Boston Criminal Attorney Blog

In my previous post on this subject, I reviewed the case of a man who had been convicted of eleven (11) prior offenses of exposing himself to women and girls. Despite this history, a Massachusetts Superior Court judge ruled that, following his release from prison after serving a sentence for his most recent of those convictions, the state could not “civilly commit” the defendant, because his prior offenses did not involve physical contact with any victims. A “civil commitment” is distinct from a criminal conviction. A civil commitment involves a situation where the state petitions a court under a specific state statute that allows for the state to incarcerate someone against his or her will, because they suffer from some enumerated form of mental disability or defect.

However, the Superior Court judge who refused to civilly commit this defendant, based his reasoning on the fact that the individual never actually touched or inflicted physical harm on any of his victims, but was ‘only’ an exhibitionist. Upon review, the Massachusetts Appeals Court disagreed, ruling for the first time that such offenses, which are known legally as “noncontact sexual offenses,” can be used as the basis for civilly committing someone against their will. In arguing for this ruling, Plymouth County District Attorney Timothy J. Cruz spoke to the legislative intent behind the creation of this statute, stating, “…The legislature had already decided (when it enacted this law) that a conviction for open and gross lewdness (should be) an appropriate basis, along with the other requirements in the statute, to find that someone was a sexually dangerous person.” In agreeing with Cruz’ position, judge R. Marc Kantrowitz of the Appeals Court ruled that the Superior Court had erred, and that the legislature fully intended to include noncontact offenses such as Open and Gross Lewdness, as subject to the statute. What this now means is that a conviction for Open and Gross Lewdness (I.e., exposing oneself to another in public,) can later be used as the basis to civilly commit a defendant after he or she has either been convicted and/or served any criminal penalty. (Note: There must first be a conviction on this charge, not merely an arrest or criminal charge.)

At the Superior Court trial on the issue of civilly committing this individual, it was acknowledged by both the prosecution and the defense that no physical contact occurred between the defendant and his victims. Hence, there were two legal points focused on at both the Superior Court trial, and later the Appeals Court: 1) The definition of “harm” to a victim of Open and Gross Lewdness; and 2) Did the legislature intend to include such noncontact offenses in enacting this statute? Commenting on the issue of harm, Cruz offered that “The notion that a man who publicly exposes himself to a young girl or woman, or who publicly masturbates in their presence, does not cause them harm is ridiculous.” On the issue of legislative intent, defense attorney William Korman commented, “The Appeals Court has now said essentially that any exhibitionist who’s likely to do it again – and by the way, they’re all likely to do it again - is now per se sexually dangerous.” (E.g., without any argument or hearing on that issue.) But the majority of the Appeals Court disagreed, and until the Supreme Judicial Court rules otherwise, noncontact sexual offenses can now be used by the state to incarcerate someone, after they have been convicted of that offense, whether or not they have already served a jail or prison term.

It’s an interesting legal point: Should someone who has never physically touched or harmed anyone, be subjected to incarceration by virtue of the fact that he or she has been convicted of “Open and Gross Lewdness,” in and of itself? Before most readers are prone to shout “Yes!:, consider this: Someone who is caught urinating in public, if their genitals were exposed to someone else and the person witnessing the act felt victimized, could easily be charged with “Open and Gross Lewdness.” (How many times has this act been witnessed after a sporting event, not the least of which is the Boston Marathon?) Under this Appeals Court ruling, it would initially appear that, if convicted of such a charge in such a scenario, even if such a person didn’t serve any jail time, he could theoretically be civilly committed if a prosecutor wanted to petition for such a commitment.

Everyone can agree that persons who have been convicted of being sexually dangerous should be held in custody. I certainly agree with that proposition. But I think the better course of action here, would have been for the Appeals Court to ask the Legislature to revisit this statute, and clarify its intent. If the legislature clarified the statute by amendment, thereby making clear they meant to include such noncontact offenses, then so be it. But on legal issues like this, it’s always better to be safe, than sorry.

A very interesting case was recently decided by the Massachusetts Appeals Court, on the subject of “sexually dangerous persons.” The decision provided a clearer (and much needed) definition of just what constitutes a “sexually dangerous person,” and the state’s ability to incarcerate such individuals when they have not been found guilty of a crime involving any physical contact with a victim.

The Appeals Court decision, Commonwealth vs. Grant, rejected a Superior Court judge’s earlier decision that a sexual offense which did not result in physical contact or physical harm to a victim, did not qualify as an offense that could subject the offender to being civilly committed as a “sexually dangerous person.” The state statute that governs civil commitment of persons suspected of being sexually dangerous is Massachusetts General Laws C. 123, Section A (“M.G.L. C. 123A”.) That statute allows the commonwealth to keep an individual incarcerated after he or she has been adjudicated guilty of a sexual offense, and/or served a criminal sentence, if such person “suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or … whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.”

In the instant case, the defendant, one Darren Grant, was about to be released on an earlier conviction for an offense known legally as “Open and Gross Lewdness.” This generally refers to sexually exhibitionism, or exposing oneself in public, and indeed, this particular defendant had been previously convicted of just that offense – on 11 separate occasions. A serial offender, Grant was about to be released after serving jail term for his most recent conviction, when the commonwealth, through the office of Plymouth County District Attorney Timothy Cruz, petitioned that Grant be held in incarceration under the civil commitment statute, M.G.L. c. 123A, after he completed his criminal sentence. A Superior Court judge, following a two-day trial on the motion, denied the commonwealth’s request, ruling that Grant’s prior convictions did not involve “physical contact or physical harm” to others, that he was not likely to cause physical harm to others, and that therefore, he could not be civilly committed after his prison term under M.G.L 123A.

The Commonwealth, through Plymouth County District Attorney Timothy J. Cruz, appealed that decision to the state Appeals Court. I’ll explain the important criminal law ruling that followed, and the even more impact it has on the general public in Massachusetts, in my next post.

In my previous post, I commented on former Massachusetts House Speaker Thomas M. Finneran’s lobbying efforts to secure a last-minute presidential pardon for his guilty plea two years ago to federal obstruction of justice charges. On his way out of the White House door yesterday, former President George W. Bush declined to grant Finneran that presidential pardon. Bush gave no reason for his inaction. Some legal and political observers were surprised, given the lobbying connections Finneran recruited in this effort, notably four former Massachusetts Governors, including former governor Paul Cellucci, who has close ties to the Bush family. In their joint letter to Bush, the four former governors wrote that Finneran has been punished enough, and that he has “suffered daily taunts and ridicule from those who feel every elected official is a “common thief.”

Whether our former governors wished to acknowledge it or not, those “daily taunts” come from none other than Finneran’s own colleague at radio talk show station WRKO-AM 680, Howie Carr. Carr is a well-known critic of State House operations and politicians in general, but many observers, including myself, think that Carr’s unrelenting broadcast and published criticism of Finneran may be a ratings ploy to generate more attention and listenership to the station. Regardless, Finneran now looks even worse than he did before this pardon effort. In a piece the Boston Globe was preparing on this story, Finneran reportedly did not return calls from the Globe seeking a comment.

I’m not surprised that Bush declined to grant the petition. Leaving the Oval Office with one of the lowest approval ratings of any President in modern U.S. history, the last thing Bush needed was more criticism in granting a pardon to someone who hadn’t even met the five-year post-conviction waiting requirement, before being eligible to apply for a presidential pardon. As I reported previously, next on Finneran’s to-do list is getting his license to practice law reinstated by the Commonwealth of Massachusetts. Finneran had a hearing on Monday January 20 2009 before the Board of Bar Overseers, the state agency that regulates the legal profession in Massachusetts. Meeting behind closed doors, the Board heard competing arguments on its own previous recommendation that Finneran’s license to practice be suspended for two years. That suspension began in January 2007. Opposing the Board’s two year suspension recommendation is the agency’s own Bar Counsel: That person has recommended complete disbarment.

The decision is expected to be issued next month, in February. I suspect that the Board will veer away from disbarring Finneran. My sense at the moment is that most members would consider that action too harsh, but Beacon Hill is no stranger to seeing strange things happen. We’ll have to wait and see.

Like so many of his predecessors in the office of the Massachusetts House Speaker, former Representative Tom Finneran left the office in disgrace, convicted of obstruction of justice in 2007.

The purpose of this post is not to report this news, as it’s now a few days old, but to probe the question: Should Finneran receive a pardon from Bush? If yes, why? If not, why not?

Finneran was convicted for obstruction of justice during a probe of a state effort to re-draw state legislative districts. Allegations of racial bias surfaced in the re-drawing of key state legislative maps. Some people claimed that Finneran took an active part in trying to redraw the legislative districts in a manner that would have underrepresented minority districts in the state legislature. After insisting on his innocence for some time, he later pled guilty to lying under oath and obstruction of justice, and was sentenced to 18 months' unsupervised probation and $25,000 in fines. In addition, his license to practice law was suspended, he was denied a state pension, and he was forced to resign his then very lucrative job as president of the Massachusetts Biotechnology Council. After leaving the Speaker’s office in disgrace, Finneran landed his current job as a talk show host on WRKO-AM 680 in Boston.

As I said, leaving the Massachusetts speaker’s office either in disgrace, or at the least under questionable ethical circumstances, is nothing new in Massachusetts legal or political circles. Finneran’s own colleague at WRKO-AM680, talk show host Howie Carr, refers to as the office of the Massachusetts House speaker as ”A job title that lately has a higher recidivism rate than godfather of the Gambino Crime Family.” A colorful description, but not exactly inaccurate.

Before even addressing the substantive merits of Finneran’s request, his attempt is defective procedurally: Federal law requires that anyone convicted of, or otherwise pleads guilty to, a felony, as Finneran ultimately pleaded to, must wait at least five years before requesting a Presidential pardon. Finneran has asked that outgoing President George W. Bush not only grant his substantive pardon request, but waive the statutory five-year waiting requirement. In support of his request, Finneran has lined up the support of four former Massachusetts governors: Republicans William Weld, Paul Celucci, and Jane Swift, and also former Democratic governor Michael Dukakis. Finneran's decidedly pro-political establishment radio talk show on WRKO-680-AM/Boston, has doubtless made this task easier, (though Michael Dukakis’ support is a little more confusing, given his well-earned reputation for tolerating no dishonesty whatsoever among elected officials during his three terms as governor. )

In support of his request, Finneran and his supporters state that he “has been punished enough” and is “genuinely remorseful” for his actions in obstructing justice in this investigation. That may be so, but it is hardly grounds alone for issuing a presidential pardon for this offense, let alone waiving the statutory five year waiting period. I suspect the real reason Finneran wants the pardon now, is so that he can cite it in a petition to the Massachusetts Board of Bar Overseers to reinstate his license to practice law. It’s extremely likely that Finneran made this request now, chiefly due to his success in recruiting former governor Paul Celucci to his side in this effort, and due to Celucci’s close personal relationship with President Bush and the Bush family. While Finneran may share party affinity with President-elect Barack Obama, I believe he considers his chances with his Bush connections would be stronger than with Obama’s team. Also, presidential pardons are almost always granted by Presidents who are leaving office (chiefly so they can then dodge any questions later if necessary,) not assuming office as a new President. Hence, for Finneran, it’s either make the request now, while he has the Bush connections in the White House, or wait quite some time. And without a presidential pardon, any efforts to reinstate his license to practice law in Massachusetts, would be made more difficult. Not impossible, but he would have a much easier time of it, if he had in hand a pardon from the President of the United States.

I think the fairer course would be to decline Finneran’s request of the five year waiting period at this time, and require that he wait the full five years like anyone else. It may well be that he has genuine remorse for his actions, but if genuine remorse were the standard for issuing pardons for criminal convictions, our prisons would probably be half-empty, instead of overflowing. If Finneran has the support of these four former governors now, he should almost certainly have them later, when he can make the request of a new and incumbent President, not a lame-duck one on his way out the door, who has already made more stunning mistakes and questionable decisions than any President in modern U.S. history.

In my previous post on this subject, I reported on a brutal murder which took place in Hyannis, Massachusetts last December 15 2008. Aside from the savagery that marked this particular murder, what distinguished it from most murders was the fact that two of the three defendants charged with this murder are 13 years old, and are prevented by Massachusetts’ Juvenile Offender Law from both being tried as adults under the law, and shielded from a public trial. However, what many observers consider to be far worse, is these two defendants, if found guilty, can be held in state custody only until age 18. After the age of 18, the state can petition a court to continue to incarcerate that convict until he reaches the age of 21, but that is the maximum: After reaching the age of 21, that convict must, under the Juvenile Offender statute, be released from custody. Given the shocking allegations in this case, this potential outcome has been met with understandable outrage from a number of corners.

As I explained briefly in my previous post, were either of these two 13 year old defendants just one year older - age 14 - they could be tried as adults under the Juvenile Offender Law, and if found guilty, punished as adults. That would mean life in prison without the possibility of parole, if convicted of first degree murder, and a typically a minimum of twenty years if convicted of a lesser offense involving murder. The Juvenile Offender Law protecting these 13 year-olds was designed to shield very young offenders from the punishment meted out to adult offenders. But while a laudable idea in theory, is this law ill-advised in the real world we live in? Conservatives would brand this type of law the product of “bleeding heart liberals.” While I don’t count myself among conservatives, looking at this case, it’s hard to presently disagree with that assessment.

In my capacity as an experienced Massachusetts criminal defense attorney, I have been involved with many violent cases: From Assault and Battery with a Dangerous Weapon, to Rape, to Drug Offenses, to Murder. In my opinion, rather than choose an arbitrary age (such as 13), and declare that “No one of this age or younger can be tried under the same laws as an adult,” it would be a far more just approach to gauge each case on its own facts, in deciding whether or not to subject a youthful offender to the same laws that would apply to an adult in that case. Instead of a “blanket” approach, the set of facts and allegations that independently comprise each case should determine whether or not a youthful offender should be shielded from the laws that normally apply to adults.

I believe a wise approach would be as follows: Instead of statutorily tying a judge’s hands in an unspeakably heinous crime such as this, and forcing that judge to shield a defendant from the normal laws and punishments that would apply to an “adult” defendant in the same case (i.e., potentially anyone aged 14 or older,) an alternative mechanism should be created that would involve a legal maxim known as a “rebuttable presumption.” Under such a system, a “rebuttable presumption” would exist that a criminal defendant under the age of 14 should be shielded from the normal laws and criminal sentencing that apply to defendants over the age of 14. However, judges would be allowed to hear arguments by prosecutors that could, if the evidence presented were persuasive enough, rebut that presumption, and allow the judge to try such a defendant as an adult. While I am a defense attorney, I believe this approach to be quite prudent, and fair. It is quite true that courts should indeed recognize that very youthful offenders often merit protections that adult defendants do not enjoy, and such an overall approach is justified. But an absolute prohibition against exposing defendants under the age of 14 to adult sentencing, is overly-broad, and can produce decidedly unjust criminal law results. There is a sociological or theoretical presumption in the present Juvenile Offender Statute, which presumes a 13 year-old cannot know or understand that nature of his acts; that such an individual cannot be evil. I do not believe this statutory presumption to be true in all cases. Tragically, several cases, including apparently the present one written of here, illustrate the fallacy of this presumption.

At this point, these defendants must be presumed legally innocent, and they should each receive a vigorous legal defense from competent legal counsel. However, a close look at the evidence in this case, may make clear that our justice system should not shield someone accused of a heinous crime, on the basis of his age alone. Savagery and depravity can exist inside any human being, regardless of age. While some of my defense bar colleagues might disagree with my suggestions here, I believe our common goal in such cases should be justice, not loopholes. In my opinion as a Massachusetts criminal defense attorney, to do otherwise is to invite the crude jokes and criticism far too often heaped upon the criminal defense bar.

By now, many have read or heard of the gruesome, recent murder of a 16 year-old boy in Hyannis, Massachusetts. The body of Jordan Mendes was found buried in a ditch on Jennifer Lane in Barnstable on Tuesday night, December 16 2008. According to Cape and Islands District Attorney Michael O’Keefe, Mendes had been stabbed and shot to death shortly after noon on December 15 2008. The next day, his body was doused with gasoline, rolled in a carpet, set on fire, and then buried, smoldering, in a dirt hole. Police have arrested three individuals for this murder.

But if the facts couldn’t get any worse, investigators allege that two of the victim’s killers were 13 year-old boys – and that one of the 13 year-olds was the victim’s half-brother. The two 13 year-olds are Kevin Ribeiro and Mykel Mendes; Mendes is the victim’s half-brother, and they share the same father, one Manuel Mendes. Manuel Mendes is a convicted cocaine dealer, who is currently serving a 35-year federal prison sentence for cocaine trafficking. The third defendant is 20 year-old Robert Vacher. According to a criminal complaint in Barnstable County District Court, investigators allege that Robert Vacher stabbed and shot Mendes, while the two 13 year-old defendants supplied the gun and the knife, and were present during the murder. The three defendants allegedly stole $10,000.00 from the victim, who was alleged by the defendants to be a drug dealer, and bought a silver BMW with the cash.

Any reasonable person would expect that all these defendants should be put on trial for murder (presumably in the first degree,) and if found guilty beyond a reasonable doubt, spend the rest of their lives in prison. But it gets complicated from here – and unpleasant. Because two of these three defendants are under the age of 14, they cannot be tried as adults in Massachusetts. This is due to the state’s Juvenile Offender Law, which provides that while defendants aged 14 and older can be tried as “youthful offenders” and sentenced as adults, juveniles under the age of 14 are shielded by this statute from: 1) A public trial; and 2) If found guilty of this charge (or any criminal charge,) such juvenile defendants can only be held in state custody until a maximum of age 21. If these two 13 year-olds were 14 or older, they could be charged as youthful offenders in open court, and incarcerated past the age of 21. Under the existing law, they can’t.

In my next post, I’ll talk about what, if anything, should be done about this type of criminal law situation.