Boston Criminal Attorney Blog

Here’s an interesting decision handed down from the Massachusetts Appeals Court recently. Seems a Barnstable District Court judge overstepped his authority in 2007 when he unilaterally upgraded, or beefed up, the charges that the Commonwealth had tried a defendant on involving a 2006 motor vehicle fatality on Cape Cod. The Cape and Island District Attorney’s office had charged the defendant, Gerard Williams, of Cotuit, with vehicular homicide while operating under the influence of alcohol, and also charged him with a separate count of operating a motor vehicle to endanger. After a jury-waived bench trial before Barnstable District Court judge Don Carpenter, the judge found the defendant guilty on the charge of operating a motor vehicle to endanger in the death of William Armstrong, 43, of Hyannis.

Armstrong was killed when his motorcycle collided with Williams’ car on Route 28 in West Yarmouth. On the more serious charge of vehicular homicide while operating under the influence of alcohol, the judge found Williams not guilty. This was chiefly due to the fact that the defendant’s .079 blood alcohol level – a fraction below the .08 legal limit for driving, as well as his four failed field sobriety tests – were ruled not admissible as evidence.

Citing his opinion that the defendant drove negligently in causing the accident, the judge decided to add a new, separate offense of negligent motor vehicle homicide, to the underlying guilty finding of operating to endanger conviction, and sentenced the defendant based on that new charge and finding. One reason that’s so important? On the “operating to endanger conviction,” a drivers’ license is typically suspended 60 days. Upon a conviction of motor vehicle homicide, drivers’ licenses are suspended for 15 years.

The three-judge Appeals Court panel found Carpenter’s change in the charges to be substantive because, among other reasons, the new vehicular homicide statute carries a more severe maximum sentence. Based on that finding, the panel found Carpenter was “without authority” to make the change.

So the Appeals Court’s message to lower court judges seems to be: While a hotel or an airline can make unilateral “upgrades” on their own, judges, thankfully, can’t.

When will this end?

Recently, a handful of cities and towns in Massachusetts have begun efforts to develop municipal ordinances and bylaws that would punish public possession of an ounce or less of marijuana, above and beyond the state civil fines that were approved in the November 2008 ballot measure that decriminalized possession of an ounce or less of pot. That measure (Question 2 on the November 2008 ballot) was overwhelmingly approved by state voters, by a 2 to 1 margin. That measure made possession of an ounce or less of pot a civil offense punishable by a $100 fine, with minors required to attend a drug awareness program. It also requires forfeiture of the pot found on the person. Yet some opponents, including law enforcement officials, claim the law is “poorly written” and unenforceable. I find this claim to be specious at best, and far more likely generated by the law enforcement community’s resentment that the public took away some of the powers that they had before pot was decriminalized through this ballot initiative. But the result has been that some cities and towns, with the encouragement of Police Departments, have begun to craft their own bylaws and ordinances to add their own, local, fines for public possession of an ounce or less of pot. Defenders of the new state law fear these efforts might presage a wider effort toward recriminalization. I don’t blame them.

As a Massachusetts drug offenses defense attorney, it was in my economic and professional interest to oppose the ballot initiative decriminalizing pot. But as a lawyer, a former Special Assistant District Attorney and taxpayer, I can’t support arguments to keep this a criminal offense. Tens of millions of dollars were wasted each year in this state, in the arrest and prosecution of a victimless “crime” that many respected authorities consider to be of an extremely minor nature. The new law retains all the punishments for driving while under the influence of pot, as it did before, and as now justifiably apply to driving under the influence of alcohol or any other drug. The new law retains all the previous penalties and punishments for trafficking and distributing large amounts of the drug as it did before. The new law requires minors to attend a drug awareness program and requires anyone fined, to forfeit the pot they might have on their person. A national organization of present and former law enforcement professionals, Law Enforcement Against Prohibition (LEAP), publicly supports decriminalization of an ounce or less of pot, publicly testifying that hundreds of millions of taxpayer dollars are wasted each year, on an offense that is extremely minor.

Why can’t these opponents of reasonable, measured reform, who are now spending so much time, effort and money to find an “end-run” around the new state law, put away their “chicken little” scripts, and devote their attention to obviously far more serious public safety problems in our midst? Problems like violent crimes, victims of abuse, and homelessness? Why can’t they open their eyes and see that Massachusetts is not the first state to decriminalize marijuana possession – 12 others have done so – all without experiencing any of the dramatic “sky is falling” consequences promised by opponents?

Memo to police departments and the Chicken Little crowd: The sky is not falling, and it isn’t going to. We have bigger and far more serious crime and punishment problems to tackle. So let's do it.

Friday the 13th proved to be definitely not a good day for former Massachusetts House Speaker Tom Finneran. The Massachusetts Board of Bar Overseers (BBO) formally issued its long-awaited decision today, regarding the former Speaker’s future ability to practice law in Massachusetts.

The 12-member board, eight of whom are lawyers, recommended complete disbarment. Only one board member voted to impose a lesser sanction, the two-year suspension previously recommended by the board. That vote was cast by Erik Lund, who wrote that “The circumstances in which Mr. Finneran’s felonious conduct occurred should lead to a lesser sanction than that of disbarment.”

As I blogged on previously, Finneran’s license to practice was suspended for two years in 2007 after he pleaded guilty to obstruction of justice by giving false testimony in a federal lawsuit over his role in a 2002 legislative redistricting plan that diminished minority voting clout. This disbarment recommendation is the result of Finneran’s decision to appeal that Board’s two-year suspension recommendation. Contesting his appeal, the Board’s Office of Bar Counsel, which prosecutes attorney misconduct cases, responded by recommending his complete disbarment, and they won the day. Separately, in December 2008, Finneran also requested that President Bush issue him a pardon before Bush left office. Bush declined to act on Finneran’s application. As I wrote of previously, Finneran doubtless hoped that a Presidential pardon would elevate his chances in his appeal of the Board’s previous two-year suspension. No dice.

In its decision, the Board wrote that “The purpose, but fortunately not the effect, of his false testimony was to impede the claim and to obscure his own role in the development of the illegal plan,” the board wrote in its decision. “Disbarment is the presumptive discipline for a lawyer who is convicted of a felony or a crime involving obstruction of justice of false swearing.” Unbelievably, Finneran’s chief answer or ‘explanation’ to the false testimony charge was to say that an arthritic hip was bothering him, and that he was concerned over his wife’s own orthopedic health condition. I was stunned that this is the best response that he and his lawyer could come up with. Really, I was. Finneran is an extremely bright man. I can’t believe he thought these types of anemic, hollow answers would succeed in his appeal.

While formally speaking the Board’s recommendation is just that - a recommendation – the state Supreme Judicial Court has the final say here, as only it can disbar an attorney - I highly doubt they will not adopt this recommendation. Hence, there is, theoretically, still a “chance” that the SJC will disagree with the Board’s recommendation, and impose a lesser penalty on Finneran. Because of this, Finneran has publicly stated that he plans to appeal the recommendation to the SJC (which would be before a single justice of the court.) But I wouldn’t bank on it.

This is all really too bad. Finneran is an extremely bright man who by most accounts (except those of radio talkmeister Howie Carr, who ironically is a colleague of Finneran's at WRKO-AM 680, as Finneran is the morning drive-time host there) is a good guy. But its almost axiomatic that most ‘good guys’ lose their moral bearings when they walk the halls of power. Now he will be permanently identified with a couple of age-old saws: One, “How The Mighty Fall”, and two, that age-old warning from Lord Acton: "Power corrupts, and absolute power corrupts absolutely."

A Norfolk County Superior Court jury convicted Ryan Bois, 22 on Thursday March 12 of raping and killing his 6-year-old cousin, Joanna Mullin. The jury rejected his attorney's claim that Bois was insane and "tortured by demons" when he committed the crime. Bois was found guilty on 10 of 13 counts, including two counts of rape and one count each of kidnapping and home invasion as part of the murder. Judge Janet Sanders commented this case has been “the worst” she has seen in her 14 years on the bench. As she is required to under Massachusetts law, Sanders sentenced Bois to two life terms in prison without the possibility of parole.

The jury convicted Bois after eight hours of deliberation, and followed a dramatic display by Bois earlier in the week, when he claimed he could not enter the courtroom due to emotional distress.

Prosecutors from the Norfolk County District Attorney’s Office argued that Bois broke into his grandmother's house in Weymouth and raped and strangled Joanna Mullin, who was having a sleepover there in August 2007. The prosecution argued Bois broke into the house to steal money, and when Joanna Mullin caught him, he killed the girl to cover it up. Bois then wrapped the girl's body in a quilt and stole his grandmother's SUV. Police found the girl's body inside the SUV after Bois led them on a high-speed chase, and then crashed the vehicle into a taxi in Quincy.

Bois' defense attorney, Beverly Cannone, argued her client was not legally responsible for killing his cousin because he was mentally ill. It was the only “viable” defense available, but as a Massachusetts criminal defense lawyer, it was pretty clear to me it wasn’t going to work Under state law, a conviction of first degree murder is automatically appealed to the state Supreme Judicial Court, but I highly doubt this appeal will go anywhere, in terms of being overturned. Like in last summer’s highly publicized case of Commonwealth vs. Entwistle, the prosecution was meticulous in its case here. I don’t see any procedural or substantive flaws of the type or nature that would mandate the SJC reversing this verdict, or ordering a new trial.

Here’s a sobering thought: A shocking one in 24 Massachusetts adults were either in jail or under probation at the end of 2007, according to a study released earlier this week by the respected Pew Center on the States. The report, entitled “One in 31: The Long Reach of American Corrections,” analyzed prison populations at the federal, state and county level. The study ranks Massachusetts as being fifth in the nation when measuring the number of adults that are either incarcerated (in both state and federal prisons in Massachusetts), or under probation or parole. The cost to Massachusetts taxpayers: A stunning $1.25 billion (yes, that with a “b”.)

“In any year, spending $1.25 billion dollars on corrections is stunning. In a fiscal crisis, this kind of spending is unacceptably foolish. If finances is what finally moves the state to revamp its correctional policies, so be it,” said Leslie Walker, executive director of Massachusetts Correctional Legal Services. But while Massachusetts ranks fifth overall, we rank even higher when measuring parolees and probationers living in the community, vs. incarcerated in jail or prison. On that score, Massachusetts had the third highest rate of probation supervision, with 1 in 28 adults or 179,854 people answering to parole and probation officers at both the state and federal level.

But what to do about this overall problem? According to this study, parole is a more cost-effective way of monitoring offenders, reporting that it costs $130.16 to incarcerate an adult for one day. That same figure pays for 18 days of parole supervision in the community, the report said. The Pew Center said that for every dollar Massachusetts spent on prisons in 2008, it spent four cents on parole. The Pew report affirms state Department of Correction figures that indicate an exploding prison population. As proof, last year, the state began installing bunk beds in single cells at the maximum security Souza-Baranowski Correctional Center in Shirley to address system wide overcrowding.

By comparison, in 1982, one in 127 adults were involved in the Bay State correction system, the Pew report found. If we wish to continue to incarcerate people at this rate, we will have little choice but to build more prisons in Massachusetts, and fast.