December 18, 2014

First Circuit Court of Appeals Restores Sanity To Kosilek Case

Readers of this blog know that I’ve blogged previously on the twisted subject of Robert Kosilek, and his multi-year legal battles with the Commonwealth of Massachusetts, more specifically with the Massachusetts Department of Corrections. Kosilek, of course, is the (now famous, due to his legal battles) psychotic murderer, who killed his wife in 1990, then dumped her body in a trash dumpster. At trial, he was found guilty of murder in the first degree and sentenced to life in prison without the possibility of parole.

However, all that time to think about things, brought a ‘revelation’ to this esteemed guest of the Commonwealth: To wit, that he wasn’t Robert Kosilek, he was really a woman – Michelle Kosilek. And he wanted something “done” about that. And he wanted the taxpayers to pay for that something – specifically, ‘sex reassignment surgery’ otherwise known as a sex change operation – to turn Robert into Michelle. The Massachusetts DOC summarily rejected this request, at which point Kosilek sued the DOC – and, stunningly, won in lower court decisions. In 2012, much of the case seemed closed in Kosilek’s favor as U.S. District Court of Massachusetts judge Mark Wolf ruled in Kosilek’s favor in 2012 – ordering the Commonwealth of Massachusetts (read: its taxpayers,) to provide and pay for a sex change operation for Kosilek. What was judge Wolf’s legal reasoning? That to deprive this insane murderer a sex change operation, would constitute “cruel and unusual punishment,” in violation of the Eighth Amendment to the U.S. Constitution.

As a Boston, Massachusetts criminal defense attorney, I was shocked at that contorted vacancy of legal reasoning. The Eighth Amendment’s ban on cruel & unusual punishment was meant to ban twisted and medieval methods of punishment and torture such as beheadings, burning people at the stake, drawing & quartering prisoners, floggings, and similar. That a federal judge could equate the state’s refusal to provide a psychotic, convicted murderer’s demand for a sex change operation, with “cruel and unusual punishment,” is, in plain English, downright scary.

Undeterred, the state appealed the decision to the U.S. First Circuit Court of Appeals, and this past January (2014,) the insanity continued when a three-judge panel of the Appeals Court upheld Wolf’s decision. What this showed was not only that appeals to the court had lost, but that so had appeals to sanity. Common sense seemed lost in liberal judicial rulings. But valiantly and admirably, the state then asked for a full bench review, with all five judges that sit on the court hearing the case (this is legally known as an “en banc” review.)

Thankfully, both sound legal reasoning and sanity finally prevailed which led to Tuesday’s reversal. Importantly, the full court noted that Wolf had inappropriately substituted his own judgment for doctors involved in the case, who did not unanimously agree that the surgery is the only acceptable solution for the Kosilek’s ‘condition,’ and his resulting ‘depression.’ Further, the court noted that Wolf “circumvent[ed] the deference that is owed to prison administrators’’ under federal laws when addressing the issue of the safety of prison inmates.

I also practice in courts outside of Boston, and as a Norfolk County criminal defense lawyer, I hope that this judicial restoration of sanity to legal reasoning, will provide hope for those who have lost hope in our judicial system. Because it is laughable, legally unsupportable decisions like judge Wolf's, which cause many people to wonder what has happened to the courts and the judicial system in this country.

But Kosilek and his liberal supporters probably won’t stop, even now. Because there’s one more appellate avenue: The U.S. Supreme Court – and you can be sure this case will be appealed to that Last Legal Word. If the court were to agree to hear the case, in my professional opinion all legal bets would be off: That court is packed with liberals, like Sonia Sotomayor and Elena Kagan.

December 5, 2014

Bill Cosby Rape Allegations: How To Respond - Legally?

More than a few people have asked me over the past ten days or so, what I think of the rape allegations being made against actor Bill Cosby, and what I think should be done about them.

This is a good question, because several of the accusations involve a mix of factors that can make a successful prosecution in this type of case very difficult. Those factors include the following:

• A lack of credible witnesses.
• A lack of forensic (scientific) evidence, in the form of semen and other bodily fluids, which are collected as part of a “rape kit” that almost all hospital Emergency Departments and Primary Care doctors use when an allegation of rape has been made. This includes an examination of the orifices (vagina, mouth, anus) that have allegedly been penetrated, together with tissue samples from the affected areas.
• The absence of a SAIN (Sexual Assault Intervention Network) Interview. This is a law enforcement protocol that allows for one police interview of the alleged victim to be shared across several law enforcement agencies (the investigating Police Department, the District Attorney’s Office, the State Police, the Medical Examiner’s Office, and if necessary federal agencies such as the FBI and ICE (Immigrations & Customs Enforcement.) This protocol documents the results of a trained police officer’s interview with the alleged victim, and spares the alleged victim from the need to be interviewed multiple times by multiple law enforcement agencies and personnel.
• A lack of photographic evidence, either of the scene of the alleged crime or of the victim’s body (see above.)
• And most importantly, the expiration of most Statutes of Limitations applicable where the alleged sexual assaults and rapes took place. It is my understanding that the Cosby alleged sexual assaults took place in several states, including New York. While each state has its own statutory period beyond which a prosecution for rape and sexual assault cannot be brought forward, most states have 15- to 20- year statutory periods of limitations.

As of the date of this post, it’s my understanding that most of these allegations from the women that have come forward so far, involve sexual assaults that allegedly took place more than 20 years ago. If this is accurate, then in my professional opinion as a Boston sex assault attorney that successful prosecution of these cases is going to be extremely difficult. That doesn't mean Mr. Cosby is factually innocent of these allegations. In fact, I think that it’s highly unlikely that these several women have all come forward with these almost identical accusations, and that none of them is telling the truth. The fact that I am a Massachusetts sex charges lawyer, doesn't mean that I can’t admit that ‘where there’s smoke, there’s fire.’ And it certainly doesn't mean that Mr. Cosby isn't going to need top-flight legal talent representing him – whether in the court of public opinion or a court of law. But as of right now, I think most of the damage that Cosby is going to suffer is going to be reputational and financial.

These allegations, and the prosecutorial difficulties raised by the statutes of limitations involved, have raised new debates about whether states should abolish or revise statutes of limitations in rape and other sexual assault cases. I’ve been a Norfolk County rape defense lawyer a long time, and I’ve seen a lot of these cases. I think that extreme care should be used before tampering with these statutes. They were created for good reasons: Massachusetts rape and sexual assault accusations, like those anywhere, can devastate an innocent person’s life. They are a “special breed” of crimes, and are the type that should be investigated and resolved as promptly as possible, not left open to accuse someone of, ‘forever.’

November 27, 2014

Massachusetts Theft Crimes: How Not To Be A Victim During Christmas Season

It’s the holiday season, and it’s gotten here faster than you can say, “Black Friday.”

Shopping malls – and their parking lots – are famous for being places where all types of crimes can occur – everything from auto thefts, to car-jackings, to thefts of shopping bags filled with purchases, to assault and battery. As a Massachusetts larceny crimes lawyer, I've seen more than my share of Massachusetts larceny and Massachusetts robbery charges, and I have some tips to help everyone stay safe at the mall when shopping during the Christmas season.

1). Try to park in a well-lit area. Of course, most shoppers compete for parking spaces during the holidays, and feel lucky to find a space anywhere. But try to find a spot near the store entrances, or in a well-traveled area that looks busy with people – and not in a deserted area in the back of the mall, or in the dark. If you think you might forget your location, use your smartphone to take a shot of your car and a landmark that it’s near.

2). Lock your car. It seems so obvious, but many automobile thefts can be avoided by simply making sure you lock your car. And ALWAYS look in the back seat, first: This is where someone would hide if he or she gained entry into your car. It's a good idea to also look underneath your car before you re-enter it, as thieves and assailants have been known to hide underneath, then roll out suddenly and accost the victim.

3). Also, when heading back to your car – take note if a large van or SUV has parked close to it. Countless people have been attacked in parking lots, while parked next to large vehicles that make it easy for thieves to prey on you, from the side, or from behind. The next thing you know, you could become a victim of a Massachusetts assault and battery.

For the supreme confidence boost that comes from knowing that you can successfully defend yourself, I recommend learning Combat Sambo – a form of Russian martial arts without weapons, which is taught in Needham, Mass., and Newton, Mass., by Grand Master Michael Galperin. (I, in fact, am one of his pupils.) Knowing how to protect yourself in all situations is an asset and a skill that everyone should have. Just knowing that you can successfully put an attacker in something so simple as a wrist lock -- is a great skill and confidence-booster.

4). After exiting the store and heading to your car, especially at night, have your keys handy – so you can quickly get into your car. If need be you can always use your keys as a weapon if you are attacked.

5). Store your purchases in your trunk – along with your purse if you are a woman. The phrase “Out of sight, out of mind” is a good one, because no one will be tempted if they can’t see your valuables.

6). Do you ever exit the stores, in crowded malls such as Legacy Place in Dedham, the South Shore Mall in Braintree or Wrentham Premium Village Outlets, to put holiday purchases in your car – and then head back to the stores to shop some more? Thieves love to see people doing this, because it lets them know they have plenty of time in which they can steal. Don't run back & forth putting items into your car: It's a red flag for thieves.

7). Do your shopping during daylight hours – so you’re not the last person, alone, in the parking lot at 11:00PM.

Do you have other safety tips for shoppers in malls during the holiday season? Let me know by emailing me at Bill@kickhamlegal.com.

In the meantime, stay safe.

November 1, 2014

Massachusetts Haunted Houses: You Should Be Spooked

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

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

Live-actor displays involving:

* Sadism.

* Serial killers.

* Bondage and gagging.

* Scenes depicting torture.

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

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

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

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

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

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

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

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


October 3, 2014

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

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

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

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

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

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

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

October 2, 2014

Should Massachusetts College Have Reported Alleged Rapes?

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

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

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

September 13, 2014

HE MASSACHUSETTS SEX OFFENSE OF OPEN & GROSS CONDUCT/LEWD & LASCIVIOUS BEHAVIOR: EXACTLY WHAT IS THIS? – PART TWO OF TWO

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

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

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

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

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

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

September 6, 2014

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

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

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

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

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

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

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

September 2, 2014

Massachusetts Gun Laws Now Tougher

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

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

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

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

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

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

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

►Stringent gun licensing requirements

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

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

August 27, 2014

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

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

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

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

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

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

August 8, 2014

Massachusetts Domestic Violence Reform Bill: Not Perfect, But Wise

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

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

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

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

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

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

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

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

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

August 1, 2014

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

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

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

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

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

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

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

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

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

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