Boston Criminal Attorney Blog

Paul Shanley, a former catholic priest with the Archdiocese of Boston who was convicted in 2005 of the repeated rape of an altar boy in the 1980’s, has filed a Motion for a New Trial, challenging the validity of the evidence used to convict him in 2005, reports the Boston Globe in a story published today. Shanley is now serving a 12 to 15 year sentence for that conviction. At his trial in 2005, Shanley was convicted largely on the strength of the victim’s testimony, which was based on memories that the victim testified were previously suppressed, but involuntarily recovered when Shanley’s arrest on charges of previously abusing other altar boys was widely publicized in the media. At that point, the victim came forward to police, claiming memories of his own abuse at Shanley’s hands came rushing back to him.

Shanley, 77, now claims in his motion for a new trial that this testimony by the victim was unreliable, and should not have been admitted into evidence against him. His motion claims that his prior lawyer should have presented evidence that the theory of repressed memories is not unanimously accepted in the scientific community, but rather is challenged by some medical professionals. The District Attorney’s office that convicted Shanley says his motion is baseless, and that the concept of suppressed memories has achieved more than sufficient scientific and legal credibility.

Hence, the question now is, should Shanley be granted a new trial? I think not. It’s important to remember, Shanley’s trial was a criminal trial – not a civil one where anyone stood to gain any money or financial damages. There exists no credible reason why someone such as the victim in this case would place himself front and center in such a case, and put himself through the ordeal of testifying publicly at trial about extremely traumatic events, unless he was telling the truth. This victim stood little to gain in this trial by fabricating his testimony. Further, Shanley was initially arrested because several other men, now in their 20’s and 30’s, came forward after the clergy sexual abuse scandal first broke in Boston, to report that they, too, were abused by Shanley. It was only due to evidentiary technicalities relating to the statute of limitations that prevented charges being brought against Shanley based those other allegations. Shanley was known far and wide as a “street priest” in the 1970’s and 80’s, “ministering” to young boys and homosexuals. Far from “ministering”, it is now known he used his authority as a priest to prey on these boys and young gay men, many of whom felt ostracized by their friends and family to their homosexuality. As I said, several other men have alleged he abused them also.

To grant this person a new trial based on this particular motion is disingenuous, and lacks legal merit. Shanley’s motion should be denied forthwith, and he should remain exactly where he is.

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Posted In: Sex Offenses

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My previous post on this topic talked about what mandatory minimum criminal sentencing is all about. Now I’ll speak to why it’s a bad idea. The principal reason advanced for enacting these kinds of law is deterrence: Make sure that no lenient (read: liberal) judge is allowed to reduce a sentence at all for certain kinds of crimes: The reasoning: “Tie the judges’ hands, and force them to impose the harshest of sentences – that will deter people from committing these crimes.” The problem is, study after study has shown that enactment of mandatory minimum sentences for most crimes does not deter the incidence of those crimes. It just fills up our prisons and jails. Further, a great deal of these types of sentencing laws apply to certain types of drug crimes – and strict, mandatory minimum sentences for these offenses are rarely justified. All they do is commit a defendant to a lengthy prison sentence, at taxpayers’ expense; they do nothing to rehabilitate the offender or offer him/her a “better way” to make money; and what comes out of prison years later is a hardened, uneducated, violent person – who is almost certain to offend again, and repeat the cycle all over again.

As I mentioned in my previous post on this subject, attorney David W. White Jr., President of the Massachusetts Bar Association, made this argument very well in a recent piece in The Boston Globe, "Fixing Our Criminal Sentencing System", on this subject. He pointed out that many such strict minimum sentences apply to any illegal drug transactions occurring within 1000 feet of a school. The obvious (and worthwhile) goal of this legislation was to deter selling or dealing drugs to schoolchildren. The only problem? It is common for many schools to be located in many urban areas in Massachusetts. Many offenders arrested for buying or selling illegal drugs – even small amounts of marijuana – are subjected to such mandatory sentencing regardless of whether any schoolchildren were involved – because in urban areas, a school is often less than 1000 feet away from most heavily trafficked urban locations. The result? An offender could buy or sell a small amount of an illegal drug – for personal, recreational use only – and face a mandatory two years in jail, no questions asked. That sound heard when the jail door closes, is one more life down the drain, one more violent criminal put in training behind bars, and one more bill we as taxpayers have to pay. Smart judicial policy? Hardly. A better way out for such offenses is mandatory drug recovery programs, strict probationary requirements, and vocational training to actively employ offenders in the workplace.

Sometimes, “lock ‘em up and throw away the key” is smart policy. In this case, it isn’t.

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Posted In: Mandatory Sentencing

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

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

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

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

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Posted In: Mandatory Sentencing

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

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

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

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

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

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

Have we learned anything since then?

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

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

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

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

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

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Posted In: Murder

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

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

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

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

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

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Posted In: Murder

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