Boston Criminal Attorney Blog

In my previous post, I discussed the arrest last week on rape charges of a recent Massachusetts prison parolee, one Richard Flowers, released two months ago in July. While this year isn't an election year in Massachusetts for statewide offices such as Governor, you can be assured that if it were, this case would be the "Willie Horton" of 2008. For readers who may not know, Willie Horton was a Massachusetts prison parolee who went on to kill someone after being paroled in 1988. The case was used by then-President George H.W. Bush, in the 1988 Presiential election race, as a centerpeice argument against voting for Massachusetts Governor Michael Dukakis, who came to embody charges of liberal prison parole policies.

Did the Parole Board make a mistake in this matter? Should Flowers’ application for parole have been granted? Critics of his release will probably argue that his release is an example of a system gone bad; that too many violent convicts are released on parole, when they should be kept in prison to serve their full sentence. In essence, that the corrections and parole system are too lax. But was that the case here? It doesn’t appear that way. To begin with, it needs to be understood that when anyone has been convicted and sentenced for a crime, that person cannot normally be held beyond the longest range of that sentence. For example, if the sentence is for 8 to 10 years in state prison, that convict cannot, under typical circumstances, be held for longer than ten years. Such prisoners cannot usually be held indefinitely. Secondly, predicting the behavior of any one individual, is often a complex process, taking into consideration a number of different factors, psychological assessments and behavioral history. Using all those tools, parole officials make the best decision they can, as human beings, to assess the likelihood of recidivism or future criminal behavior of the applicant. That is all anyone can do.

In this case, Flowers had served 12 of 12 to 15 years for his robbery conviction in 1995. In those 12 years, he received only a few minor disciplinary infractions. He had no history of violent behavior in prison. He had no history of sexual violence either in prison, or outside of prison. The Parole Board appeared to expended a considerable amount of time and reflection, between the time it first began reviewing Flowers’ application for parole in August 2007, and when the Board finally granted his release with the conditions that he wear an electronic monitoring bracelet, stay indoors from 10:00 PM to 6:00 AM, and report for mandatory alcohol and drug testing, in May 2008. Those conditions, in my opinion, were prudent and reasonable, given Flowers’ non-violent history for the previous 13 years in prison, as well as his criminal history preceding that prison sentence.

Doubtless the victim in this case, and many people, are enraged by this incident – and they want “something done”. But what? Refuse to ever release all prisoners on parole? Our criminal justice system is designed to offer prisoners the opportunity to rehabilitate themselves in prison, and show that they can change for the better. If you or someone you cared about were convicted of a crime, would you insist that no opportunity for parole ever be allowed? Most people don’t understand the various realities that guide and govern these situations. One of these realities – though it should not be the controlling one – is the reality of prison overpopulation in Massachusetts. The simple fact is, more people are convicted of crimes carrying prison sentences each year, than there is space to house those prisoners. A great deal of this problem has stemmed from mandatory minimum sentencing (mostly involving non-violent and relatively minor drug offenses,) which I’ve blogged about before and which has resulted in thousands of persons going to prison every year in this state, who should not be taking up space needed for violent offenders. While some might argue "that’s another debate", the fact is, prison overcrowding is central to why parole officials are under such presuure to create more space for violent offenders..

Convicts cannot normally be held forever after they have served their sentences – absent clear and compelling evidence that they pose a threat to a particular person or the public in general. Yes, we could insist that convicts serve the maximum of their terms, not less, and in some cases, they do. But the vast majority of criminal prison sentences provide a range of terms, minimum to maximum. Once the minimum is served, it is up to corrections officials and the state Parole Board to determine if the applicant is fit for release – and that is an imperfect science, at best. When an applicant who has been a problem prisoner, exhibited violence and shown little concern for his or her rehabilitation applies for parole, it is relatively easy matter to deny the application. But when, as here, the applicant was essentially a model prisoner, incurring only a few slight administrative violations, and had exhibited efforts to rehabilitate himself while in prison, is it unreasonable to grant him early release with the conditions that he wear an electronic monitoring device and be tested regularly for alcohol and drug use? I don’t think so.

This was a terrible, but I believe unpredictable, result here. To quote a spokesman for Suffolk County District Attorney Daniel Conley who was quoted in a Boston Globe story on this arrest: “It is appalling when (a crime like this) is committed. But there is nothing to suggest that it could have been avoided by any means other than the defendant’s own restraint.” There appears to be no indication that either Massachusetts state prison or Parole Board officials overlooked any signs that Flowers continued to pose a threat to the public. This incident should serve to do two things: 1) Remind advocates of mandatory minimum sentencing for non-violent offenses, that every time a non-violent offender is sentenced to prison, that person takes up the space needed to house truly violent offenders, and resultantly increases the pressure on Parole Board officials to release applicants to create more prison space. 2) Remind state Parole Board officials to ever more carefully probe the psychological makeup and present condition of parole applicants, but seeing into someone’s mind is a complex, and often impossible, task. Prison and parole officials are only human. They cannot see into the future, much less a person’s deepest, darkest thoughts. We are all only human.

An alleged rape and beating of a 25 year-old woman at Boston’s Back Bay Commuter Rail MBTA station is sure to raise the issue of releasing parole convicts sentenced for violent crimes, as well as raise questions of what, if anything, might be done in the future to predict violent behavior among parole applicants.

Richard Flowers, 48, of Roxbury, Massachusetts, was arrested Saturday night, September 6th and charged with assault and battery and rape. Police charge that Flowers approached a woman in a stairwell the Back Bay MBTA Commuter Rail station Friday night, September 5th, initially asking her for directions, then brandishing a gun and demanding money. When she told Flowers she hold only a few dollars, he allegedly dragged her to another stairwell, waving away witnesses who asked if everything was OK. According to the police report, when alone in the stairwell, Flowers ordered the victim to disrobe, then raped and beat her. The report states that after the attack, the victim was able to kick the gun that Flowers had placed on the floor during the attack, down a stairwell. As Flowers scrambled for the gun, the victim grabbed her dress and ran away screaming for help. By that time, witnesses who had earlier seen Flowers pulling the victim into a stairwell had already called 911, and police arrived shortly thereafter. The victim was able to provide police with a detailed description of her attacker, and based on that description, police arrested Flowers at his apartment on Saturday night, charging him with rape, and assault and battery.

The Massachusetts Parole Board and the Department of Correction will likely come under some fire for this incident, from various quarters, most likely victims’ rights groups. The central question: Was this predictable? Was Flowers released too early? Should his application for parole been more carefully screened? Could anything reasonably have been done to prevent this incident? Critics of parole in general, and of the Massachusetts Parole Board in particular, may believe there is much to criticize here, beginning with the fact that Flowers has a long criminal record, dating back to 1983. His offenses include a conviction of robbery in 1983, with a sentence of four to six years in state prison for that offense; a 1988 conviction for breaking and entering a motor vehicle with intent to commit a felony, for which he was sentenced to six to eight years. In 1994, he was charged with stealing audio equipment from a church in Tewksbury. In 1995, he was charged with robbery of a jewelry store in Cambridge, and was sentenced to 12 to 15 years in state prison.

In August of 2007, the Massachusetts Parole Board began reviewing Flowers’ application for parole, and recorded generally positive comments, including “Subject has worked hard at his rehabilitation and appears ready for community supervision.” At that time, however, the Board withheld final decision on Flowers' application. Three months later, Flowers was disciplined for minor prison infractions, but there were no violent offenses in any of his prison history. In May of 2008, the Board delayed a vote on his application, but two months later in July granted his release on parole because there had been no more prison disciplinary violations, noting “he accepts responsibility for his actions.” Flowers was ordered stay at home between the hours of 10:00PM and 6:00AM, wearing an electronic monitoring device and be tested regularly for alcohol and drug use. If he violated any of those conditions, he could be returned to prison.

More discussion of this case, in my next post.

Continuing my discussion of Elliot Weinstein and Stephanie Page’s complaints of legal media analysts’ commentaries of the Entwistle trial, from my previous post:

Fact: On the day the verdict was delivered, talk radio was abuzz with news of the verdict, especially WRKO-680AM/Boston. Almost all callers to the Howie Carr Show (the flagship program on that station,) that day were in strong support of Entwistle’s conviction, and overwhelmingly critical and disparaging (to say the least) of the defense team. I called in on the air to defend the criminal justice system, and the performance of these two lawyers in particular, stressing that criminal defense lawyers are ethically bound to zealously defend their clients. This, too, apparently escaped notice by Weinstein or Page in their Massachusetts Lawyers Weekly, (“MLW”) interview of 7/14/08. On the evening that the verdict was delivered, while a guest on WBZ-AM 1030’s “Nightside With Dan Rea”, (a syndicated program broadcast in multiple states) I again defended these attorneys, advising listeners that constitutionally, the defense is never required to put on a case. This too seemed to escape notice or comment by Weinstein or Page.

Fact: On June 24 2008, I was asked by a Boston Herald reporter if I thought the fact that the jury had not yet returned a verdict, bode well for either the prosecution or defense. In that Boston Herald story published June 25, I indicated the jury could go either way, and stated: “They have a man’s life at stake. They hopefully will be methodical.” This, too, apparently escaped notice by both these attorneys. What didn’t escape their notice, however, was a piece in the Boston Herald the previous day, on June 24 - and that’s where things got interesting. In responding to a reporter’s question on whether I thought the defense’s strategy to not call Entwistle as a witness was a wise decision or not, I said that it was wise, and opined, ”One of Neil Entwistle’s worst enemies in this trial has been has own mouth. He’s not insane, he’s just narcissistic.”

I made that comment based upon a number of patently conflicting statements Entwistle made to state police investigators both before and after his arrest, regarding his activities surrounding the murder. These conflicting statements are a matter of fact, they speak for themselves as to how much they would have harmed Entwistle as a witness, and I stand by my comments. Notwithstanding, Stephanie Page didn’t like this comment, and approached me outside the courtroom the next day to question me and complain about the comment. Not one word from either of these lawyers was offered before this comment, but protest aplenty came forth immediately afterward. Selective review of my media coverage and commentary? It certainly seems so to me. I find it hardly fair, and not at all a balanced response.

Weinstein/Page assertions in MLW: MLW’s story discusses at length the subject of Ms. Page’s cross-examination of Medical Examiner William Zane, and the “wave of criticism from legal analysts” that she received following her suggestion that Rachel Entwistle may have killed herself. Weinstein observes that “There was a lawyer who offered an opinion with 99 per cent certainty about why it was that Stephanie conducted the examination of the medical examiner. He was 99 per cent certain, but he was 100 per cent wrong.” In my interview with MLW, I acknowledged that I indeed wrote this opinion in one of my blog postings (June 20 2008.). Page is quoted as saying that the theory I offered, i.e., that it was she who was chosen to cross-examine the medical examiner and suggest a murder-suicide theory (instead of Weinstein,) “included a preposterous premise that Weinstein refused to participate due to his objection to the strategy” (of suggesting murder-suicide; bold emphasis added.) That is an entirely false and incorrect characterization of what I wrote.

Fact: In my June 20 2008 blog post I wrote: “I would most certainly not have wanted to be the one advancing this (suicide) theory... I am not saying it was unprofessional, simply that it was unavoidably unseemly, and I cannot imagine anyone in that courtroom, other than Neil Entwistle, appreciating it. I can only imagine the conversation that must have taken place between Elliot Weinstein and Stephanie Page, over planning for whom between the two of them was going to… advance this line of questioning. I doubt it was very pleasant, and I'm 99% sure that it was Ms. Page who was ultimately awarded the role, due to the fact that she is a woman, and might be perceived by the jury with a greater degree of receptiveness than Mr. Weinstein, in suggesting that many women suffer from depression and some commit suicide.” (Bold emphasis added.)

I never wrote, or even suggested, that Weinstein “refused to participate due to his objection to the strategy” (of suggesting a murder-suicide.) I simply opined that such a harsh strategy might have been judged to be less offensive if offered by a woman, on the central subject of women and suicide. Further, I based my opinion largely on the fact that, up to that point, it was Weinstein who had conducted at least 90 per cent of witness cross examinations, and not Page.

These two lawyers zealously defended their client, who received a fair trial. They had their 15 minutes of fame, with a case almost no one could win, and they lost. I wish them the best of luck with their appeal. Now would they please do the rest of us a favor? Stop complaining and fade to black.

Let us all now put this matter to rest, and put it behind us. Case closed. (Pending appeal.)