Boston Criminal Attorney Blog

In my previous post, I discussed how Neil Entwistle’s attorneys, Elliot Weinstein and Stephanie Page, had conducted an extensive sit-down post-trial interview with Massachusetts Lawyers’ Weekly, which appeared in the July 14 2008 edition of Massachusetts Lawyers Weekly. Weinstein and Page said several things in that interview, and I’d like to respond here with a few facts. By way of full disclosure, I also submitted a Letter to The Editor to Lawyers Weekly, which was published in the August 4 2008 edition of Massachusetts Lawyers Weekly, citing some of the same points I will mention below. (However, due to editorial restrictions at Lawyers Weekly, that letter was capped at 1500 words, preventing a broader and more detailed discussion of the facts.)

Herewith follow excerpts of some of the more interesting points in the July 14 2008 Lawyers Weekly interview, and my responses to each of those points (Note: “MLW” refers to Massachusetts Lawyers Weekly):

Weinstein/Page Assertions in MLW: Referring to media analysts, Mr. Weinstein states: “Their comments build upon a cynical view of the law, the courts and lawyers …Their views and opinions showed a total disregard and disrespect for the basic principles of what our criminal courts are all about.”

My Response: This type of hyperbole strains credulity. First, I will remind both these lawyers: The commentators they made reference to, like myself, are or have been either prosecutors or criminal defense attorneys. Defending “the basic principles of what our criminal courts are all about,” is what we have devoted our professions to. Despite what they might think, Mr. Weinstein and Ms. Page are not the ‘white knights’ defending our criminal justice system, while the rest of us are its enemies.

Second, that Mr. Weinstein would accuse lawyer commentators of stating opinions publicly “because it would give them their 15 minutes of fame” would be laughable if it weren’t so hypocritical. Mr. Weinstein has on several occasions in the past done the very same thing, on cases where he has not been involved as counsel. Indeed, his own practice web site, under “Professional Activities,” identifies him as a “Media Analyst and Commentator.” Are people to assume that if the Boston Globe or a national media outlet called Mr. Weinstein and asked him to comment on a case in the media, criminal or civil, he would decline? Or that his commentary is noble while other lawyers are shameless ego-maniacs? Please.

Fact: Weinstein and Page went to quite some lengths in their MLW interview, to disparage what they perceived as excessive criticism of them and their trial strategy, by media legal analysts, myself included. The fact is, I defended these two lawyers in my media analysis of this case, on more than one occasion. In response to much public criticism aimed at the defense team for advancing the “Rachel Did It” murder-suicide theory in their closing argument, I defended these two attorneys in my blog posting dated June 25 2008, as follows: “Since the defense closed yesterday by advancing this theory, many people have expressed to me how "disgusted" they are that an attorney would offer such an unlikely defense, in the face of the overwhelming evidence in this case implicating the defendant. I understand their feelings, but only because I know that they don’t understand that the defense must do all that they are legally and ethically allowed to do, to defend their client. This is not “sleazy lawyering.” It’s zealous advocacy, and it’s expected of a good criminal defense lawyer.” (Bold emphasis original.)

I’ll discuss more in a third, and thankfully final, post on this subject later this week.

Will the detritus from the Entwistle case never cease? An interesting thing happened on the way to summer last month. I haven’t yet talked about it here, but for some time I’ve wanted to. Here’s the background: The July 14 2008 edition of Massachusetts Lawyers Weekly, the paper of record for the legal profession in Massachusetts, featured a front page, above-the-fold story headlined “Post-Trial, Entwistle Team Fires Back At Lawyers Who Offered Commentary.” In that feature story, which was written from a sit-down interview with both Elliot Weinstein and Stephanie Page (Entwistle’s lawyers,) Weinstein and Page railed on about how fellow lawyers who served as media commentators (like me) essentially had no business doing so, and were seemingly aligned against them and their client in that sad and tragic case. In the Lawyers Weekly story, I was specifically mentioned among other legal media analysts, as being “shameful” and “uninformed” in my media analysis of this case.

Actually, the precise language used by Weinstein and Page in that story was even more histrionic than just those two words offered above. Excerpts of some of their comments will follow in a later post, but for the immediate, let me ask: Will these two lawyers ever cease complaining? It really is rather pathetic, in and of itself. Here are two talented criminal defense attorneys, who apparently felt (and may possibly still feel) the need to carry on like two professional victims. When I first developed this blog, I wanted it to be about more than reporting news and developments in Massachusetts criminal law and criminal practice, important as those functions are. I also wanted this blog to be an honest approach to both the theory and practice of criminal law, to peel back the complicated layers and show what really goes on in day-to-day practice. As much as possible, I don’t want to varnish things in this blog.

In that vein, that means admitting when things have gone wrong in a given situation – whether by me, my colleagues, or anyone else. It also means doing the best I can, in the best way I know how, and not looking for excuses or scapegoats if things don't go my way. If I can do that, why can’t my colleagues Weinstein and Page? Why must they persist in whining and complaining when things here didn’t go their way? Why must they have pointed the finger of blame at others, effectively laying the cause for their defeat on other parties, instead of taking their licks, standing tall, and resolving to do the best they can with their appeal? Acting in the manner these two lawyers acted post-trial, not only diminishes their own reputations, it does not help the image of the average criminal defense attorney, either. I’m fully aware of how criminal defense attorneys can be perceived by many members of the general public, and very unfortunately, a lot of it isn’t flattering. Behavior like Weinstein's and Page' post trial behavior doesn’t help.

When many members of the public follow a high-profile trial like this, where the evidence against the defendant was overwhelming, they observe more than just televised proceedings and the verdict. When, after the defendant is convicted based on this overwhelming evidence, they watch the defendant’s attorneys stand in front of the press and state that the judge was unfair in some of her rulings (on the venue selection, at least,); that the jurors were unfair, that the media was unfair and biased; and that even some of their colleagues at the bar who served as media analysts were unfair to them in their commentary and analysis, this damages the images and reputations of all criminal defense attorneys. These two attorneys would have stood much taller had they simply, after the verdict, stated something along the general lines of “We disagree with the jury’s verdict, but we will proceed immediately with our appeal, with the same zeal with which we tried this case before this jury. We will argue our legal issues before the Supreme Judicial Court, and have no further comment.”

Unfortunately, that’s not what happened. More on what did happen, in my next post.

In my last post, I talked about the Clark Rockefeller case, closing with the question of what, if any crimes Rockefeller might be charged with in this case.

Given the incredible, yanked-from-Hollywood story that seems to be this man’s life for the past thirty years, complete with multiple identities and con jobs throughout his long trail across the United States, it would seem to many people that he would face a long list of criminal charges. Now that the FBI, Los Angeles and Boston police investigators have all confirmed that “Clark Rockefeller” is in fact Christian Karl Gerhartsreiter, born in Germany, “Rockefeller” (I will continue to refer to him under this name until I verify FBI reports,) poses an appealing target for prosecutors, most importantly because he remains a ‘person of interest’ in the disappearance and suspected murders of Jonathan and Linda Sohus of San Marino, California in August 1985. The Sohus’ were Rockefeller’s landlords at the time. Shortly after the Sohus’ disappearance, Rockefeller had dug a large pit in the backyard of the Sohus’ property (where Rockefeller lived in the Sohus’ renovated garage.) At the time, Rockefeller told at least one person he had dug the pit due to “plumbing problems.” Nine years later, in 1994, the then owners of the property were excavating the backyard as part of work on an in-ground swimming pool, and workers discovered human remains (of a man) stuffed into a bag. The remains were never definitively identified.

So what happens now? Can Rockefeller be charged with the murder of at least Jonathan Sohus? That’s not as easily said as done. First, let me explain the charges Rockefeller can be, and is now, charged with in Massachusetts. At present, those charges are: 1) Felony parental kidnapping; 2) Assault; 3) Assault and battery with a dangerous weapon. These charges all stem from Rockefeller’s forcible abduction of his daughter Reigh from Boston Common in July, during a supervised custodial visit of his daughter with a social worker from the Massachusetts Department of Social Services. The most serious of those charges, the count for felony parental kidnapping, carries a penalty of up to twenty years in state prison. Rockefeller remains in custody in the Suffolk County House of Correction in Boston pending trial on those charges, so he isn’t going anywhere for the time being.

But what of his living a life of aliases for the past thirty years, and what of the highly suggestive evidence implicating him in the disappearance and presumed murders of Jonathan and Linda Sohus? Bringing criminal charges in these two areas is much more difficult. The reasons? First, as to the living a life under various aliases: While it may surprise you, using an alias is not a crime in most states. Unless a clear intent to defraud (usually in a business or commercial setting,) can be demonstrated on the part of the part of the person using an alias, the act of using an alias is not, in and of itself, a crime. Secondly, as to the issue of the disappearance and presumed murders of Jonathan and Linda Sohus, bringing murder charges and successfully obtaining a conviction against Rockefeller – based on the evidence that exists as of today’s post – would be extremely difficult. Reason Number 1) As of today’s date, no eyewitnesses to the Sohus’ disappearance or presumed murders have come forward. 2) Successfully identifying the buried remains discovered in the Sohus’ former backyard, even using DNA analysis, may not be possible, due in large measure to the fact that Jonathan Sohus was adopted, and no living relatives have yet been identified to come forward to avail themselves of DNA testing. 3) Much of the evidence gathered in the 1985 investigation of the Sohus’ disappearance has been reportedly lost or destroyed.

As of this post, the evidence linking Rockefeller to the Sohus’ disappearance, while certainly suggestive, is entirely circumstantial. It is nowhere near the level or quality of evidence required to obtain a conviction on murder charges. That may be highly frustrating to police investigators, but it is the legal reality.

Stay tuned for more developments later on this interesting case.

The tangled story of the Boston man who claims to be known as “Clark Rockefeller”, continues to fascinate. This is quite a story. For those of you who may not know, Rockefeller first splashed onto the front pages (at least in Boston) when he allegedly kidnapped his young daughter, Reigh, while on a supervised custodial visit with her in July. The kidnapping caper itself was pretty creative: Rockefeller, lying to a limousine driver about wanting to safeguard his daughter from a person he recently concluded was a danger to her, arranged to have the limousine driver show up at a predetermined time at a certain date on Boston Common, then pushed aside a Department of Social Services (DSS) social worker who was accompanying his visit with his daughter, (the person he told the limo driver he was allegedly trying to protect her from,) threw his daughter into the limo, and had the driver speed away. That set off a massive, multi-state manhunt for Rockefeller and his daughter, complete with televised pleas for the girl’s safe return by her mother. Rockefeller, with his daughter, was apprehended by police in Baltimore, Maryland a few days later.

But that was just the beginning, and it makes the kidnapping caper on Boston Common seem very small by comparison. As part of the manhunt to locate Rockefeller, police discovered a fingerprint on an old application for an SEC brokerage license, under another name, which matched Rockefeller’s fingerprint. Subsequent investigation has uncovered that “Rockefeller” has apparently operated under over at least twenty five years under various aliases, including: A German student named "Christian Karl Gerhartsreiter", who lived with families in Connecticut until he wore out their hospitality; "Christopher Chichester", which he allegedly used while living in San Marino, California; "Christopher Crow", which he allegedly used while working as a bond trader in the late 1980’s in New York (where he reportedly never closed a deal,) and "Clark Rockefeller" in Boston. At almost all times, wherever he was and whatever identity he assumed, Rockefeller allegedly painted himself as either a millionaire or the son of European royalty. Now, he is not only behind bars on multiple charges related to the alleged kidnapping of his own daughter, but his name is front and center in a long-unsolved mystery from California, allegedly involving the murder of a young couple who were his landlords in San Marino, California, in the mid-1980’s.

What crimes, if any, might Rockefeller be guilty of? I’ll address that in my next post.

The trial of a New Hampshire man accused of murdering two men as part of an alleged love triangle is moving forward in a courtroom in Middlesex Superior Court in Woburn, with a few interesting twists.

Sean Fitzpatrick is accused of murdering Michael Zammitti, the husband of a woman named Michele Zammitti, as part of what prosecutors say was his plan to ‘eliminate’ Mr. Zammitti so that Fitzpatrick and Michele could be together. According to prosecutors, Michele Zammmitti, who was having an affair with Fitzpatrick, had reportedly told Fitzpatrick that she planned to return to her husband, and Fitzpatrick was allegedly desperate to stop that from happening. Not only is Fitzpatrick accused of murdering Michael Zammitti, he is also accused of murdering an alleged witness to that murder, a co-worker of Michael Zammitti’s by the name of Chester Roberts. Both men were shot to death on March 16 2006, outside their workplace.

A couple of interesting developments, so far in the trial: The prosecution contends that Fitzpatrick acted alone, without the knowledge of Michele Zammitti. The prosecution also contends that Michele Zammitti broke off the affair with Fitzpatrick “several weeks” before the murders – and Michele Zammitti has testified on the witness stand to this direct effect. However, Fitzpatrick’s defense attorney, Randy Gioia, successfully brought out, under cross examination of Michele, that in fact she continued to have contact with Fitzgerald right up until the weekend prior to the killings. In fact, according to her testimony under cross examination, Michele had engaged in more than thirty phone calls with Fitzpatrick between the time she claimed to have severed the affair with him, and the time of the killings. That will be an interesting point for the jury to consider when weighing this key witness’ credibility. Is she telling the truth, or is she cooperating with the prosecution to avoid charges against her, in the hope the prosecution can catch the ‘bigger fish’ here? It’s uncertain. Neither I nor any other observers can say at this point.

Yet, it’s certainly cause for question as to how the prosecution’s key witness, an admitted adulterer (which goes to that person’s propensity for honesty or veracity,) can claim to have ‘broken off’ an illicit affair with someone at a given point in time, then later admit under oath to having had over thirty separate phone calls with that person, afterward. That reason for question is especially critical when the witness is one of the two people involved in that illicit affair, who is not charged with the murder of the husband she was cheating on. Does this mean Michele Zammitti is lying? Not necessarily, and there has been no direct evidence of that, yet. But it does mean that this jury better be listening carefully. As I often say, “There’s always a story behind the story.”

More on this trial later.

Summer went and interrupted again my writing again. Like everyone, I need to recharge my batteries, and as I don’t ski in winter or go hiking in spring, summer is my time of year. When it hits, I usually head south to Cape Cod whenever my schedule allows, and (so far, anyway,) my computer doesn’t come with me (though I’m sure that will change in time.) My apologies to any of my readers who’ve missed my writing.

I thought that with all the negative news going on these days, I’d highlight some positive news in the field of criminal law in Massachusetts. Many of my readers are familiar with the story of how a federal judge in Boston ruled in 2007 that the FBI, over forty years ago, framed four men for a notorious 1965 gangland murder, which none of them committed. The case came to be known as the “Teddy Deegan Murder Case”, after the victim of that March 1965 slaying. That 2007 court ruling, by United States District Court judge Nancy Gertner, included a damages award that ordered the U.S. government to pay a total of $101.7 million to the four men wrongfully convicted, two of whom are still alive, and two who have passed away. The two surviving former prisoners are Peter J. Limone and Joseph Salvati. The two men who have passed away are Henry Tameleo and Louis Greco, who died while still in prison. Greco is survived by his wife, Roberta Werner of Boynton Beach, Florida, who is the executrix of his estate.

In 2004, Massachusetts passed a state statute that allows for a maximum payment of $500,000 to a person wrongfully convicted by the Commonwealth. While this law does not prevent such individuals from seeking or collecting state damages even if they have been awarded damages in federal court, the attorney for Mrs. Greco has entered into an agreement with Massachusetts Attorney General Martha Coakley that she will repay the state the full $500,000 if and when the federal government ever pays at least that much of the judgment ordered by judge Gertner. (The federal government has not yet paid the judgments, as the government has appealed judge Gertner’s ruling.)

Massachusetts is among approximately 24 states that have passed laws compensating the wrongfully convicted, and since the Massachusetts law was passed in 2004, approximately 25 people have filed for this type of compensation with the state attorney general’s office. But what makes this particular payment unusual, is that this is the first time the state of Massachusetts has ever made such a payment to the estate of someone wrongfully convicted (i.e., after that person has died,) rather than to the wrongfully convicted person himself. It is thought that given the severity of this case, the harm done to the families of these men, and the age of Louis Greco’s widow, Attorney General Coakley’s office did not object to the state making this payment even in the face of the federal award. So far, the family of Henry Tameleo has not filed a claim with the state Attorney General’ office.

This case was made famous, in large part due to the investigative journalism and hard work of Dan Rea, a longtime reporter for WBZ-TV – Boston (CBS), who brought to the public eye the deliberate framing of these four men, and the resulting cover-up by FBI agents in the 1960’s. The story was covered nationally, including CBS’ 60 Minutes, Ted Koppel’s Nightline, and national press. Rea, not coincidentally, is a (non-practicing) lawyer in Massachusetts.

While horribly and irreversibly delayed, in the end, perhaps, justice wasn’t denied. Let’s hope so.