Boston Criminal Attorney Blog

As we wind down 2008, here are a few wishes from me:

That my readers will be spared from the violent crime that infects so much of our world, near and far.

That if accused of a crime, my readers will benefit from a system that presumes innocence before guilt, and that provides due process for all.

That lawyers, legislators and judges continue to work together, to improve the delivery of criminal justice to all who seek it.

That the innocent will be exonerated, the guilty punished, and the doubtful reassured.

A happy and healthy New Year to all.

Unfortunately, the alleged Ponzi scheme reportedly orchestrated by Bernard L. Madoff continues to cause ripple effects locally in Massachusetts. Aside from wealthy individual investors, many institutional clients have suffered as result of this scheme, including several charitable organizations. While some organizations have suffered substantial financial losses but appear able to absorb the damage without folding, some have suffered a fatal blow. One such charitable organization is the Picower Foundation of Palm Beach, Florida, run by Jeffry and Barbara Picower, well-known philanthropists. This charitable foundation has been one of the largest philanthropic organizations in the United States, with assets at one point reaching a half a billion dollars. The foundation invested a great deal of its money with Bernard Maddoff, and suffered devastating losses as this scheme collapsed. Barbara Picower, the foundation’s president, announced earlier this week that the foundation has ceased all grant-making activity, and will close its doors. The effect in the Massachusetts medical community will be felt painfully: The Picower Foundation had donated heavily to the Massachusetts Institute of Technology, to fund brain research, and to Harvard Medical School, for diabetes research. Now, that funding, and the important medical results that flow from research in these areas, will cease. Madoff was arrested by federal authorities earlier this month, on December 11, and charged with orchestrating and running a Ponzi scheme – which essentially pays one set of investors with money from another set. In addition to the Picower Foundation, the Boston family of Carl and Ruth Shapiro, which has funded tens of millions of dollars in medical research in Boston, reportedly lost over $145 million, and the Robert L. Lappin Charitable Foundation in Salem, Massachusetts, was also forced to cease operations last week.

In my previous and second post on this subject, I reviewed the events leading to the killing of a Wal-Mart worker at the company’s Valley Stream Long Island New York store, and what should be done in response to this crime, in the parochial and more national sense.

Equally as important as law enforcement’s anemic response to this banality, where was the moral leadership in responding to this event, from elected officials? To date, nothing of any import or gravity has come forth from Long Island, NY elected officials or New York state officials such as the Governor. Critically, this was a stunning opportunity for president-elect Barack Obama to depart very briefly from purely economic issues (which are understandably pressing,) and exert moral leadership and direction, to a country that has all but lost its moral compass. Yet, nothing. How can it be that in this country, a nation hailed as the world’s most civilized, something like this can happen, and nary is a word uttered from our national leaders? The contradiction is stunning. As my previous profession used to be as a public policy and political affairs manager, I’ve advised several political officials in my career. Had I Barack Obama’s ear now, I would have advised him that this tragedy represented an enormous opportunity for him to set the moral tone for his incoming presidency; an opportunity to raise our sinking national decency along with raising our national economy.

A country cannot borrow civility. It cannot mortgage it; it cannot legislate it; and it cannot bail it out. It must both be set by example from without, and it must come from within. Our national and local leaders must see this, and set this example. Only then, will the “average person” respond in kind.

Twenty years ago, George H.W. Bush had the courage and foresight to urge us as a nation to become a “kinder, gentler nation.” One can agree or disagree with his politics (and God knows, his incompetent son, soon to exit the White House) but twenty years ago, Bush the elder had his finger on a growing problem within this country. How unfortunate that our present leaders, from Long Island to Congress and the White House, don’t seem to have that same courage. (I say this without partisanship.)

As a Massachusetts criminal defense attorney, I had hope that those individuals responsible for this sickening act would be brought to justice, swiftly and severely. Perhaps if that were done, and the punishments were widely reported by the media, then just maybe our collective conscience could be stirred.

As of today, it appears that’s not going to happen, and I’m reminded of a line from a song: Silence, like a cancer, grows.

In my last post, I reviewed the events leading to the killing of a Wal-Mart worker at the company’s Valley Stream Long Island New York store, when shoppers tore down the doors of the store, stampeded inside and trampled to death one man, as well as injuring several others including an eight-month pregnant woman. Part Two of this post deals with what should be done about this crime, in the immediate and much larger sense.

What has happened to us as a country, as a people? What kind of culture have we descended to, and when did this kind of savagery and numbing down of our country begin? Twenty to 25 years ago, an incident like this would have been front-page news- and justifiably remained so for several days. It would have provoked gasped shocks across the country. Upon hearing news like this, people would have held their hands over their mouths, in shocked disbelief that Americans could act this way. Now? It’s seemingly nothing extraordinary. As a nation, we have become numb to violent acts like this; numb to civility that has dropped to an all-time national low in this country. Nothing shocks us anymore. Most people see this in a newspaper, and turn the page; if they see a ten second piece on TV they click to another station. “Wait! Isn’t there a re-run of “Deal or No Deal” on now? Yeah, put that on!”

Understand something: This “stampede” was not a scenario where starving masses in a war-torn area mobbed a food supply truck. We’ve all seen those images, from Bosnia and Darfur, and similar points all over the globe. However ugly, such desperate, unregulated behavior like that can be explained by the primitive desire to survive, the will to live, by human beings in desperate, life-threatening circumstances. The circumstances that existed here? $25 off the price of the latest Blackberry.

That store was a crime scene; the site of a possible murder, or manslaughter in the least. The store should have been sealed off, no one should have been allowed to leave as all persons inside thsat store were potential suspects, and the names, identities and statements of every shopper inside should have been recorded, before anyone was released from that store. If this process took a full day, that is what should have been done. The security tapes should have been confiscated immediately, and witness statements collected from everyone available, including all store management on site. All this should have been done to pursue as aggressive an investigation and prosecution of this death as humanly possible.

If for no other reason, this should have been done to widely publicize a message to an uncivilized country that behavior like this won’t be tolerated anywhere – that savages like the people who committed this act, will be put behind bars. Does anyone think this savagery would happen again in the future, if authorities made a just and visible example of this event now? Does anyone doubt that people would think twice of ever doing this again if the savages who did this were now behind bars, awaiting trial? In contrast to the aggressive response that the Valley Stream, Long Island police should have taken, it appears that they didn’t know what to do, nor who to approach as suspects. Shamefully, no criminal charges have yet been filed against Wal-Mart, either. I believe that in the least, Wal-Mart should have been charged with criminal recklessness, in not taking advanced security measures in the hiring of adequate numbers of armed guards, whether hired as detail assignments from the local police department (as many department stores do) or hired from a private security firm. Based on this type of violence witnessed in the past with similar midnight "deep discount" sales at Big Box stores, Wal-Mart could not have been unaware of the risk it was creating. As a practicing criminal law attorney, I believe a cogent argument can be made that Wal-Mart, in holding and promoting this “deep discount” or “Black Friday” sale, exercised criminally reckless disregard for the safety of everyone in that store. At the very least, the Nassau County District Attorney, or the New York State Attorney General, should investigate this possibility.

Next: Political leadership Amidst An Increasingly Criminal Environment

This post reflects more editorial commentary than legal analysis, but is nonetheless appropriate for this criminal law blog. The news that a Wal-Mart worker was killed in a human stampede at a Long Island, New York store’s post-Thanksgiving Day sale, has seemingly come and gone, apparently without major public reaction. A blip on the mainstream news media’s radar screen, this sickening news came, and apparently just as fast, has disappeared. No meaningful outcries came forth from local officials; or from state officials in New York. No outcries emerged from religious or clerical leaders, local or national. A few columnists in some of the dailies such as the Boston Globe (to their credit) wrote of the event, but on the whole, this event seems to be a non-event.

I find this shocking. Not only was this incident legally criminal, it was savage and barbaric – the behavioral province of the lowest form of animal life. Readers will notice I inserted the word “human” in front of “stampede,” above. There is a reason for this grammatical construction: “Stampede” is a word almost always associated with the behavior of wild animals. And that is precisely the behavior that took place here. Witnesses reported the mob of shoppers at this store knocked the man down, mercilessly. After he fell, he was intentionally stepped on and trampled by hundreds of shoppers, who could not have cared less what they were doing. As the helpless victim gasped for air, people ran over and around him, completely unfazed, as though he were invisible.

"He was bum-rushed by 200 people," said Jimmy Overby, 43, a Wal-Mart co-worker. "They took the doors off the hinges. He was trampled and killed in front of me. They took me down too...I literally had to fight people off my back." The offical word from the Nassau County, New York Police is that the investigation is still ongoing, but as of a conversation I had earlier this week with the Department’s Public Information Office, no arrests had yet been made – and neither are any arrests expected. The reason? So many people collectively committed this act, police have no idea who to arrest – and not one of the “shoppers” who was at the scene are willing to say a word. An ignorant, pathetic wall of silence. Aside from the man killed, police said several other people suffered injuries from this sorry spectacle. One witness told reporters she saw a woman knocked down just a few feet from the dying worker. The woman was eight months pregnant. This meant nothing to this mob.

Before police shut down the store, these shoppers actually continued to stream past emergency crews as they worked furiously to save the store clerk's life, completely unconcerned with the man dying in front of them, and even impeding the EMT’s efforts. "They were savages," said shopper Kimberly Cribbs, 27.

For the sake of saving $100 on a wide-screen TV, a mob of people killed a man – knowingly and freely. Hundreds of people walked and ran over this man, without a second thought. These people didn’t just “stampede” the store once managers opened the doors at the scheduled opening time – they broke the doors down before store management could even open them. They stampeded like wild animals, willing to kill a man to save a few bucks on a plasma screen or the newest IPod. As if this could get any worse, the crowd then became irate when the store announced that an employee had been killed and the store was temporarily closing. They weren’t shocked at what they had done – they were irate that the store was closing for a few hours. It seems Wal-Mart's storied tag line, "Save Money. Live Better.", should now be "Save Money. Kill Trying."

Who is responsible for this savagery? What should be done? I’ll address these thoughts in my next post.

In my previous post on this subject, I wrote of the guilty verdicts returned by a jury last week in Springfield, Massachusetts, against Jason Strickland, the stepfather of Haleigh Poutre. The evidence against Strickland was compelling, he’s been found guilty, and hopefully his sentencing on December 11 will be extremely severe, as it should be. I say this as a Massachusetts criminal defense attorney who believes every person has the constitutional right to a zealous defense of any charges against him or her. But now that guilt has been established, someone like this deserves as severe a sentence as can be handed down. It isn't at all inconsistent for a defense attorney to believe in punishment after guilt had been established beyond a reasonable doubt, and Mr. Strickland's appellate rights will remain unchanged under the Massachusetts sentencing parameters for this crime.

But there are other guilty parties in this sad story, and at the center of them is the Commonwealth of Massachusetts, through its child protection agency, the Department of Social Services (DSS.) The negligence exhibited by DSS caseworkers in this case is appalling. On numerous occasions over five years' time, several people reported their suspicions to health workers and DSS officials that this young child was being badly abused by her step parents. Reporting parties included doctors and nurses at hospitals and medical offices that Haleigh was treated at on various occasions over those five years, as well as teachers, and even neighbors. According to sources, after each of these reports, DSS workers made inquiry to Haleigh’s stepmother Holli Strickland, and her stepfather Jason Strickland. Both Stricklands told DSS workers that Haleigh was responsible for casing her own injuries – and shockingly, DSS believed it. Repeatedly. Over five years. These injuries included cigarette burns, whip marks, ligature (rope) marks, welts and bruises from being beaten by something resembling an electric cord, cuts, lacerations, bruises, concussions and sprains. Yes, you read correctly: In the face of injuries and evidence like this, DSS officials bought repeated stories offered up by these twisted step parents that this young girl had “A habit of hurting herself.”

Incompetence and negligence on this level strains credulity. But it happened. Now, what to do about it? Plainly put, heads should roll here: There should be a top-to-bottom review of who was in charge at DSS when this incompetence was allowed to take place, and all responsible people involved in this inexcusable tale should lose their jobs, immediately. Further, DSS leaders and its caseworkers should not only be sued civilly for gross negligence, they should be held criminally responsible for what occurred here. Legally accomplishing this would be a tough task – something known as “reckless disregard” would likely need to be shown on the part of DSS executive leadership and its caseworkers, as opposed to ordinary negligence. There is also the problem of something known as the "sovereign immunity" of DSS leaders and workers acting in their official capacity. Notwithstanding, I believe a state prosecution should be undertaken here. It is not enough for DSS to “have the best of intentions.” It is not enough that it “means well.”

True, DSS workers handle many cases at once, and each is doubtless difficult. But that is no excuse for the type of gross incompetence and recklessness that occurred here. A strong message needs to be sent to this agency and the officials within it, from the commissioner of DSS, on down: This type of incompetence won’t be tolerated again: Drop the ball again on a scale like that which occurred in the Poutre case, and you’ll face criminal charges. Legislative action may be needed to create statutory language that would expose such personnel to criminal penalties, and politically as well as practically, the objections to such a statutory mechanism would be numerous. Obviously, any such language would need to be carefully crafted so as not to expose every DSS caseworker or supervisor to criminal charges should a mistake be made, as mistakes are unavoidable. Granted, that may be difficult to do. But if there are not stiff penalties to face for this type of negligence, what is to prevent it from happening again?