Boston Criminal Attorney Blog

The Middlesex County District Attorney’s office scored a big prosecutorial hit earlier this week, with the conviction - on the second try - of a defendant who had been charged with a double homicide in 2006 in Wakefield, Massachusetts.

Sean Fitzpatrick, 46, of (ironically) Freedom, New Hampshire, will never know freedom again. He was convicted February 19 2009 by a Middlesex Superior Court jury of two counts of first degree murder in the deaths of Michael Zammitti, Jr., 39, and Chester Roberts, 54. Fitzpatrick was also convicted of a lesser charge of illegal possession of a shotgun. The first degree murder convictions carry a mandatory life sentence in Massachusetts. While an appeal to the state Supreme Judicial Court is by law automatic, as a Massachusetts criminal defense attorney, I doubt there is much room for reversible error in these convictions. Sentencing is scheduled for tomorrow, February 23, before the judge presiding over the trial, Judge Kathe Tuttman.

Just after 8 a.m., on Monday, March 13, 2006, Wakefield Police responded to a 911 call from an individual at Allstate Concrete Pumping, located at 17 New Salem Street in that town, reporting an unconscious male. Upon arrival at the scene, police discovered the body of Chester Roberts on the first floor of the building, and the body of Michael Zammitti in a second floor office. Both victims were both pronounced dead at the scene. Zammitti was the owner of Allstate Concrete Pumping, and Roberts was a longtime employee at the company. Autopsies by the Medical Examiner determined that Zammitti died from a gunshot wound to the head, and the cause of death for Roberts to be a gunshot wound to the back. Prosecutors produced evidence that Fitzpatrick drove to Wakefield from New Hampshire on March 13 and shot the two victims. Fitzpatrick was a friend and neighbor of the Zammitti family, who owned a summer home in New Hampshire. Prosecutors alleged that Fitzpatrick was interested in pursuing a relationship with Zammitti’s wife, Michelle, and killed Zammitti to accomplish that objective. Chester Roberts, prosecutors established, was killed by Fitzpatrick as Roberts was a witness to Zammitti’s murder.

Interestingly, Fitzpatrick had reason for hope in this trial: The prosecution’s first attempt at a conviction in this case, in a July 2008 trial, ended in a mistrial being declared on August 28 2008, after that jury was unable to reach a verdict. That mistrial very likely occurred, because Zammitti’s wife, Michele, had testified in the first trial that she, in fact, had an affair with Fitzpatrick, deceiving and being unfaithful to her husband, Michael. Doubtless in the minds of that first jury, that admission put her veracity and truthfulness in question. While Michele Zammitti had testified in the first trial that said she had told Fitzpatrick that she was ending the affair and was returning to her husband for good, that jury likely saw reasonable doubt as to whether or not she may also have been culpable in the murders. Fitzpatrick admitted in the first trial that he had an affair with Zammitti's wife, but he denied shooting the victims. The week after the shooting, Michele began cooperating with police and made a two-hour phone call to Fitzpatrick that was secretly recorded. This time, this jury didn’t see any reasonable doubt.

Commenting on the convictions, Middlesex County District Attorney Gerald Leone said, “We are thankful to the jury for returning a just verdict on behalf of Michael Zammitti, Jr. and Chester Roberts,” District Attorney Leone said. “Sean Fitzpatrick — in a cold-blooded and reprehensible act — took the life of the man who stood in the way of what he wanted. He then cowardly eliminated the only eyewitness, Chester Roberts, by shooting him in the back. “I want to thank the members of our trial team, as well as the Massachusetts State Police and Wakefield Police, for their outstanding work over the course of nearly three years and two trials,” Leone added. Fitzpatrick’s defense attorney declined comment. The prosecution's case was tried by Assistant District Attorney Daniel Bennett, and Deputy District Attorney Denise Casper.

By the way, for readers wondering how someone can be tried twice on the same charges: The constitutional prohibition against "double jeopardy" applies only to acquittals, not mistrials.

In a major step forward in progress toward treating the opposite genders truly equally, the Massachusetts Supreme Judicial Court recently handed down a sharply divided ruling in a case involving underage sex and statutory rape.

The case involved consensual sex between a 14 year old high school boy and three underage girls, two of whom were 12 years old and the other 11. Various sex acts were alleged to have taken place between the boy and each of the girls, between August and October of 2007. The police investigation revealed that no force was involved in any of the encounters, and that the alleged sex acts between the boy and all three girls was voluntary and consensual on the part of all four youths. However, Plymouth County District Attorney Timothy J. Cruz chose to prosecute only the boy with statutory rape, not any of the girls. Under Massachusetts law, it is deemed a crime for anyone of either gender under the age of 16 to have sex.

Notwithstanding the wording of any statutes concerning gender, statutory rape laws have almost always been enforced against boys under the age of 16, not girls. Statutory rape laws are very old, and had their origin in the antiquated legal concept that a daughter was the property of her father.

After his lawyer tried unsuccessfully to have the girls also charged, the defense sought statistics from prosecutors to support the claim that the boy was selectively prosecuted because of his gender. The District Attorney’s office refused, the boy’s attorney appealed to the SJC for direct appellate review, and the state’s highest court agreed to hear the case. In his appeal, the boy argued that the District Attorney’s office that prosecuted him for statutory rape, and not the girls, did so selectively, and as a result discriminated against him illegally. The court ruled that such selective prosecution, based on gender discrimination, was indeed possible in this case, and ordered that the Plymouth County District Attorney’s office turn over statistics revealing how many cases of statutory rape it has prosecuted in cases of consensual underage sex, and how many of those cases involved prosecution of just the male participant(s), and not female participant(s).

This is serious business. This boy is charged with nine criminal charges, three of which are for statutory rape, and the remaining for other sex acts not involving sexual intercourse. If he is convicted of any of these charges, he may have to register as a sex offender with the Massachusetts Sex Offender Registry Board. In my professional opinion as a Massachusetts criminal defense attorney, this ruling is long overdue, and will give similar District Attorney’s offices in Massachusetts justifiable pause before charging only boys in similar cases, when it is clear that the alleged sex was consensual on the part of both participants. To charge and prosecute only boys in such cases is patently unjust, inequitable, and discriminatory. These ancient and outdated laws are based on the groundless notion that girls under the age of 16 are not capable sexual actors the way that boys are perceived to be. This is 2009. Laws involving statutory rape should either be applied equally to both genders, or taken off the books and replaced with what are known in lay terms as “Romeo and Juliet Laws”. Such laws, which exist in 38 other states, treat consensual sex among teenagers far less harshly than in Massachusetts. Massachusetts legislators should wake up to the realities that a great many teenagers under the age of 16 always have engaged in voluntary, consensual sex, and – like it or not – always will. To treat these events as major sex felonies, a conviction of which could ruin a young person’s life, is patently ridiculous, in my view.

Memo to the Massachusetts Legislature: Reality called. Wake up and update these outdated laws.