Boston Criminal Attorney Blog

In my previous post on this story, I said I’d explain more what the insanity defense is and isn’t. Aside from the possibility that this defendant may have committed two murders over 23 years ago and had been walking around scott-free until this parental kidnapping charge, this whole story doesn’t merit an asterisk in a conversation.

That being said, Gehartstreiter’s (or, as he’s been referred to elsewhere, “Whateverhisname’s”) defense lawyers are going to have one hell of a hard time convincing a jury that this defendant was legally insane to the point where he should be acquitted of this charge. The reason for this is that, in order for a jury in Massachusetts to find a defendant “not guilty by reason of insanity”, it must be proven beyond a reasonable doubt that the defendant was not just mentally unstable, but so mentally ill that he or she could not comprehend or understand the criminality of his conduct, or comprehend the difference between (legally) right and wrong. As a Massachusetts criminal defense lawyer, I don’t doubt that Gehartstreiter’s lawyers can demonstrate the Gehartstreiter suffers from Narcissistic Personality Disorder, or that he harbors delusions of grandiosity. The defense’s psychological experts can make that clear fairly easily (as could reportedly almost anyone who has spent ten minutes with this defendant.)

But insane to the point of not recognizing or understanding the criminality of his conduct in crafting an elaborate plan to abscond illegally with his daughter, assaulting his daughter’s social worker, then crossing multiple state lines in an attempt to avoid capture? A single juror's simple question: If he were so insane that he didn’t comprehend the criminality if his conduct, why the elaborate escape plan to run and hide?

Gehartstreiter’s defense team (ever recognize how losers like this guy – recall OJ – always have not just one defense lawyer, but defense “teams”?) will do their best, as they are ethically and duty-bound to do. But in my professional opinion as a Massachusetts criminal defense attorney, they shouldn’t hold their breath.

And neither should the rest of us.

I thought awhile about posting something on the Clark Rockefeller trial here in Boston. (I posted previously about this case, and recently considered that perhaps I should omit further attention to it.) Part of me says that this is an overblown, media-driven case that is no different from dozens of other similar cases of “parental kidnapping” and criminal defense. But then, such could be said of almost any case or trial reported in the media: Few of them are dramatically different than the vast majority of similar criminal cases that run through the courts every day. What makes a case a “media case?” Pick one: a) Celebrity; b) Upper-Class murders and sex crimes or violent crimes (something too many people falsely think is antithetical); c) Sex; d) Con-artists and “The Con”; d) Graphic brutality; e) Sex; f) Sex; g) Sex, and so on.

Judging from the majority of posted comments to the Boston Globe’s website (which has been covering the story extensively, and has published over 100 reader posts on this subject on its website to date,) the Globe’s readership seems to feel that this case is, to quote Shakespeare, “Much Ado About Nothing.” Here is a sample of recently posted reader comments to the Globe:

• “I don't get why this case grabs headlines. Whateverhisnameis got a raw deal from divorce court and wanted more time with his daughter. He's got plenty of company with the thousands of other men in Massachusetts who get the short end of every divorce in this state. But if he didn't have a funky name that he changed, as many legal immigrants to this country do, this would be just another domestic case resulting from a bad probate court decision. Let Whateverhisnameis off with the crazy defense and focus on the real problem, men all over the Commonwealth suffering from one-sided legal decisions.” Posted by Andrew Palmer May 28, 09 08:56 AM
• “No one cares about this story. Once the girl was returned safe, that was it. Enough of this loser.” Posted by CB May 28, 09 09:01 AM
• “I think Single Dad has missed the point. As a father I can tell you this is not an issue of "fathering." This is about an evil individual putting his needs above those of his child. This may also be about a profoundly dangerous individual continuing his pattern of anti-social behavior...” Posted by Lorne D. Gilsig May 28, 09 09:35 AM
• “I’m still trying to understand why the media thinks this is a “major story.” Posted by Slim Pickens May 28, 09 09:39 AM
• “It grabs headlines because he's suspected of murdering a couple while living in California.” Posted by Brad May 28, 09 09:29 AM

“Brad’s” observation, above, comes half-way closest to the truth. The unsolved murders over twenty years ago of a married couple that Gerhartstreiter, a/k/a Rockefeller, or (as one Globe reader has dubbed him, “Whateverhisnameis”) rented an apartment from, and who are thought to have been murdered, is an unsolved case, a cold case that never really went anywhere in terms of suspects. Mix an unsolved mystery with the Upper-Crust exterior and elite life that someone with (allegedly) the name of “Rockefeller” has lived, add “The Con,” and you’ve got the perfect mix for a media case. How many murders do you think have involved spouses? If you answered “too many,” you’d be right. Sadly, they’re far too common. Yet it was the trial of Claus von Bulow, accused of murdering his wife Sunny von Bulow for millions in inheritance, that captivated the world and led to a major film, “Reversal of Fortune,” starring Glenn Close, Jeremy Irons, and Ron Silver. The story line? Wealthy Sunny von Bülow lies brain-dead, husband Claus guilty of attempted murder. A Harvard Law professor comes to his defense… That case provided the perfect mix of Upper-Crust elite, Murder, “The Con,” and Celebrity.

Standing alone on the charge of parental kidnapping, does this case merit the attention it is generating? Absolutely no – not on that charge alone. But be aware: This man has not been held in jail without bail for the past nine months because of that charge alone. If that were the one and only charge he faced, the public would have never heard his name, and he would very likely have been released with modest bail, soon after his arrest. This trial is not about simply the charge of parental kidnapping, of a daughter no one has disputed that he loves very much. It’s about getting to the bottom of much darker crimes. And in that sense, perhaps it merits our attention – if only to provide hope to the surviving victims of hundreds of other unsolved crimes across the country, that cold cases can be solved.

Is “Whateverhisnameis” a con man? Yes to that in my view. Is he a loser? Yes again. Is he a murderer? Quite possibly. But he’s raised an insanity defense to this kidnapping charge. Hence the salient question: Is he legally insane? I’ll discuss that defense, in my next post.

In my previous post on this subject, I discussed the recent Supreme Judicial Court ruling that persons found to be in illegal possession of a firearm in Massachusetts can no longer be held in jail prior to trial, based on the grounds that such persons present a danger to the public. This ruling has caused a lot of controversy in the legal community, and justifiably so. Very predictably, the opinions on the ruling run straight down the liberal-conservative divide: The “get tough on crime” conservatives feel (with a fair amount of good reasons) that anyone who illegally carries a gun is almost certain to be a violent criminal (commonly gang members,) and that violent criminals should locked up so that the rest of us are made more safe. The liberal bloc, often characterized as “soft on crime,” feel that law enforcement and the courts shouldn't’ wield this kind of power to lock someone up so easily without that person first committing any violent crime. (Liberals are also often characterized as advocating that criminals should be rehabilitated, not incarcerated. Depending on the nature of the crime(s) involved, this is often a very valid and sound argument.)

So who’s right? Is this ruling by the SJC good for the residents of Massachusetts, or not?

Think about it: The conservative view has its logic: If someone is carrying a concealed and unlicensed weapon, they’re almost certain to be a dangerous criminal, and it is a logical and reasonable conclusion that such persons present a danger to the public -- the very type of "dangerousness" that this statute contemplates. But what about the liberal view? If someone bought a firearm solely for the purpose of self-protection and not for the purpose of committing any crime, and then for some reason neglected to secure a Firearms ID Card (otherwise known as an “FID Card”,) and a police officer discovered it, should that person be locked up in jail prior to trial? Before answering, consider: Under Massachusetts law, mace and pepper spray are considered “firearms”. If the SJC had delivered an opposite ruling in this case, and a law-abiding person were to carry pepper spray solely for self-protection (against the risk of sexual assault, murder, or other violent crimes,) and were found by police during a traffic stop to not possess a valid FID card, that person could be thrown in jail, without bail -- without first committing any violent crime. Is that fair or just?

Writing for the majority on the court, Justice Francis X. Spina wrote that the relevant statute, M.G.L. Ch. 58A, does not include illegal gun possession on the list of criminal charges that qualify for the “dangerousness hearing” that several District Attorneys’ offices were using to hold such suspects in jail, pending trial. In the ruling, the court also rejected the argument that a catch-all phrase included in the statute gave prosecutors the legal authority to demand dangerousness hearings for dozens of criminal defendants in the past several years. "While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime," Spina wrote. "It is passive and victimless." Spina added: "That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result."

Five of the court's seven justices heard the case. In a stinging, lone dissent, Justice Judith M. Cowin ridiculed the court's conclusions, saying the ruling ignores the reality that illegal guns are at the heart of crime in the state."When a handgun or automatic weapon is involved, the purpose of the firearm is to injure or kill; there is no other reason for that weapon's existence," Cowin wrote. "We have recognized in various contexts that firearms are, by nature and design, dangerous instrumentalities." The majority, Cowin wrote, "reduced to its minimum, is simply a reiteration of the tired slogan that 'guns don't kill people, people do.' We know this to be a dangerous oversimplification. The fact is that people kill people with guns, and in a substantial number of cases those guns are unlicensed."

Contrary to the position many people would expect me as a Massachusetts criminal defense attorney to hold, I agree with Justice Cowin’s dissent. I find the majority’s opinion lacking in reason and logic. In my view, to write “That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result”, strains credulity and fails to incorporate simple logic, and ignores the realities of human behavior. It is an overly-pedantic exercise in illogic.

Commenting on the SJC ruling, the District Attorney who brought the challenge, Bristol County District Attorney C. Samuel Sutter, rejected the majority's thinking. "They are not as closely connected to the reality of urban, violent firearms crimes as I am," said Sutter, who noted that holding gun violators without bail before trial has resulted in a reduction of “Shots Fired” police reports by 25 percent in Taunton, 34 percent in Fall River, and nearly 40 percent in New Bedford since 2006, when he was elected and began employing this statute. ("Shots Fired" reports refer to police dispatchers sending officers to the scene where gunshots have been heard or witnessed.) Translation: Sutter was saying that because of his get-tough incarceration policy on gun violators, the sheer number of gunshot reports in his county declined dramatically since he began using this statute. I find that both impressive, and persuasive on this argument.

Surprised that I would agree with this position? Don’t be. While I firmly believe that everyone accused of a crime has the right to a full and vigorous defense - and while I zealously fight for every client using every legal tool and technique available to that client, I am also a realist. If someone’s carrying around a concealed, illegal weapon, there’s a reason that person is doing that. The reason involves violent crime, and that’s a danger to everyone. That defendant is entitled to a zealous defense on the charge, but law-abiding citizens of the Commonwealth are also entitled to be protected from violence the results from unregistered weapons.

That position may not make me popular among some of my more civil liberties-oriented colleagues at the criminal defense bar, but I believe it reflects the realities of the world we live in. And I don't want someone I care about, shot or worse because of short-sighted and pedantic legal reasoning.

In a classic liberal-conservative split, a recent Massachusetts Supreme Judicial Court (SJC) ruling has held that persons who are found to be in illegal possession of a gun or firearm cannot be held in jail pending trial. The ruling is important because many such defendants have been held pending trial, under a state law passed in the 1990’s that was designed to curb domestic (i.e., family) violence. That law, known as the "Dangerousness Statute" was initially enacted as a way to cut down on domestic violence by giving prosecutors and judges the power to hold someone who had only a minor criminal record, but was considered a threat to a spouse or significant other.

After its passage, some District Attorneys’ offices in Massachusetts began to use the Dangerousness Statute to argue that illegal possession of a gun or firearm constituted adequate “dangerousness” to the public, to satisfy a motion to hold the gun violator in jail pending trial. Some District Attorney’s offices saw in the statute, a new tool to rid the streets of violent offenders who are found by police to be carrying a gun illegally. (It will surprise no one that, typically, violent offenders do not carry firearms licenses, or "FID Cards".) In a 4-to-1 ruling earlier this week, the SJC ruled that gun possession violators can no longer be held in jail under this statute, while awaiting trial. In an extremely controversial decision, the court ruled that illegal gun possession is a "passive and victimless crime." The court ruled that persons charged with possessing illicit firearms can no longer be held without bail (under this particular statute) as a "danger to society." (Note to the Justice Spina: While perhaps technically accurate, using the words "passive and victimless crime" to describe the carrying and concealment of an illegal gun, is not exactly the wisest of grammatical choices. And I say this as a Massachusetts criminal defense attorney.)

While several District Attorneys’ offices had used the statute for holding such defendants without bail, it was the office of Bristol County District Attorney C. Samuel Sutter which used it the most. He did so as part of his get-tough law enforcement strategy to cut down on gun violence, by seeking pretrial detention for every person charged with illegal gun possession in his jurisdiction, which includes the high-crime area of New Bedford. His office used it as standard procedure in all illegal firearms arrests, and since taking office, Sutter has sought 269 gun detention cases and prevailed in 163 of them. The case went to the high court after a lower court refused Sutter's request to hold several suspects on gun charges without bail for 90 days, and Sutter appealed to the SJC. In practical terms, the high court in this case was acting to end confusion among judges: In Bristol County, a Superior Court judge refused to apply the law to one defendant found to be illegally carrying a gun, while a Taunton District Court judge concluded the statute did apply to another defendant charged with the same crime.

Predictably, this ruling has caused a storm of controversy. I’ll talk about that in my next post.

The Supreme Judicial Court (SJC) handed down a very interesting ruling recently, that will widely impact how suspects who are accused of sex crimes can be monitored when they are on release pending trial. The court recently ruled that suspected sex offenders cannot be ordered by a judge to wear a GPS tracking bracelet while they are awaiting trial. The ruling is important because previously, the Commonwealth could file and argue a motion before a judge at a defendant's arraignbment, requesting that a suspect released before trial be ordered to wear a GPS tracking bracelet, so that police and authorities could monitor his/her whereabouts prior to trial. A law passed in 2006 specifically allowed this motion, and it has been used in many pre-trial cases involving sex crimes since then. However, the SJC recently ruled that the law was intended by the Massachusetts Legislature to apply only to convicts who have been placed on probation after being convicted of certain sex crimes, not to those who are merely suspects. The GPS law was challenged by a man who had been placed on pretrial probation by a New Bedford District Court judge after he was charged with indecent assault and battery on a child under 14 as well as disseminating obscene matter to a minor.

A lot of people, especially advocates for victims of sex crimes, are understandably upset by this ruling. It is not uncommon for someone accused of a sex crime to be released on pre-trial probation, and without any means to monitor such a suspect, he or she is effectively released back into the community, where they may possibly re-offend. On the other hand, a person can be innocent of a crime they are accused of. Not everyone charged with a crime is guilty of that crime; people are often accused unjustly. In such a situation, it can be humiliating and onerous to be forced to wear a GPS tracking bracelet, 24/7. It is effectively a “Scarlet Letter”. This can be a tough issue. I’d like to know what my readers think about this issue. Email me at: bill@kickhamlegal.com, and let me know your thoughts.

In my previous post on this subject, I discussed how circumstantial evidence obtained by police can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. But why is the charge “murder” here, and not something lesser? Technically, Markoff is being charged with a violation of Massachusetts General Laws Chapter 265, Section1, which defines the crime as follows: "Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree."

Do police investigators and the Suffolk County District Attorney’s office believe that this was a pre-meditated murder (such as with the recent Massachusetts case convicting Neil Entwistle? Not likely.

Instead, Markoff is being charged with murder almost certainly because of what is known as the “Felony Murder Rule”. This legal maxim provides that a charge of murder will apply if a death occurs during the commission of a felony (think of a bank robbery.) When this happens, the homicide can be considered first degree murder, without establishing intent to kill. This rule "injects" the malice element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged underlying felony, and the death must have resulted from the "natural and probable consequence of the felony." Again, the prosecution doesn't have to prove intent to kill; only that a death resulted during the felony, or during the attempt to commit the felony. Here, Markoff was allegedly in the act of kidnapping and robbery of the victim when the death occurred, hence the charge of murder. I’m told by persons close to the investigation that so far, prosecutors do not believe that Markoff intended to kill the victim, but that the shooting and death resulted when the victim resisted the robbery.

That doesn’t change the legal reality for Markoff. If a jury finds him guilty of first degree murder, the mandatory sentence for this conviction in Massachusetts is life imprisonment without the possibility of parole. Looking ahead, it’s possible that a jury could find Markoff guilty second degree murder. The difference between a first and second degree murder verdict is that, for a second degree felony murder conviction, the underlying felony must carry a penalty of less than death or a life sentence. In Massachusetts, a second degree murder conviction carries a maximum sentence of life imprisonment with the possibility of parole after 15 years. Another major difference from first degree murder felony murder, is that a defendant charged with second degree can waive the right to a jury trial, and argue the case before a judge. This is otherwise known as a "bench trial."

Another possibility is that Markoff could be found not guilty of the murder charge, but found guilty of a lesser-included offense. As hard as it may be, remember: Our system provides that until convicted, the law presumes an accused to be innocent.

In the past ten days or so, I’ve been asked by more than one person why accused “Craigslist Killer” Phillip Markoff has been charged with murder, and not a lesser crime, since there are not currently any witnesses who say they actually saw what happened. The formal charges against Markoff are murder of Julissa Brisman of New York City (on April 14 2009) and armed robbery and kidnapping of an additional victim on April 10, 2009 at the Westin Hotel in Boston's high-end Copley Place. Is it not possible, some ask, that even if Markoff was the person who struggled with the murder victim, Julissa Brisman, and fired the gun that killed her, he may have been acting in some kind of self-defense? How can the police know enough to charge him with the most serious of homicide crimes, when they don’t have a witness?

The answer is that circumstantial evidence can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. A suspect like Markoff is not at all prevented from advancing any particular defense he wishes (including self defense,) but that doesn’t mean a jury or judge would ever accept it as plausible. (Parenthetically, a defense invoking self-defense isn’t likely here, and would almost certainly fail, as the victim wasn’t armed, was shot three times and bludgeoned in the head. She weighed about 100 pounds; Markoff is over six feet tall and easily weighs 160-170 pounds.)

The earlier victim of kidnapping and armed robbery on April 10 2009 at the Westin hotel, later identified Markoff from hotel surveillance tapes. Police said they discovered forensic computer evidence showing that emails were sent from Markoff’s computer in his Quincy apartment to the victims, as well as forensic evidence of text messages sent from Markoff’s cell phone to the victims. Investigators also found plastic ties in the search of Markoff's apartment, and several pair of women’s underwear that Markoff allegedly took from his victims. Notably, despite the discovery of this underwear, none of Markoff’s alleged victims were sexually assaulted. Police have alleged that Markoff booked appointments with prostitutes and “masseuses” who advertised on Craiglist, not to sexually assault them, but to rob them at gunpoint for cash to feed a gambling habit that he had. Investigators theorize that Markoff (logically) assumed that a) High-end, “private” prostitutes who book luxury hotel rooms for services likely carry large amounts of cash; b) In a locked hotel room, there would be no witnesses to the robberies; and c) No prostitute was going to fight a man with a gun, nor, more importantly to the plan, report the robbery to police. Logical enough thinking, if you’re a criminal. But police and prosecutors theorize that everything went wrong and ended in murder when Brisman tried to resist Markoff from robbing her and tying her up.

I’ll have more on why the legal charges are what they are here, in my next post.