway in that race.

The decision, Commonwealth v. Augustine, deals with whether or not police or law enforcement investigators have to first secure a search warrant before they can be given someone’s cell phone records from a wireless carrier. Smart phones are essentially a homing device, due to the fact that the cellular carrier’s network constantly tracks the phone’s location. Almost all smart phones these days - millions of them - contain GPS chips that determine the phone’s location, down to a few feet. Even without a GPS chip, the cellular network can produce information about the phone’s geographic location through cell tower tracking. This type of prosecutorial evidence is increasingly important in a variety of cases, such as Massachusetts rape charges, Massachusetts drug offense charges, Massachusetts assault & battery charges, and Massachusetts larceny and robbery charges.

The SJC’s ruling stems from the 2004 murder of a Malden woman named Julaine Jules. Police suspected her former boyfriend, Shabazz Augustine, and obtained Augustine’s cellphone records from Sprint Nextel Corp., his wireless carrier, to ascertain his whereabouts at the time of the killing. Augustine was arrested in 2011 and charged with Jules’ murder; he is awaiting trial.

Back in 2004, the subject of data privacy was nowhere near as front and center as it is today. In Ms. Jule’s murder investigation, police relied on a 1986 federal law, the Stored Communications Act, that allowed police to obtain phone records without a warrant by persuading a judge that the records may be “relevant” to an ongoing investigation. For several years, this has been a common practice by local, state, and federal law enforcement agencies in their attempts to gain access to cellphone data. How frequent has this practice been? A 2012 congressional report uncovered that the nation’s cell phone carriers gave authorities in excess of 1.3 million cellphone records in just 2011.

The issue at the heart of the Augustine case was whether police should have gone that extra length to get a search warrant. Legally, that’s a more difficult standard for police to meet, because a judge has to be persuaded that the person whose cell phone records are sought, has likely committed a crime (legally speaking, this is called a "probable cause" standard.) Augustine’s lawyers claimed that even if the practice of obtaining records without a warrant was legal under federal law, it violated Article 14 of the Massachusetts Constitution, which bars unreasonable searches and seizures. Prosecutors argued that the records they sought were not Augustine’s, but were instead the property of his cellphone carrier, and that resultantly he could not have any reasonable expectation of privacy over those records. In its ruling yesterday, the SJC produced a clear definition of the privacy of phone records, and providing prosecutors direction in how to use those records in their case against Augustine. In the 5-2 majority opinion, written by Justice Margot Botsford, the court ruled that “Tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy. In holding here that the Commonwealth generally must obtain a warrant before acquiring a person’s historical [cellphone location] records, this opinion clearly announces a new rule.”

The two dissenting justices, Ralph Gants and Robert Cordy, wrote that the SJC has imposed unreasonable restrictions on police investigators. Gants pointed out that police did not use Augustine’s cellphone records to track his ‘every move’ but instead only records that indicated when he made or received calls.

Notwithstanding, the ruling stands, and it scores a victory for digital privacy advocates and the criminal defense bar. As a Boston, Massachusetts criminal defense attorney, I feel that whether or not it is the “right” or wisest, ruling, time will have to tell.

January 30, 2014

Massachusetts College Sex Crimes Accusations: Gender Bias is Frequent

When people ask me how I can defend people accused of sex crimes, there’s often a look of disbelief on their faces. They’re conjuring images of a rape victim being dragged into an alley or car, to be later violently beaten and raped. That’s a horrible image, so I understand why some people can have a hard time understanding why criminal defense lawyers defend people accused of sex crimes.

What they don’t understand, is that in a significant number of cases where rape or some other Massachusetts sex offense is alleged, the “facts” are often anything but clear. As a Dedham, Massachusetts sex offense lawyer, most of the defendants I represent are anything but sex offenders: A great many of them are college students, who were on a date, in a relationship, or were involved in a consensual “one-night stand,” when the other person involved, screamed rape. When that happens, the accuser is almost always a woman; the accused almost always a man.

And when that happens, as a Massachusetts college sex crimes attorney, I can assure you that the next thing to show up on the scene is an invisible, yet very palpable presence: Gender bias. In too many cases that I have seen, there is an immediate presumption that the male defendant is guilty of the crime alleged. The rationale for this un-acknowledged bias, is the idea that most men are much, much physically stronger than women; that the average woman is a weak, frail being unable to defend herself against a brute man. (By the way: Don’t doubt that, as with all kinds of prejudice, the worst kind of bias is the kind that is unacknowledged.) The idea that women are unable to physically resist an attack is, of course, unfounded – and the lie to this has been demonstrated by the fact that women now serve on police departments, and in fighting, battlefield positions in the military.

Yet this bias persists. Care to know what really happens in a great deal of these cases? Some kind of a “dating,” intimate, or familiar relationship existed between accuser and accused. The “victim” became offended by something her partner did or didn’t do, and sought out retaliation, by accusing her partner of a sex offense. Perhaps the accused said or did something emotionally hurtful to them; maybe cheating was involved. Perhaps a girlfriend or date became jealous of another woman her boyfriend or date was eyeing. Perhaps harsh and hurtful words were exchanged. Perhaps the two engaged in consensual sex after a party or after a lot of alcohol was consumed, and later, the woman feels embarrassed, so she makes up a lie to “cover” herself.

Or perhaps the female college student is from an especially religious family or background, where pre-marital sex is prohibited or shamed. Or perhaps there are mental health issues on the part of the accuser. Or, in more cases than many people might imagine, maybe it’s just a case of “buyer’s remorse,” – the morning after embarrassment that results when the alcohol or drugs wear off, and you realize you’ve slept with someone that is universally derided or laughed at across campus. College students are extremely acceptance-needy and rejection-sensitive. A sense that the ‘wrong move’ with a sexual partner that might invite peer rejection, ridicule or embarrassment, can produce shockingly unjust accusations of “rape.”

Regardless, the point is the same: Due to unacknowledged gender bias on the part of many college campus officials, it’s often very easy for a woman to accuse a man of rape or a variety of sex crimes. Think this is not so? Then please click here to read a very revealing article that Cathy Young, a former Editor of Reason Magazine, and current columnist at Newsday and RealClearpolitics.com, has written.

As important as it is to understand what I am saying, it is equally or more important to understand what I am NOT saying: I am not saying that anyone – man or woman – has the right to take sexual advantage of another. Ever. And I am NOT saying that all women’s allegations of sexual misconduct – college age or older – are to be viewed suspiciously. I am only saying that, like it or not, there is a strong undercurrent of unacknowledged gender bias against young male college students, and for a truly blind justice system, that bias must end.

Otherwise, our criminal justice system, becomes anything but “just.”