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

MASSACHUSETTS CELL PHONE RECORDS & POLICE INVESTIGATIONS: SJC TELLS POLICE: GET A SEARCH WARRANT FIRST

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.”

January 18, 2014

Federal Appeals Court Upholds Sex Change Order for Convicted Murderer Kosilek: Judges Gone Wild

It is with considerable disappointment, disbelief and even anger that I write of what I will here today.

23 years ago, a piece of human filth by the name of Robert Kosilek murdered his wife, Cheryl, in act of savage brutality. When he was done slashing her to death, he dumped her body in a trash bin. Kosilek was convicted, and sentenced to life in prison, where he remains today at MCI/Norfolk. Except that during his tour as a lifetime guest of the Massachusetts Department of Correction (DOC,) he decided that he was "really" a woman , and began wearing women's makeup and growing his hair long. That shouldn’t surprise anyone these days, should it? After all, life is about changes, isn’t it? After a while, he wasn't satisfied with the Maybelline look, so what did he do? He got the bright idea of seeking a sex change operation (something that ten years ago was considered freakish, and in our “culture” now seems like nothing at all.) But, you see, Mr. Kosilek didn’t plan on paying for this himself. Of course not. So what did he do? The “natural” thing, of course: He sued the state of Massachusetts, seeking to force the Massachusetts Department of Corrections (DOC) to pay for it.

The DOC, of course, refused. So Mr. Kosilek – with lawyers paid for by you and me, the taxpayers, sued in federal court, seeking an order forcing the state of Massachusetts to pay for this “sex reassignment surgery.” Judge Mark L. Wolf (the L should be for “Liberal,”) of the U.S. District Court in Boston, ordered in a September 2012 decision that the state of Massachusetts was required to provide the surgery for this murderous, fried example of a human being. The esteemed Judge Wolf’s legal reasoning? It would be “cruel and Unusual punishment” to deprive poor Mr. Kosilek of this “urgently needed” operation. Thankfully, the state of Massachusetts appealed the judge’s decision to the U.S. First Circuit Court of Appeals. Everyone in the legal community waited with baited breath.

The result? A 3 judge panel of the U.S. First Circuit Court of Appeals ruled that judge Wolf’s ruling was correct. Affirming the lower court ruling, the Court of Appeals ordered the Massachusetts Department of Corrections to make immediate arrangements for this surgery. Their legal reasoning? The same as it was below: To deny Kosilek this surgery would constitute “cruel and unusual punishment,” in violation of the Eighth Amendment to the U.S. Constitution.

To say that, as a Dedham/Boston Massachusetts criminal defense attorney, I am outraged by this, would be an understatement. Let me give you a very brief course on where and why the Eighth Amendment banning “cruel and unusual punishment” came about. The Founding Fathers of this country escaped another country (England) where savage brutality was regularly inflicted by the government on criminal defendants and convicts. In pre-colonial England, torture as a form of punishment was commonplace. Some examples? The Rack, where victims were slowly torn apart until they either confessed or died. Public floggings, where people were literally whipped to death. Draw and quartering, where victims’ limbs were tied to four horses, and their limbs literally pulled out. People were burned to death at the stake. Their intestines were pulled out of them while they were still alive (ever see the end of Braveheart?) They were literally boiled to death, in scalding oil. Heard enough?

All those frightening forms of punishment and torture defined the lives of the Founding Fathers who escaped to this country to form a more just government. Coming from where they did, they knew that the new government that they were forming here, must not be allowed to inflict such “cruel and unusual punishments” on its citizens. That’s why they amended our original Constitution, to make sure that our government could never inflict such punishment on criminal defendants, criminal convicts, or anyone else. THAT is why this Amendment was passed. THAT is what it was designed to prevent. And yet, shockingly,THAT is the same constitutional basis upon which both the U.S. District Court in Boston, and the U.S. Court of Appeals for the First Circuit, based their reasoning on in this case.

As an attorney, this is truly almost impossible for me to comprehend. But it has actually come to this, in this country: Denying a savage murderer’s request for a sex change operation, is now legally considered to constitute “cruel and unusual punishment.” To say that both of these rulings is an abomination, is too meek; to say that these rulings are a perversion of our Constitution, is too understated. To say that it is a sad day for this country, is too inadequate. As a Massachusetts criminal defense lawyer, I want to apologize to people for these federal court rulings. What has caused this? What has become of this country, that such a twisted decision could come from two separate federal courts? The answer is one word: Liberalism. Liberals, and liberal judges, are rapidly transforming this country from one where common sense and reasonable thinking once prevailed, to a distorted place, where even convicted murderers can get a sex change operation – estimated to cost upwards of $50,000.00 - paid for completely by you and me, the taxpayers.

Oh, one other thing that should be included here: Kosilek’s lawyers – the ones who have been “Fighting” to defend his “constitutional rights. How much do you think that cost, in total? Almost $700,000.00, over the years spanning this case. And, together with the medical expenses involved here, who will pay for that approximately $750,000.00? You and me – the taxpayers.

So the next time you hear that a judge has been nominated to this or that court, whether a local court or the U.S. Supreme Court – I suggest you find out if that judge is known to be a “liberal thinker” or not. Because this kind of decision is what can result.

January 10, 2014

ACLU’S LATEST “BIG IDEA”: LET’S BAN DRUG AND WEAPONS-SNIFFING DOGS FROM PRISONS

Most people who know me would tell you I’m “Not a liberal,” – and they’d be right. Most of my non-liberal views and positions concern political issues. However, when it comes to legal issues and protecting the legal rights of defendants who have been accused of crimes, I fight tooth and nail to protect and acquit my clients. I believe in the rule of law, and the law provides criminal defendants with certain rights, which I believe should be protected.

But there’s one legal organization out there, that I have never agreed with. Frankly, I find a great deal of their positions on legal issues (never mind social issues) to be extreme in the least, flamingly liberal, and obnoxious (which are often one and the same thing.) That organization is none other than the ACLU, as in American Civil Liberties Union – that bastion of left-wing radicals that aims to turn the United States into a dystopian country where EVERYONE can do ANYTHING they want or SAY ANYTHING they want, ANY WAY they want, at ANY TIME they want, in ANY place they want, where NO ONE can stop them or restrict them on any level. No matter how sickening and disturbing the speech. No matter how hateful the crime. No matter how destructive the conduct – such as manufacturing barbarically violent video games that poison the minds of young teenagers everywhere, producing massacres like Newtown, Conn. In their strange world, no one can be prevented by government from doing or saying ANYTHING they want.

Yet their middle name, literally, is “Civil Liberties.” Sounds great, doesn’t it? I have learned in life that what something sounds like, and what it actually is like, are two very different things. And the ACLU is Exhibit “A” on that point.

The ACLU’s latest twist in twisted thinking, is to try to do something that in my view is beyond any rational thinking: They want to ban drug-sniffing dogs in Massachusetts prisons, from sniffing visitors who enter the prison to see prison inmates. This is almost beyond thought. As a Dedham, Massachusetts drug defense attorney, I know ‘a thing or two’ about jails and prisons. Despite coordinated efforts to keep out drugs, weapons, and other contraband, prisons are hotbeds of smuggling operations by inmates. Why? Because a great many of these prisoners have been convicted of Massachusetts drug crimes – or worse, have been convicted of Massachusetts sexual offense charges, Massachusetts theft crimes, and even murder. The smuggling mostly involves drugs that visitors bring to inmates, but can also involve weapons. Corrections officers do everything they can to minimize the flow of drugs and weapons into jails and prisons, but prisoners’ efforts to smuggle them in never cease. This smuggling activity places not only other inmates at risk, but prison guards also.

The ACLU of Massachusetts has actually sued the Massachusetts Department of Corrections, claiming – hold on to your hats – that the act of a drug-sniffing dog, sniffing an inmate visitor for contraband, constitutes an “invasive” and “unreasonable” search, which will make it “difficult for visitors” and perhaps “reduce the number of visits with inmates’ loved ones.” Can any rational mind believe this? These drug sniffing dogs are all non-aggressive, generally Golden Retrievers or Labrador Retrievers, and “are used because of their inherent gentle natures and help detect the presence of illegal drugs entering DOC facilities,” to quote the Department of Correction’s own website. These are not vicious, snarling, German Shepherds – the last time I checked, Golden Retrievers and Labradors were among the most docile dogs known to man. And they’re used in PRISONS – these aren’t public libraries. More so, they’re used in some of the most dangerous prisons in Massachusetts – maximum and medium security prisons.

Yet, the ACLU actually claims they’re “inappropriate,” “invasive,” and “impermissible.” Their “rationale” is that the dogs may occasionally indicate a “false positive” on a visitor – which could “embarrass” the visitor or make him/her feel “anxious.” Can you believe that? In an airport, people can be searched up and down, inside and out, scanned electronically, and be sniffed by drug-detecting dogs. You’re even asked to take some of your clothes off. Happens every day to millions of people. It’s necessary. We accept that. But let visitors to maximum-security Massachusetts prisons be sniffed by a gentle Golden Retriever? Oh, no!! We MUST stop that!! What if a dog incorrectly indicated a visitor might have illegal drugs on his or her person? Oh, God, they’ll never be the same!!” The horror!

I’m a Massachusetts criminal defense attorney. That means I value civil liberties. But the ACLU can make me sick with its extreme and outrageous lawsuits, which it likes to file as snowflakes fly in a blizzard. I wish they would take their unreasonably, sickeningly liberal views, and use them to sue for something that’s REALLY needed.

I’m not holding my breath.

December 26, 2013

Massachusetts SJC Decision Barring Juvenile Life Sentences Without Parole: Good or Bad?

In my previous post on Christmas Day, I wrote briefly about the Massachusetts Supreme Judicial Court’s (SJC) decision earlier this week barring life sentences for juveniles convicted of murder. The SJC’s concerned the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in Kenmore Square. He has served thirty years of a life sentence, and the court ruled that he can be considered for parole immediately.

The legal and news media are all abuzz about this decision, primarily because the decision is retroactive, meaning that juveniles previously sentenced to life in prison, can now be eligible for parole. It may also be possible to have their sentences reviewed entirely.

Is this a wise decision, based on sound medical science regarding juvenile brain development being incomplete, or is it “junk science,” ignoring the voluntary choices that these youths made to commit horrific acts of murderous violence? As with so many things in life, it depends on who you ask. Ask a doctor who leans toward a law-and-order attitude, and he or she will tell you that these youthful murderers didn't commit the crimes they did because they were under a certain age of “development,” but rather because they are simply violent and morally depraved. Ask a liberal doctor the same question, and you’ll get an opposite answer. Ask a criminal defense lawyer, and you’ll hear that the court’s decision is a fair and just one; ask a prosecutor and you’ll hear how it strains reasoning, and how it handcuffs police and prosecutors in punishing and incarcerating dangerously violent criminals from the public.

As a Wrentham Mass. criminal defense lawyer, how do I feel about this ruling? As always, I try to make my position a balanced one. Prior to approximately a year ago, Massachusetts had some of the most strict, hard-line laws in the country when it came to sentencing juveniles convicted of Murder One: Automatic, mandatory life term in prison without the possibility of parole – the same as with adult convicts. Then, about a year ago, the U.S. Supreme Court ruled that automatic, mandatory life terms in prison for juveniles was unconstitutional. Critically, however, SCOTUS’ ruling in that decision did not absolutely prohibit a judge from sentencing a juvenile convicted or murder to life in prison – it just removed the “mandatory” element of such sentencing. This meant that judges could still retain the discretion to sentence a juvenile to life in prison without parole, if a judge felt the circumstances of the case warranted it.

This week’s decision by the SJC went even further than the SCOTUS decision: The SJC ruled that under no circumstances can a juvenile convicted of murder be sentenced to a life term in prison with no possibility of parole.

As a Boston juvenile defense lawyer, I have to say that I think this decision is too far-reaching, and too extreme in its absolute exclusivity of such sentencing options. While I certainly agreed with and supported SCOTUS’ previous decision striking down mandatory life sentences without parole for juveniles, I do believe that judges should retain the option to sentence very particular juvenile murder convicts to a life term in prison, under extreme circumstances.

Don’t be surprised. As a Massachusetts criminal defense attorney, I believe powerfully that ALL criminal defendants – of whatever age – should receive a vigorous, zealous, aggressive defense in court. Every legal permissible defense should be employed, and forcefully. And if a conviction results, the case should be appealed with equal force and aggressiveness. That is precisely what I do for my own clients, and I do it forcefully. But when a jury and judge has spoken, all appeals have been exhausted, and the evidence remains that a juvenile defendant committed a horrific act of unspeakable violence, then I believe that a judge should have the legal option to sentence such a juvenile defendant to life in prison, under the appropriate circumstances.

The sole fact that someone is a juvenile (under 18, in this state) should not give that person automatic protection from being punished as someone who is over 18 is punished. That, in my professional view, is not balanced or just. If you question that, I would suggest you research the cases involving Eddie O’Brien here in Massachusetts, who at age 15 stabbed his neighbor's mother to death -- by stabbing her 90 times. Or John Odgren, a special needs student who stabbed 15-year-old James F. Alenson to death in a bathroom at Lincoln-Sudbury Regional High School in January 2007. These juveniles were convicted of committing horrific, unspeakably violent murders. They and more than 60 other juveniles like them will now be eligible for parole one day, after serving just 15 years of their sentence, and potentially released back on to the streets. That means Edward O'Brien could be back on the streets before his 30th birthday. Roughly the same for John Odgren.

Do you feel that because convicted murderers like these were perhaps two or three birthdays away from the age of 18 when they were sentenced, they should be given this potential “out,” - one that a similar murder convict one year older would not receive? And would you feel safe if one of them was walking behind you on a street, having been paroled from prison?

As a Massachusetts juvenile crimes defense attorney, I fight hard for my clients, tooth and nail. But in select cases of a horrific nature, at some point, justice needs to be served. And I became a lawyer to produce justice. Not sing a party line. I say this with full respect for my brother and sister criminal defense attorneys who may not agree with me.

December 25, 2013

Massachusetts SJC Delivers a Christmas Present to Juvenile ‘Lifers’

The Massachusetts Supreme Judicial Court (SJC) has delivered a Christmas present to about 63 convicts who were sentenced to prison for life when they were juveniles – which, prior to earlier this year, meant age 17 and under. The court barred life sentences without parole for juveniles yesterday (Tuesday, December 24,) ruling that scientific research demonstrates that juvenile brains are “not fully developed,” and therefore that sentences of life in prison with no possibility of parole constitutes “cruel and unusual punishment”, in violation of the U.S. Constitution.


As a Boston, Massachusetts criminal defense lawyer, I have some thoughts about this. I’ll have more to say about this tomorrow, but for now, what I want to say to my readers is this: May the sentiment of goodwill toward man and peace toward others sink into people’s hearts long after this day and this season passes. Too much suffering abides this world.