Boston Criminal Attorney Blog

The twisted saga of the Amy Bishop case became (hopefully) a little clearer today, with the release of a press statement by Congressman William D. Delahunt, who was the Norfolk County District Attorney at the time of the May 1986 incidents surrounding the shooting death of Bishop’s brother, Seth Bishop.

Much has been made in the past week, concerning the fact that Amy Bishop was never charged with a crime in connection with her actions following the shooting death of her brother Seth. Those actions several Massachusetts firearms violations wich included Bishop aiming a loaded shotgun at several people, including two employees at Dave Dinger Ford in Braintree, where she demanded a getaway car and keys. Armed officers from the Braintree Police Department had to tackle Bishop from behind to wrest the shotgun from her, yet she was never arrested, or charged with any Massachusetts crimes. Twenty-four years later (with some disturbing and highly suspicious criminal conduct in between,) Bishop shot five people on the campus of the University of Alabama, killing three and wounding two. The central question on everyone’s lips for the past week: How could Bishop have been released? How is it she was never even charged with a crime? The response from all the various law enforcement and prosecutorial parties involved has, so far, largely been finger-pointing.

The question is, whose finger is pointing in the right direction? The parties involved here were: 1) The Braintree Police Department. They had primary law enforcement and investigative jurisdiction, as the crimes occurred in the town of Braintree. 2) The Massachusetts State Police. They were brought in because a killing and possible murder may have been involved, and when such an event occurs, it is standard procedure that State Police investigators are called in. (Actually, a state Police unit is already assigned to and housed within each District Attorney’s office.) 3) The Norfolk District Attorney’s Office. They would have been responsible for prosecuting any crimes that police investigators referred to them. Let’s review who should have done what:

As a Norfolk County criminal defense lawyer who has practiced for over 15 years, I can advise my readers that it is the local (city or town) police department that is tasked with the primary responsibility of investigating any reported or suspected crimes, and of fully informing the office of the District Attorney regarding the results of that investigation. From the information that is available to me so far, the State Trooper who investigated the death of Seth Bishop, a Brian Howe, had concluded that Amy Bishop shot and killed her brother by accident. But from what has been discovered to date, Braintree police never alerted Howe or any prosecutors in Delahunt’s office of the fact that Amy Bishop had then fled the house with a loaded shotgun, and that she later tried to steal a getaway car from two men at gunpoint, inside Dave Dinger Ford, nor that she was arrested after that brief armed standoff with police. How this information could not have been communicated to then-District attorney Delahunt, is, to quote current Norfolk District Attorney William Keating, “inexplicable.”

But to blame Delahunt, at this stage in this investigation, is premature. District Attorneys’ offices do not investigate crimes. Local and state police do. A District Attoneys' office also does not, initially, preserve evidence. The police do. Neither do DA's offices – initially, that is, immediately following the commission of a crime – interview witnesses. Police do. District Attorneys don’t have the power to make direct arrests under typical circumstances – police do. DA's offices don’t seek criminal complaints in the District Courts – they prosecute the criminal complaints in those courts, once those complaints are first filed by police departments. DA’s offices can also, if provided with enough evidence developed by police investigators, present that evidence to a grand jury, to seek an indictment. In sum, District Attorneys' offices don't go out looking for crimes, or, very initially, investigate them. They prosecute what police departments place in front of them.

And here, it appears - so far, anyway - that the Braintree Police Department, for reasons not yet fully explained or fully known, did not provide either the State Police or the Norfolk District Attorney’s office with the full scope of what Amy Bishop had done, immediately following the shooting death of her brother. It was the Braintree Police Department who advised the state police investigator that Seth Bishop’s death was accidental. Those statements came from the highest level of the Department: Former Police Chief John Polio, who had publicly commented, "Every indication at this point in time leads us to believe that it was an accidental shooting.’“ That information was corroborated by the Massachusetts state medical examiner at the time, who ruled the death was due to an ‘accidental discharge from a shotgun.’

• With the command staff of the Braintree Police Department telling Delahunt that Seth Bishop’s death was accidental, and with them not telling him of Amy Bishop’s criminal acts immediately after her brother’s shooting;
• With the Braintree Police informing, and importantly not informing, the state Police investigator of the same things;
• With all the reports uniformly saying that Seth Bishop’s death was an accident, and with no other information to lead him to believe that any crime had been committed by Amy Bishop,

- what else, legally, was Delahunt to do? Without this critical information that we now know to be true, and that presently appears for some unexplained reason was not transmitted to both the State Police and Delahunt’s office by Braintree Police, on a purely legal and prosecutorial level, there wasn’t much if anything that the-then District Attorney could do. It was the Braintree Police Department that had primary investigative jurisdiction over this incident. Everything that they did or didn’t do following that shooting incident, formed the basis of the actions and inactions that followed in this sorry matter.

More information will be forthcoming in the days ahead. Let’s reserve judgment until every sheet possible has been pulled back on this story. If it was the then-District Attorney who failed in some respect here, that will become obvious. As of right now, that doesn’t appear to be the case. Some people might expect a Norfolk County murder defense lawyer to come down hard on a DA’s office (practicing on the opposite side of the legal aisle as I do.) I think the truth is more important. Some people (primarily within law enforcement, understandably,) will see a rush to judgment in my opinion that the core of the communications failures that apparently occurred in this incident, seem to lay within the Braintree Police Department. I am commenting on the information available to date. If more information develops to counter what is presently available, then a reassessment will be needed.

An investigation is now being headed by current Norfolk District Attorney William Keating, which I hope will be thorough. But as of today’s date, I’d say the finger-pointing, should point away from Bill Delahunt.

The recent media coverage about the death of Nancy Kerrigan’s father, which has now been ruled a homicide by the Massachusetts Medical Examiner’s office, illustrates how fast and furious an argument can escalate into something far more dire: Potentially a murder charge. Kerrigan, of course, is the 1994 Olympic figure skater who was the target of a physical attack by associates of her rival, Tonya Harding.

Kerrigan’s brother, Mark Kerrigan, 45, was arrested on January 24 on a charge of assault and battery after Stoneham police responded to a domestic disturbance call from the Kerrigan home. On arriving, the police reportedly found Kerrigan’s father, Daniel Kerrigan, lying unconscious on the kitchen floor at the house at about 1:30 AM. He later died at the hospital he was taken to. The medical examiner’s office determined that Daniel Kerrigan suffered from high blood pressure and clogged arteries, but that the cause of death was “cardiac dysrhythmia” — which is an interruption of the normal heart beat — after a “physical altercation with neck compression” that fractured the cartilage in his larynx. In other words, that Mark Kerrigan precipitated the events that led to the elder Kerrigan’s death, through the act of putting his hands around his father’s neck and attempting to strangle him.

Officers said Mark Kerrigan appeared intoxicated and was found in the basement trying to hide a bottle of Scotch. Police reported that the younger Kerrigan was combative, that they had to use pepper spray to subdue him, and had to forcibly carry him out of the basement. The report filed by the arresting officers says, “(Mark Kerrigan) said he wanted to use the phone and his father would not let him. He said he struggled with his father and put his hands around his father’s neck and his father fell to the floor.” The younger Kerrigan reportedly has a long history of domestic violence, substance abuse and mental illness. Last year, he was released from prison after serving more than two years for assaulting his wife and threatening her with a knife. He was staying in his parents’ home, even though they had sued him recently for what they said was over $100,000 in unpaid debts. He was reportedly taking medication for post-traumatic stress syndrome, and is presently being held under psychiatric evaluation. Nancy Kerrigan, joined by her brother Michael and their mother Brenda, have criticized the coroner’s finding as “premature and inaccurate,” insisting that her brother is not to blame for the elder Kerrigan’s death.

Legally, what could Mark Kerrigan be charged with? Not likely murder. In Massachusetts, a charge of murder in the first degree must be supported by evidence of premeditation or extreme cruelty or atrocity. Neither seems to be indicated by the evidence here. Much more possible, is a charge of involuntary manslaughter or voluntary manslaughter. The differences? If you click on either of these two links, my web site makes it all pretty clear, but I’ll sum it up very briefly again, here:

Voluntary Manslaughter:

The definition by Massachusetts case law: "The unlawful killing of another, intentionally caused from a sudden transport of passion or heat of blood: (1) upon a reasonable provocation and without malice or upon sudden combat; or (2) from the excessive use of force in self-defense." Voluntary manslaughter involves a killing without malice, distinguishing the crime from murder. Under voluntary manslaughter, the defendant did intend to kill the victim or inflict serious bodily harm, but due to the existence of some mitigating circumstance(s), the law infers that malice was not present. This can apply when the killing occurs out of passion or the heat of the moment that results from a "reasonable provocation" or a spontaneous fight. It applies when “adequate provocation” causes the defendant, in essence, to lose the self-control that would be expected of an ordinary, reasonable person. Exactly what does and doesn’t constitute "adequate provocation", is an objective test of whether an ordinary person would have been provoked by the situation in question. It’s possible that an aggressive prosecutor might opt for this charge here, but, as a Norfolk County criminal defense lawyer, I don’t see this charge as applying to the police report filed in this arrest.
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Involuntary Manslaughter: "(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or (2) an unintentional killing resulting from a battery." This is the much more likely charge that will result in this case. (Particularly given the victim’s family’s insistence that Mark Kerrigan had no intent to cause death or serious bodily harm to the victim.)

This sad family story should send a message to anyone inclined to think that a simple fight will stay that way - a few punches thrown, and no big deal. As a Boston asault and battery lawyer, I have seen more cases than I care to remember, where either one person thinks he/she has the right to physically attack another, or two people agree to engage in mutual combat – only to have it end in the serious injury or death of one or both. All it takes is a fractured larynx, a punch landing on the head, all fall backward splitting the skull, a blow to the chest causing sudden heart failure, and it’s over. If not “over” as in death, definitely “over” as to the rest of that person’s prospects in life. I’ve seen more assault and battery cases escalate into far more grievous legal charges, such as manslaughter or even murder.

Translation: Unless in self-defense, keep your hands to yourself.

A funny thing happened on the way to the Common in 2007.

It seems that one Simon Glick, 33, was walking along Tremont Street next to the Boston Common on October 1 2007, when he observed three (yes, three) uniformed Boston police officers arresting another man, and using considerable force. Glick, a law student at the time and now (perhaps no surprise,) a criminal defense attorney, heard another man shouting “You are hurting him, stop!” at the officers. Thinking that he was witnessing three police officers brutalize the man who was being arrested, Glick used his cell phone to video record the event. When these officers saw Glick recording them on video, they arrested him. For what? For violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The "wiretapping statute" criminalizes the "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication, without the permission of all parties to the communication. The staute provides that persons violating the law may be punished by a fine of up to $10,000, or imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. In this area of law, Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legal. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held.

Not surprisingly, the case was later dismissed, particularly due to the fact that there was no "secret" recording of this event. Notwithstanding, it seems obvious (at least to me, as a Boston criminal defense lawyer,) what these officers were trying to cover up: The fact that they were using excessive force in arresting the first man, which Glick (and at least one other observer – the man who yelled out “Stop, you are hurting him!”) had witnessed. As a Massachusetts criminal defense attorney who has defended cases from assault and battery to drug offenses and sexual offenses, I can only imagine the reaction of the Assistant DA in the Suffolk County District Attorney's office who ended up being the recipient of this case (“These cops expect me to prosecute for this? It’ll be thrown out in a second.”) As I said, this statute was intended exclusively to prevent hidden, covert audio recordings of phone conversations or otherwise private meetings – not video recording of public events. Without doubt, these officers saw themselves getting caught in the act of police brutality, and then made things even worse by arresting Glick on this essentially baselss charge.

But the story isn’t over. Now, the American Civil Liberties Union of Massachusetts has filed a civil rights lawsuit against the city of Boston and these three officers for violating Glick’s First Amendment rights to free speech and his Fourth Amendment right to be free from arrest without probable cause. I thoroughly agree with both of these allegations. From all apparent indications, this case is a flagrant example of abusive police conduct, not only against the first man being arrested, but against Glick, also. Howard Friedman, an attorney working with the ACLU to represent Glick, commented, “Just because these police officers were unhappy about being recorded, doesn’t allow them to make an arrest. If a person is standing, as Mr. Glick was, many feet away and simply recording, that’s not a crime.”

A spokesman for the Boston Police Department declined to comment. Mayor Thomas M. Menino’s office also had no comment. No surprises there. I said I could easily imagine the reaction of the Assistant district Attorney who had the unfortunate luck to be handed this case, and I can also easily imagine the reaction of the corporation counsel for the city of Boston, upon hearing of this case: “We’d better settle this one.” In the interests of fair reporting and equal time, let’s take a look at the police union’s response. Thomas J. Nee, president of the Boston Police Patrolmen’s Association, said: “There is no problem with photographing or videotaping, but when it comes to conversations, police officers need a warrant or permission, and, as police officers, we are entitled to the same rights as every citizen of the Commonwealth to be free from surreptitious recording of our voices. It’s a protected activity.’’

Sorry, Mr. Nee – no, openly (vs, secretly) video taping public events isn’t “protected activity”. You need to speak with your lawyer, again. This statute applies only to voices recorded without the consent of the other party, over a phone or otherwise during a private meeting. It does not apply to public places or public events, and the legislative intent behind this law is clear. While there have been cases producing some convictions in tis area of law, they don't quite match the fact pattern in this case - particularly the non-secret nature of the video recording involved here.

It’s unfortunate when something like this happens, because it undermines public confidence in the good work that most police officers do. Even though, as a Norfolk County criminal defense attorney, I work from the opposite side of the aisle with police and prosecutors, I know that the vast majority of police officers are hard-working, ethical people. Bad apples, such as appears to be the case with these officers in this case, give good police a bad name.

Here’s an interesting case – controversy, actually – that involves a hybrid of criminal law and tort law – specifically, the tort of wrongful death.

Famous television legal journalist Nancy Grace is known far and wide for her aggressive, take-no-prisoners on-air persona. Her interview style is very probative, and she doesn’t let evasive interview subjects off the hook easily. Ms. Grace is a former prosecutor, and it forms her approach to the subjects she covers on her HLN cable network show, “Nancy Grace“ – HLN’s most popular show. (The show, of course, covers criminal law almost exclusively.) Ms. Grace has an interesting background. Professionally, she was a career prosecutor for almost a decade in the Atlanta-Fulton County, Georgia District Attorney's office. She prosecuted primarily felony cases involving serial murder, serial rape, serial child molestation and arson. In sum, the most gruesome of cases. Personally, Ms. Grace was the victim of violent crime herself, when her fiancé was murdered many years ago. She has stated publicly that this tragedy will never leave her – understandably so.

The sum of this personal tragedy and professional experience is that Ms. Grace takes a decidedly pro-victim philosophy on her show. Because of this, a lot of defense attorneys across the United States doesn’t care for her, thinking her biased towards victims before the fact, in any case she examines. One prominent criminal defense attorney has publicly said of her, “Nancy has never met a victim she didn't love and never met a suspect she didn't want to tar and feather."

Hmm. As a Boston criminal defense attorney myself, I think this characterization is unfair to Ms. Grace. Further, I’d point out that the very defense attorneys who serve as her detractors, accusing her of constant bias towards victims, aren’t willing to point out that they, too, are biased – in favor of defendants. That’s understandable – I can be that way myself at times. It’s natural for opposing attorneys to be this way – but under the aegis of full disclosure, Nancy’s detractors ought to admit this before criticizing her.

Which brings us to today’s subject: Almost four years ago, a 2 year-old boy by the name of Trenton Duckett went missing in Leesburg, Florida. The boy was not found after his disappearance, and has never been. The boy’s mother, Melinda Duckett, was a 21 year-old woman, and had been questioned by police about the boy’s disappearance. On September 7 2006, Ms. Duckett appeared by telephone interview on Ms. Grace’s show, to discuss the case. As the interview began, Ms. Grace seemed sympathetic to Ms. Duckett, but as the interview progressed, Ms. Duckett declined to answer some of Ms. Grace’s quite reasonable questions about her own whereabouts the day of her son’s disappearance. During Grace's interview, the host increased the scope of her questions regarding Ms. Duckett's activities and whereabouts the day her son went missing, and Ms. Duckett became evasive, refusing to answer. At one point, Ms. Grace demanded of Ms. Duckett, "Where were you? Why aren't you telling us where you were that day?" Ms. Duckett answered (rather blithely,) “Because I don’t want to.” When, understandably incredulous, Ms. Grace pressed, “Why?”, Ms. Duckett remained silent.

The next day, just hours before the interview with Ms. Grace was set to air, Ms. Duckett shot herself in the head, killing herself. The broader media picked up the story, it grew, and about a week later, Good Morning America (GMA) interviewed Ms. Grace, who insisted that “If anything, I would suggest that guilt made her commit suicide" "To suggest that a 15- or 20-minute interview can cause someone to commit suicide is focusing on the wrong thing." Melinda Duckett's parents, Bethann and William Eubank, along with her aunt Kathleen Calvert, filed a wrongful death lawsuit against Grace two months after Melinda's Sept. 7, 2006, appearance on Ms. Grace’s show. The plaintiffs allege that Ms. Grace’s questioning caused Ms. Duckett to commit suicide, and they want damages.

Legally speaking, the plaintiffs here are alleging that Ms. Grace, by her questioning and treatment of Duckett, caused “intentional infliction of emotional distress” on Ms. Duckett, which caused her suicide. What they don’t mention as prominently in their press releases, is that Ms. Duckett had attempted suicide before, and that she never did account for her whereabouts the day her son went missing. As is normal for a civil case like this, it dragged on for quite some time, and depositions were scheduled. Recently, a videotaped deposition of Ms. Grace was scheduled by the plaintiffs, and Ms. Grace’s lawyers filed a motion to forbid the deposition from being videotaped. Predictably, the plaintiffs’ attorneys objected, and earlier this week the court granted the plaintiffs’ motion, ruling that Ms. Grace’s deposition would be video-recorded. From a public relations perspective, I can understand why Grace’s lawyers would want to quash videotaping her deposition. Nancy is a public figure, and if a video of something like that hit the internet, it could cause enormous imbalance in the case. But as videotaping of dispositions is highly common I think this was a fair ruling.

What I want to comment more on, are the accusations that Ms.Grace did anything wrong in her interview of Melinda Duckett. I’ve watched this interview, several times. I see nothing inappropriate, abusive, or improper in Ms. Grace’s questioning of Ms. Duckett. I think the allegations of intentional infliction of emotional distress are baseless – and I say this as a Massachusetts wrongful death lawyer, as well as a Boston criminal defense lawyer. Whether this interview subject had never committed or not, I see nothing in Ms. Grace’s conduct or demeanor that meets the legal definition of “intentional infliction of emotional distress.” More so, it is more than relevant to note that Ms. Duckett, in refusing to answer logical, reasonable questions posed by Ms. Grace during this interview, not only refused to answer the questions, but also refused to even state why she wouldn’t answer them. While not dispositive of guilt in itself, it’s inferential in the least.

It’s been pointed out by some of Ms. Grace’s detractors that liability might hinge here, in the pretext that was offered to Ms. Duckett, for appearing on the show in the first place. In other words, such persons have suggested that if a booking editor at HLN had induced Ms. Duckett to appear on the show with false assurances that Ms. Grace only wanted to help her find her baby, that Ms. Grace was entirely sympathetic toward her, and falsely represented that Ms. Grace would, in essence, ‘treat her with kid gloves’ only to aggressively interrogate her once on-air, that liability may result from such deception. This is a highly speculative and risky theory. Any intelligent adult appearing as an interview subject on a criminal affairs television show, would have to reasonably be on notice that any variety of questions could be asked.

As a criminal defense attorney who earns his living on the opposite side of the legal aisle that Ms. Grace occupies, I find her an admirable attorney, and an admirable person. While I agree that her deposition should have been subject to video recording as is routine civil practice in many such cases, I think her detractors should cut her a break. She speaks her mind and she does it in an ethical, professional manner.

And there shouldn't be any liability that results from that.

The criminal defense bar in Massachusetts has for over a year paid close attention to defrocked Catholic priest Paul Shanley’s appeal to the Massachusetts Supreme Judicial Court (SJC), of his 2005 rape conviction. The SJC’s decision is now in, and it isn’t good for Shanley, or for many Massachusetts rape defense lawyers.

Shanley, one of the more well-known of several catholic priests that surfaced as part of the catholic clergy sex abuse scandal that erupted in 2002 in Boston, was convicted in February of 2005 on two counts of rape of a child under the age of14, and of indecent assault and battery of a child under 14 (those charges are subsidiary to the rape charges.) Shanley appealed his conviction all the way to the SJC, advancing primarily one legal argument: That the Superior Court judge who allowed expert testimony on the subject of “repressed memory syndrome,” did so erroneously, and thus that his conviction should be voided. For those of my readers that may not immediately recall, “repressed memory syndrome,” (clinically referred to as “dissociative amnesia,”) is a legal theory that developed in largely the past ten years. In sum, it argues that a person who suffers a psychological trauma, may unconscionably repress, or “forget” the memory of that incident, until a ‘triggering event’ stimulates a recovery of the memories.

This prosecutorial theory is important, because it allows prosecutors to ‘get around’ statute of limitations problems, which would otherwise prohibit the state from prosecuting certain crimes. You see, if an alleged victim to a crime does not come forward to make a complaint to police authorities and therefore allow the Commonwealth to file charges against the defendant, within the time period required by that statute, then the prosecution is statutorily barred. In this case, Shanley’s alleged victim came forward in 2002, when the clergy sex abuse scandal broke wide open in the media. The victim claimed that only then – in 2002 – did he suddenly remember being allegedly raped by Shanley when he was an altar boy several years earlier – because, he claimed, the memory of the alleged rapes was triggered by exposure to media coverage of Shanley’s arrest on charges of raping and abusing other boys. The timing of an alleged victim’s complaint to authorities in both this case, and all similar cases, is critical: If the alleged victim waits too long (i.e., beyond the statute of limitations period) to come forward to authorities and formally commence prosecution of a defendant, that person forever loses the ability to have that person prosecuted. That rule of law was developed for very good (and specific) reasons. It prevents people from being forever exposed to prosecution for a serious crime, if an alleged victim does not choose to come forward to authorities within a lengthy – quite lengthy- period of time.

However, under Massachusetts law, the “tolling period” – the date when the statute begins to run – is the date that the alleged victim first became aware of the alleged crime – not the date that the alleged crime was committed. When these types of statutes were first written - not that long ago – they revolved around logic: If someone were a victim of a serious crime, and chose for many years to never file charges against the alleged defendant – then it was legislatively “presumed” that something must “be missing” in the victim’s evidence or the victim’s story – and that in the interests of justice, the door to prosecution against the defendant should at some point in the future be closed. In my view as a Boston Massachusetts sex offense lawyer, that’s a fairly balanced approach. But science, together with sometimes questionable psychological theories, it seems, never ceases its advance.

“Repressed memory syndrome,” which was developed by prosecutors and psychiatrists, argues that if an alleged victim unconsciously repressed his or her memory of the alleged crime for ‘X’ number of years after the alleged crime, and under normal circumstances the defendant could not be prosecuted for that crime because the statue of limitations had run, the prosecution should still be allowed if the time between the alleged victim’s recovered memory and the time of his complaint, is not greater that the time recited by the statue of limitations. Here, the victim testified at Shanley’s 2005 trial that more than 20 years had passed before he remembered what had happened to him. Normally, this would have barred his complaint from being prosecuted, as this period exceeds the statute of limitations for this crime. But, he testified that his memory came back in 2002 after being exposed to widespread media coverage about Shanley and the church sex abuse scandal. And it was the admission of that testimony – and particularly the trial judge’s admission of psychological expert testimony on the theory of dissociative amnesia - which allowed the jury to convict Shanley.

I’ll discuss the precise legal objections advanced by Shanley’s appeal, and the SJC’s reasoning, in my next post.

In my previous posts on the subject of what can happen when a defendant who has been sentenced to probation, violates one or more of the terms of his probation agreement, I discussed the case of Massachusetts state senator Anthony Galluccio. Galluccio was sentenced to probation recently for leaving the scene of an accident last October 4 2009, in which a 13-year-old boy was I injured. Because Galluccio had previously been convicted twice on Massachusetts drunk driving charges, (one of which he had been pardoned for) and because investigators suspected that alcohol was involved in the October 2009 vehicular accident where Galluccio left the scene, a judge placed Galluccio under house arrest and placed him on probation. One of the terms of that probation order, was that Galluccio abstain completely from ingesting alcohol. To monitor his compliance with that order, an electronic alcohol monitoring device (called a “Sobrietor”) was installed in Galluccio’s home, and he was required to submit to random alcohol testing with that device.

Three days after receiving that sentence, Galluccio tested positive (on three separate tests) for alcohol. He was then arrested for a Massachusetts probation violation. As part of his defense, he initially claimed that his toothpaste caused a false alcohol reading (he later abandoned that defense). At his court appearance earlier this week, Galluccio showed up in court with two defense lawyers, several public relations representatives, and expert witnesses testifying on his behalf that the “Sobrietor” accuracy might be questionable.

The result? Handcuffs and a trip to a Billerica jail cell for the next 12 months. This very public story illustrates just how serious probation agreements are. Especially when it comes to Massachusetts OUI charges and alcohol abuse. Some defendants think that they can ignore probation agreements – but they’re serious business. The judge in this case, Matthew J. Nestor of Cambridge District Court, had (generally speaking,) three options in front of him, after hearing Galluccio’s defense at this probation revocation hearing: 1) Terminate probation, 2) Re-probate him with more serious conditions – including mandatory alcohol treatment at an inpatient detox center – or 3) Impose a one-year jail sentence. Galluccio and his lawyers probably thought he’d get one of the first two sentences. But as a Dedham Massachusetts OUI defense lawyer, I can assure you: With multiple offenders, luck always runs out.

The buzz in the Massachusetts media right now, is whether Galluccio’s sentence for this probation violation was too harsh. Some observers, including some criminal defense lawyers, are saying that a defendant who wasn’t a public figure would have received a lesser sentence. As a Boston criminal defense lawyer, I’ve seen these cases go either way. Perhaps it’s true that because Galluccio is a high-profile figure, the judge thought that a very powerful message could be sent about alcohol abuse and probation violations with this sentence. Regardless, this case makes clear: Massachusetts DUI/OUI charges are dealt with very seriously, and any probation violations involving alcohol won’t be tolerated lightly.

In my last post, I discussed the most recent Massachusetts OUI arrest involving state senator Anthony D. Galluccio, and his most recent, and rather novel, legal defense. I made the argument that while as a Boston criminal defense lawyer I zealously and aggressively fight for my clients in court, there comes a time, if a person is arrested multiple times for the same offense (such as OUI or a Massachusetts sex offense,) to own up to the problem, cease the excuses, and get effective treatment.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.

In my experience as a Massachusetts OUI defense lawyer, most of my clients who receive probation sentences, understand and appreciate the importance of adhering to any terms of probation they might receive. Any client that I’ve advised to accept a probation sentence (which is not always advisable, as many of my clients are in fact not guilty of OUI,) “gets it” – they know how important it is to obey any terms they are given. But occasionally, I’ve seen other people who take a “Yeah, yeah – sure, sure,” attitude when agreeing to probation – never intending to adhere to the terms. It’s these people that I have no patience for: The ones that couldn’t care less what consequences their conduct may bring. For these people, they either simply don’t care, or they can’t control themselves. When I see such a person, and I’m asked to represent them after they’ve committed multiple offenses involving public safety, I’ll take a close look at their history. If I become convinced that this person has undeniable addiction or behavioral problems beyond their control, I won’t represent them.

I began this post by saying that I fight tooth and nail to defend my clients zealously and aggressively – but I also have to be able to sleep at night with a clear conscience. If I’m morally convinced that if I secure an acquittal for a potential client, that person will go out and commit the same offense, only to perhaps kill or seriously harm someone else, I’ll decline the case. That’s a tough call for a criminal defense lawyer – it’s not easy. And I know several of my colleagues who would disagree with me. But when I think of my wife or a loved one being the next potential victim, it’s a choice I’m brave enough to make. I'd rather see them get effective treatment, than an effective pass to go out an reoffend all over again. This point also illustrates the need for our criminal courts to be more focused on treatment than simply incarceration.

Oh, and by the way - Happy New Year to all my readers. Let's hope that 2010 is a better year, in many ways, economic, social and otherwise, than was 2009.

Today’s post is a real story about limits - in life, professionally and personally. Before I say anything else, let me emphasize the obvious: I’m a criminal defense lawyer. I make my living, in part, by powerfully and aggressively defending clients who are accused of crimes. I fight to the end for my clients. Philosophically, I’ve always cherished the constitutional presumption of innocence in our country, and I believe that presumption should never be diminished in any way. All that being said, there are also times when I believe that if a defendant has committed multiple offenses for a specific act (such as drunk driving,) and has received multiple convictions or other findings tantamount to a guilty plea on those offenses, then he or she is arrested yet again for the same offense, the time comes when that person must own up to their problem, and pay the price that the courts have decreed is appropriate for that offense. As a Boston criminal defense lawyer, I can tell you that this type of situation is most often witnessed in OUI/alcohol and sex offenses.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,’’ and that, “I made a firm decision that there will be no alcohol in my life.’’ As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

Aside from the usual random urine tests for alcohol, his probation agreement required him to use a handheld electronic device called a “Sobrietor”, which allows probation officials to monitor his blood alcohol content while he is at home, through the use of that device. (The device is essentially a breathalyzer similar to the ones used roadside by police, except that it transmits and measures the breath sample over a modem installed in the person’s home.) Also as part of that judgment, Galluccio lost his driver’s license for five years, was ordered to pay a $1,000 fine, ordered to undergo alcohol treatment, and attend a half-day workshop by the Brain Injury Association. The one exception to his home confinement sentence, was that he was allowed to leave home to attend church on Sundays, and to travel to Boston to cast a vote in the state Senate, when needed. The terms of his probation stipulated clearly that if Galluccio violated any term of his probation, he could be sentenced to up to a year in a county jail.

Given that the October incident he was charged with was Galluccio’s fourth incident allegedly involving alcohol, as a Dedham Massachusetts OUI attorney, I can attest that this disposition was extremely lenient. Prosecutors had called for Galluccio to serve jail time. He escaped that. One would think that this sentence would do the trick, but not so. Just days after this rather lenient sentence, Galluccio failed several breathalyzer tests administered through the Sobrietor at his home. That’s bad enough, but what follows is worse: Galluccio has claimed that his toothpaste caused the breathalyzer to record alcohol. Yes, that’s correct. “My toothpaste did it.” Galluccio issued a statement claiming that the breathalyzer recorded low-level alcohol readings as a result of his toothpaste, to wit: Colgate Total Whitening and Sensodyne Toothpaste. He said he arrived at that determination after consulting (read “desperately seeking”) a doctor (read” “any doctor”), who pointed out that these toothpastes both contain sorbitol, a sugar alcohol that has been reported to trigger positive breathalyzer results.

Full disclosure: This argument is not without legal precedent. It’s never been successful, but it has been tried. In 2006, a firefighter in Arkansas fought his punishment for testing positive on a breathalyzer by producing a chemist to testify that the mints he ate contained sorbitol, which “could have” caused his positive test result. The legal outcome? Thumbs down - and Galluccio failed to mention that in his most recent press release proclaiming his innocence on this latest offense.

As a Norfolk County, Massachusetts criminal defense attorney, in my professional opinion, this latest claim stretches credulity beyond the breaking point, and it poses an interesting professional question of when a defense lawyer should re-think accepting a client who clearly has a serious addiction problem, and who clearly poses a threat to public safety. Zealous defense of my clients is a trait I'm known for - and I'm proud of it. But at some point, a lawyer must make a decision in a case like this, a decision that will serve the client, protect the public, and allow the attorney to sleep at night.

In my next post, I’ll discuss what happens next legally – which will serve as a good backgrounder on probation violation hearings.

What I’m going to write about today will be of interest to not only Massachusetts OUI lawyers such as myself, but to anyone who drives in Massachusetts. Previously, on July 1 of this year, I blogged about a case that was handed down by the United States Supreme Court earlier this year. While I didn’t cite that case by name in that blog, it was Commonwealth v. Melendez-Diaz. In that ruling, the U.S. Supreme Court held that lab reports offered as evidence by prosecutors to prove the chemical composition of substances that it (the prosecution) claimed were illegal drugs, would in the future require the in-person testimony at trial, of the lab technician(s) who actually tested the substance. This ruling was substantial for persons accused of Massachusetts drug crimes, as prior to this ruling, the prosecution needed to introduce only a certificate from the State Police Crime Laboratory, showing that the substance tested was a certain drug.

From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost - the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.

Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.

Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don't call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)

This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.

In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.

Continue reading "Supreme Court Ruling on Drug Prosecutions Applied to Massachusetts OUI Case: Part 1 of 2" »

My apologies for my absence here recently – I’ve been sidelined with a bad cold. Here’s an item that will probably be appreciated mostly by lawyers (vs. lay persons,) but on a legal level, the issue is significant. It’s a decision by the state Supreme Judicial Court (SJC) that more clearly defines the legal element of “attempt” within the criminal law context.

Before reviewing this case, let me say that almost anyone reading about this case – in particular of the SJC’s decision to overturn this conviction – is going to be disgusted over the facts within the case. Regarding the facts of this case, I’m equally disgusted. But when considering the ruling, it’s critical to bear in mind the legal elements of the court’s decision.

Back in 2004, the Worcester, Massachusetts Police Department was conducting an undercover sting operation to root out Massachusetts sex offenders – particularly child sex offenders. Posing as a prostitute, an undercover female police officer met with one especially perverted, twisted individual by the name of Kerry Van Bell. Van Bell met the “prostitute” in a convenience store parking lot, where the undercover officer offered to make a 4 year-old girl available to him for sex. The undercover officer informed Bell, however, that the child was not with her in her car, and that Bell would have to follow her in his car to drive to where the child was located. Bell, while voicing his displeasure that he child was not readily available to him then and there, agreed to follow the undercover officer in her car, and agreed to pay $200 for the child upon arriving at the “destination.”. Upon exiting the store parking lot, police cruisers in waiting swarmed in on Bell, arresting him and charging him with attempted rape of a child (M.G.L. c.265, Sec. 13B -13B-3, and solicitation of sex for a fee (M.G.L. c. 272, Sec. 2-8.)

At trial, Van Bell was convicted of both “attempted rape of a child” and solicitation of a prostitute. He appealed on several grounds, arguing that there was insufficient evidence to convict him on the attempted rape charge. This is where the legalese comes in. You see, while the police, the prosecutor, you, me, and even the judge knew this sickening pervert fully intended to rape a (unknown to him, fictitious) 4 year-old child, the legal issue on appeal was, “Did the defendant come close enough to the charged act (attempted rape,) to warrant a guilty finding on that charge”? The answer was no.

The reason? The legal definition of “attempt.” It’s not the same as a lay person understands it to be. It’s far more surgical and legalistic. You see, an “attempt”, in the eyes of the law, must go beyond mere agreement to commit an unlawful act; it must exceed “preparation” to commit an unlawful act, and progress or mature into “perpetration”. In this case, the SJC majority found that this defendant – while he fully intended to commit the act – hadn’t yet undertaken steps to legally “attempt” the rape. Specifically, this required an “overt act” under the relevant statute – and the court’s majority found that “overt act” to be lacking here. Hence, the court reversed the “attempted rape” charge – but they did find Bell guilty on the charge of solicitation of sex for a fee.

Sounds unfair, doesn’t it? I wouldn’t blame you for feeling this way. But these legal principles and maxims exist for sound reasons. Once they start to slide to accommodate individual prosecution objectives, no matter how laudable those objectives, and how horrible the crime, justice will suffer in the long term.

As a Boston sexual offenses lawyer, I’ve seen my share of detestable crimes. But I’ve also seen my share of cases where prosecution should not have been brought in the first place. Remember, if people want the law to stand up for them, they need to stand up for the rule of law.

Here’s an interesting development that’s appropriate for the high school and college football season, and it underscores that the words “foul play” have as much to do with criminal law as they do with sports.

An Arlington, Massachusetts high school football player has been formally charged with criminal assault and battery, as the result of a “head-butt” he inflicted against an opposing team’s player. Arlington Catholic High School football player James LaShoto was arraigned this Friday in Cambridge District Court, where his lawyer entered a plea of not guilty on his behalf. Authorities say the 17-year-old LaShoto deliberately “head-butted” Abington High School player Daniel Curtin in his (Curtin's) head, after Curtin's own helmet was knocked off during a Sept. 19 2009 game. Curtin suffered a concussion as a result, and could not play football for 10 days due to medical concerns surrounding his head injury. Arlington Cathlolic High School suspended LaShoto for two games as a result of the incident. (Can someone say "slap on the wrist"?) His lawyer, Ronald Martignetti, said although the play was "dirty," it did not constitute a criminal act, and thus his client should not have been criminally charged.

An interesting question. Legally, criminal assault and battery occurs when a victim is placed in imminent apprehension of an un-consented to physical contact, and when some type of harm results from that contact (however minor the harm might be.) The legal issue that is going to determine whether or not this particular defendant should be found guilty of this charge, centers on two legal elements here – the elements of “intent” and “consent”. Specifically, intent on the part of the defendant, and consent on the part of the victim. In contact sports such as football, aggressive physical contact is unavoidably expected, and so are injuries. Players provide what is known as “implied consent” to contact of the type that would be normally expected and required within the context of the sporting activity. (The consent is “implied” by virtue of voluntarily participating in the sporting activity; hence, there is no need for players to execute written or “express” consent.)

One of two central questions in this case will be, did the defendant, LaShoto, specifically intend to inflict harm on the victim here – harm of the type that would not be expected, or otherwise legally excused, under these specific circumstances (i.e., a contact sport such as football)? Concomitantly, the second question is did the victim here, Curtin, give his consent to be touched or contacted in the manner that caused his injuries? We’ve all seen countless examples of players being carried off a field on a stretcher, after being injured in a game. So why has this youth been charged? Because while the victim here, through his very act of participating as a player, gave his implied consent for physical contact of the type inherent in this sport, neither he nor police authorities believe that he gave his consent for this specific type of physical contact, which caused his injuries. The defendant here is charged with intentionally head-butting the victim in the head, when the victim did not have his helmet on, and the defendant did have a helmet on. The prosecution's argument will almost certainly be that the defendant had the specific intent to engage in a type of physical contact that the victim had not consented to, and that the defendant also had the specific intent to inflict serious bodily harm on the victim. A judge or jury could infer the specific intent, primarily from the fact that the defendant head-butted the victim with the defendant's helmet on, knowing that the victim was not wearing a protective helmet.

The defense will likely argue that the victim impliedly "consented” to this type of bodily contact by playing in the game, and that the defendant’s actions did not constitute evidence of specific intent to cause bodily harm. If the prosecution does not advance the “specific intent” (to harm) theory, it may also avail itself of another prosecutorial argument known as “reckless disregard.” This approach would argue that even if the defendant did not have the specific intent to harm, he nonetheless acted with “reckless disregard” for the safety of the victim. As a former Special Assistant District Attorney and now a Norfolk County, Massachusetts assault and battery defense lawyer, I think a strong argument can be made that the defendant in this case possessed what is legally known as “specific intent” to inflict unconsented-to assault and battery on the victim, and that the victim did not grant implied consent for such physical contact. That doesn't mean this defendant will be convicted, but it will make for an interesting trial, if the matter is not disposed of through plea agreement.

LaShoto was released on personal recognizance. He is due back in court Dec. 21.

I've been traveling out of office for a couple of weeks, and I haven't posted anything for too long - my apologies to my loyal readers. Today, I want to send this brief message: I've been given a lot of good things in this life. I've had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less then we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: "When Wishes Are Few The Heart Is Happy." That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of "Buy, Get, Acquire." But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

My best wishes to all of you.

Thankfully,

Bill Kickham