Boston Criminal Attorney Blog

This past Wednesday, November 26, a Hampden County jury found Jason Strickland, stepfather of Haleigh Poutre, guilt on five of six counts of child abuse and neglect. This case has become famous for several important reasons: First, Haleigh has tragically become an icon for child abuse and neglect by parents and caregivers within many homes in this state, and across the country as a whole. Secondly, the case has raised right-to-life issues: Haleigh’s multiple injuries were so severe that several doctors determined that she had suffered irreversible brain damage, was in a “persistent vegetative state”, and would never emerge from that state. Based on those medical diagnoses, the Massachusetts Department of Social Services (DSS – the state child protection agency,) waged a four-month legal battle to remove life-support from the girl. Shortly after the state won that battle, Haleigh emerged from unconsciousness, and began breathing on her own. Now 14 years old, she can speak simple sentences, and communicate with an alphabet board.

Third, this case exposed the incompetence and neglect practiced far too often by the Massachusetts Department of Social Services (DSS), the state’s child protection agency. Evidence in the case made clear that for five years, state officials failed to detect the abuse this child was suffering, and failed miserably in their charge to protect this tragic, and innocent, figure.

Strickland, who was married to Haleigh’s adoptive mother, Holli Strickland, was found to have not only abused Haleigh himself, but also to have recklessly permitted multiple instances of abuse to be perpetrated against Haleigh by Holli Strickland, who the jury apparently concluded was the chief abuser in this horrid story. Shortly after the Stricklands were arrested on charges of abusing Haleigh, Holli Strickland was killed in an apparent murder-suicide committed by her (Holli’s) grandmother, who raised her. The world became a better place when that day arrived.

Jason Strickland now faces a maximum of approximately thirty years in state prison, and he should serve every day of this sentence. Notwithstanding my status as a Massachusetts criminal defense attorney, who believes strongly in the principle that every person charged with a crime is entitled to a zealous defense and a fair trial, I also firmly believe that people who have been found guilty of horrible crimes after a fair and just trial, ought to be punished accordingly. The crimes that Jason Strickland has been convicted of, are so horrendous as to stun the most hardened in the criminal justice system. Sentencing is set for December 11 by Superior Court judge Judd Carhart, and one can only hope he imposes the maximum allowable term(s) for these horrendous crimes.

But guilt here doesn’t – and shouldn’t – end with Jason and Holli Strickland. The Commonwealth of Massachusetts, through its officials and personnel within the DSS, also bear enormous responsibility for what happened to this child. More on that aspect of this case, and what perhaps should be done about it, in my next post.

Observers of recent developments in Massachusetts criminal law couldn’t avoid the news of one Che Blake Sosa, a particularly vicious excuse of a human being currently housed as the state’s esteemed guest at MCI-Cedar Junction prison in Walpole, Massachusetts. In February 2007, Sosa made news when he concealed a knife or "shiv" in his prison jumpsuit, made out of carved plexiglas, brought it into court, and in front of an entire courtroom, stabbed the very – and only – man in that courtroom willing to defend him – his own lawyer. Since then, Sosa has never been taken anywhere without at least a half-dozen armed guards surrounding him, shackled hand and foot. He seemed to relish the attention.

Now he’s got some more attention to be happy about: It seems Sosa was able to persuade a registered nurse who was contracted by the state to work at MCI-Cedar Junction, to assist him in a plot to break out of the maximum-security prison. Deborah Girouard, 44, confessed to police and prosecutors this past Wednesday that she had developed a “relationship” with Sosa, and had agreed to smuggle saw blades, a disguise, and other weapons into the prisoner’s custody to facilitate his escape. According to police investigators, Girouard had gone so far as to obtain and store all of the weapons and disguises in her locker at the prison, but backed out of the plan at the last minute, when Sosa reportedly threatened to kill her if she didn’t follow through with the scheme.

This news has more than a few people asking: How could such an irresponsible, arguably unstable person such as Girouard, end up being granted access to some of the most dangerous criminals in Massachusetts? Several observers have begun to question the process of how independent contractors like Girouard (she was not a state employee, but contracted by the state to work inside the prison as a nurse,) come to be placed inside some of the most sensitive security situations possible, such as inside a maximum security prison. Had Sosa’s plan been carried out and he successfully escaped, several people – prison personnel as well as residents of surrounding communities – would likely have been killed or seriously injured.

So far, no comment has been issued by state officials, and an inquiry will likely follow. Hopefully, adequate changes will be made, and soon, to a prison contractor hiring system that has obvious flaws within it. Every person charged with a crime is entitled to a vigorous defense, no matter how violent the offense he or she is accused of. But if and once convicted, the public and prison personnel must be protected from such individuals.

Massachusetts Department of Correction officials should act swiftly to assure that screening and hiring practices for such security-sensitive contractor positions are reviewed and if necessary corrected.

In my last post on this subject, I explained the legal changes soon to take place in Massachusetts (probably early January 2009) in the area of marijuana possession and use. Police officials in Massachusetts, understandably, are now publicly expressing concern that they have no idea exactly how to enforce this new law. Among the questions they have:

• How will police officers on the street accurately measure what constitutes one ounce of pot? Should each police cruiser have a measuring scale in it? If the pot is rolled into cigarettes, how many joints equal an ounce?
• If a vehicular stop occurs and pot is found, does that give officers probable cause to search the vehicle for evidence of criminal activity or contraband? Will any such searches withstand legal challenges?

These questions are legitimate, and the Attorney General, in conjunction with the Commonwealth’s 11 District Attorneys, can and should develop appropriate enforcement guidelines for the state’s 351 municipal police departments, and the state police. But let’s not hear too many cries that the sky is falling: Revised criminal laws are nothing new in this state, or anywhere. Previous criminal statutes have been revised to incorporate, or “morph” into a civil regulatory structure in the past, and worked well. I see little reason to believe that can’t be done here. Many respected authorities within this debate made the legitimate argument that tens of millions of dollars and thousands of professional hours per year from police officers and District Attorneys’ offices, were mandatorily spent on prosecuting an offense that many respected observers consider to be minor in nature.

Was this a wise and effective use of our collective tax dollars, when serious crime surrounds and infects many of our cities and towns every day? Many think not. In the past week alone, more than one District Attorney’s office in Massachusetts has announced that budget cuts are forcing them to lay off several prosecutors in their offices. Those prosecutors who are not laid off, will be forced to bear even heavier caseloads. With homicides, rapes, gang warfare, robberies and violent criminals plaguing so many prosecutors’ already-strained offices, we need prosecutors concentrating their resources on the real “bad guys” among us, not on someone carrying a few joints for his or her own private use.

In my opinion as a Massachusetts criminal defense lawyer, this is not a liberal or a conservative view, neither a lenient nor a tough one. Only one of common sense.

Now that voters in Massachusetts have overwhelmingly approved (by a 65% to 35% margin) last week’s November 4, 2008 statewide ballot initiative, it falls to the state’s chief prosecutorial and law enforcement officials to “iron out” the new procedures and legal protocols necessary to shift away from the decades-old criminal law enforcement scheme for marijuana possession. Presently, that criminal statute provides for maximum penalties for up to six months in jail and a $500.00 fine, for possession of any amount of marijuana. The new law will decriminalize possession of one ounce or less of pot, and instead provide for a civil fine of $100.00 in its place. The law presumes that a person found in possession of one ounce or less of marijuana has no intent to distribute (i.e., is not a dealer) and intends the substance for personal use only.

On the issue of decriminalizing possession of small amounts (one ounce or less) of marijuana, it seems that the public appears to have been ahead of the politicians here: All 11 of the state’s District Attorneys, the Massachusetts Chiefs of Police Association, Attorney General Martha Coakley, Governor Deval Patrick, a wide range of state legislators, and an equal complement of leading religious leaders, all spoke out actively in opposition to making possession of less than one ounce of pot a civil offense. (Notably, so too, editorially, did the Boston Globe.) Despite this, voters approved this measure by an almost 2-to-1 margin. Whether in agreement or disagreement with this ballot result, few responsible people can argue that the result isn’t a voter mandate. The approved ballot measure will become law 30 days after being presented to the Governor’s Council, which usually meets in late November or December. That means the new law will take effect probably in early January 2009. Until the date the new law takes effect, the present law governing possession of any amount of marijuana remains in effect.

People should understand several important points: First, the new law only partially decriminalizes possession of marijuana (one ounce or less,) and the new law isn’t quite as lenient as it seems: Anyone caught with an ounce or less of pot will be forced to forfeit the marijuana, as well as being assessed the civil fine of $100.00. (Exactly where this confiscate pot will end up, is anyone’s guess, notwithstanding regulations that I am sure will soon be developed.) In addition, anyone under the age of 18 caught with an ounce or less will not only have to forfeit the pot, but if they don’t complete a mandatory drug awareness program, the fine they face will be ten times the normal fine: $1,000.00.

I’ll have more on this new law in my next post on November 13 2008.

A cornerstone of American criminal law is that an accused is innocent until proven guilty. That’s a critical protection within our criminal justice system, and it distinguishes us from the systems that some other countries use. Notwithstanding this precept, it seems that some people, no matter how many times they see the guilty fall, think they can act with impunity to break all kinds of different laws. In my experience as a Massachusetts criminal defense attorney and legal commentator, this is most commonly seen in the areas of organized crime and politics (which some observers would say are not that far removed from each other).

In Massachusetts, we have once again seen the envelope of brazenness pushed to the limit, with the arrest and arraignment earlier this week of state senator Dianne Wilkerson, of Roxbury, Massachusetts. Sen. Wilkerson was charged with 23 separate counts of federal bribery charges, representing the culmination of an 18-month plus undercover investigation by FBI and federal law enforcement authorities. Federal authorities received information from an undercover informant in 2007 that Sen. Wilkerson was accepting bribes from business interests seeking favorable approval for a range of permit applications, including liquor licenses and real estate development approvals, from state and city officials.

What makes the charges against Sen. Wilkerson so challenging to the concept that everyone is presumed innocent until proven guilty, is the fact that FBI agents, posing as businessmen, wore concealed video cameras and microphones in their meetings and “dealings” with Sen. Wilkerson, and what is seen on these videos makes “brazen” seem mild by comparison. Sen. Wilkerson is seen on tape taking thousands of dollars at a time in cash bribes, in hand-to-hand delivery – at one point actually stuffing fistfuls of cash under her sweater, into her bra. Despite this overwhelming evidence in the form of video and audio tape, and informants ready to testify against her as well, Sen. Wilkerson insists that she is innocent of these charges.

What she may mean is “legally” innocent: Give the quantum of evidence against Sen. Wilkerson, her most likely defense in court will be that she was “entrapped” by government authorities. This artful legal defense asserts that, while the defendant may have actually committed the illegal acts he/she is charged with, the defendant would not normally have otherwise committed those acts, if they were not first “enticed” to do so by government investigators seeking to “entrap” her. If this defense argument were accepted by a jury, a defendant so charged could be found not “legally” guilty of the act(s) charged with. In essence, this is a seduction defense, and, while it’s sometimes been successful, it fails more times than it succeeds.

For context, it should be noted that this is not Dianne Wilkerson’s first or only brush with the law. She was previously charged with tax evasion, campaign finance violations, defaulting on student loans, and was previously sentenced to monitored confinement in a halfway house in Boston. Since these newest charges erupted earlier this week, she has terminated her attempts to mount a write-in campaign after losing the state senate primary election in September. Defiant still, she insists she is innocent of these federal bribery charges.

Dianne Wilkerson is entitled to due process, a fair trial, and to a vigorous legal defense. But it isn’t going to be easy.