Boston Criminal Attorney Blog

How I wish I could write more of positive news in this blog. Unfortunately, as my law school professors used to tell me, “It’s bad cases that make good law.”

Along those lines, this next case illustrates the definition of murder in Massachusetts, and when someone is “dead.” Nathaniel Turner was a 7-year-old boy who by all accounts was a pleasure to be around. According to those who knew him well in his hometown of Eufaula, Alabama, the 7-year-old liked to stay home and play in the yard. In school, He was an excellent student at Eufaula Primary School, whose school principal Suzann Tibbs, now thinks of his smile: “The smile in the picture - he has it all the time,” she said of a recently-taken photo. He was raised by his grandmother Chrissy Taylor, from the time he was born. Now, it seems, that promising life is ended. Far too young, and far too cruelly. Nathaniel was declared “clinically dead” Tuesday June 23, 2009 by doctors at UMass Memorial Medical Center after he was allegedly beaten by his father, Leslie G. Schuler, on Father’s Day.

The 36-year-old Schuler now faces multiple charges, including several counts of assault and battery and assault with intent to murder. News sources, including The Worcester Telegram & Gazette, are reporting that Schuler allegedly slammed Nathaniel’s head into a wall on Father’s Day. It was reportedly the latest in a series of abusive acts that have occurred since Nathaniel was ordered by a court to spend the summer with his father. A Massachusetts Juvenile Court judge is expected to rule soon whether Nathaniel will be taken off of life support at UMass Memorial Medical Center University Campus.

How a 7-year-old could be placed in such an abusive situation is disturbing. According to the Worcester Gazette-Herald, Schuler was also charged with a 2006 assault stemming from an alleged attack of a man with a pipe. Schuler has reportedly paid child support for three years according to the Boston Herald, but this summer was apparently the first time that Nathaniel has spent this much time with his father in Massachusetts. Family members stated that Nathaniel did not want to leave his hometown of Eufaula, Alabama for the summer. The boy had allegedly been abused both physically and mentally by his father for several weeks, according to media reports. Schuler’s girlfriend, Tiffany Hyman, 28, allegedly watched the abuse take place. She was charged with two counts of assault and battery on a child causing serious bodily injuries. Schuler has been held on $250,000 cash bail and Hyman on $50,000.

Is this a horrid case of child abuse, or murder? As the murder section of my web site makes clear, at present, in Massachusetts it has been ruled by the Supreme Judicial Court that death essentially occurs when a patient exhibits no spontaneous respiration, when no positive electroencephalogram (EEG, or brain waves) exists for a period of 24 hours, and when the patient does not respond to painful stimuli. Together, these factors constitute brain death. Hence, were someone to walk into a hospital room and unplug the respirator from such a patient, there would be no "murder." Tragically, that seems to be the case for Nathaniel Turner. If so, Leslie G. Schuler, his father, will stand trial for murder or manslaughter. If convicted, one can only hope that his mental torture that haunts him from this act will last each day he is in prison, and for the rest of his life. I say this as a Massachusetts murder defense lawyer, who believes that each defendant should receive a strong, vigorous legal defense in court. Schuler deserves no less under our system of justice, like anyone else accused of a serious crime. But if the evidence convicts him, I hope he suffers long and hard. And I say that, as a man of conscience.

As the Enterprise News made clear in an editorial last week, change begins with telling the truth. And the truth on this subject – the glaring truth – is that drug crime polices, both in Massachusetts and across the nation – have been essentially a complete failure, and a waste of hundreds of millions of dollars in law enforcement, prosecutorial and judicial resources.

The report I’m referring to, released Thursday June 18 2008 by the Massachusetts Bar Association, places the truth front and center. The report's title: “The Failure of the War on Drugs.” This study, which is the result of more than a year's work by a task force of respected lawyers, law enforcement and mental health professionals, comes to the conclusion that state politicians have almost universally ignored: Massachusetts’ drug laws and policies, like so many other states, are “wasteful, ineffective and cruel.” As a Massachusetts drug offenses lawyer, I can attest to the accuracy of that conclusion.

Among the task force’s findings:

• Drug ‘education’ programs fail to teach anything useful and show no signs of preventing drug abuse;
• Addiction treatment programs are underfunded and out of reach of those who need them most.
• Incarceration isn't an effective deterrent to drug use or to recidivism, and never has been.
• Most of those who are imprisoned for drug-related crimes receive no treatment and, thanks to mandatory minimum sentencing laws (which I’ve blogged about previously,) receive no post-release supervision.

Does anyone wonder so many ‘offenders’ them find themselves behind bars again?

Even those who don’t tolerate alcohol or drugs should care about the massive public finances and judicial resources wasted on policies that don't work. Between 1980 and 2008, the state's prison population rose by 368 percent and the county jail population grew by 522 percent. Why? Largely due to mandatory minimum drug sentencing laws, that’s why. Believe me: I’ve seen the most inoffensive people, who might have been caught selling a small amount of marijuana to a friend within 1000 feet of a school, go to jail in a heartbeat as the result of these laws: People no more dangerous than you or me. Have mandatory drug sentencing laws like these reduced serious drug-related crime? You’d be a fool to think so. As a Massachusetts criminal defense lawyer, I can assure you they have not. I've seen judges shake their heads in regret at being forced (that's where the "mandatory" comes in - it takes away a judge's sentencing discretion) to sentence a non-dangerous, low-level frug offender to jail time.

What should be done? I’ll talk about that in my next post.

Here’s an interesting story about Massachusetts crime, which features (among other Massachusetts communities) a Cape Cod town near and dear to me, and where I own property: Wellfleet, Massachusetts.

It seems that without much public knowledge, and under the radar, several communities in Massachusetts that are not exactly known as hotbeds of criminal activity, have received high-powered and high-tech assault rifles and combat weapons from the U.S..military. Few people would question the need for or wisdom of having such weapons in large, urban police departments like Boston, Lawrence, Brockton or Springfield (not to disparage those communities, just to note that they are large urban cities that have seen more than their share of urban violence and gang warfare.) However, the sleepy summer resort community of Wellfleet, and the upscale town of Belmont?

Those towns aren’t alone in quietly receiving such assault weapons, either: At least 82 local police departments in Massachusetts have obtained more than 1,000 assault/combat weapons over the last 15 years, under a little-known federal program that distributes surplus guns from the U.S. military. At Salem State College, where recent police calls have included false fire alarms and a goat roaming the campus, school police received two M-16 military assault rifles. In West Springfield, police acquired even more powerful weaponry: two military-issue M-79 grenade launchers.

Military assault rifles? Grenade launchers? Is Massachusetts crime so bad that this type of firepower is needed by small, local police departments? More so, an inquiry by the Boston Globe found that most towns receiving these military weapons, did not notify their community of the acquisitions. Now that the story is out, a lot of people are asking legitimate questions. Asked Kevin M. Mullins, 25, who works at a Belmont bookshop, "Is this a war zone? "For what logical purpose do they need semiautomatic rifles in Belmont?" A resident of Wellfleet commented, "About the worst summer time crime that occurs here is that someone steals their fries along with a meal.” Many police departments take a different view, and say they are taking advantage of free weaponry in the event they might need it to ward off terrorists or stop a shooting rampage. In my experience as a Massachusetts criminal defense attorney, the potential need for that is pretty remote. Almost all murder, rape or sexual assault, drug offenses or assault and battery crimes can be dealt very effectively with the standard firearms that all police departments carry.

As a Massachusetts criminal defense lawyer, I believe that police departments should have the weapons they need to deal with the threat level they hisorically and typically face: A city like Boston, Brockton, or Lawrence (as examples,) face far more serious threats than a small, historically peaceful community (such as Wellfleet, Marblehead or Belmont, as examples.)

I’d be interested to know what my readers think. Fill out a Contact form on this blog, or email me at: bill@kickhamlegal.com.

As the Boston Globe has reported, recent high-profile accidents in the Boston area caused by elderly drivers, has raised a lot of discussion about the subject of elderly drivers in this state. Seven people were recently injured in Plymouth after a car driven by a 73-year-old woman jumped a curb and ran into a crowd gathered at a war memorial. It was the woman's third accident since turning 70, authorities said. In Danvers, a 93-year-old man recently drove his car into the entrance of a Wal-Mart, injuring six people, after he mistook the gas pedal for the brake. These incidents have caused a lot of people to re-think the idea that elderly drivers have a right to drive ‘just like anybody else.’

In my view as a Massachusetts criminal defense attorney as well as a Massachusetts personal injury attorney, that idea is plainly ridiculous. Simple deductive reasoning can expose this, if more people took the time to actually think about a problem as serious as this, before spouting out unfounded and unjustified opinions. Try to defeat this reasoning: Every state in the United States, including Massachusetts, legislates that persons under a certain age – usually but not always age 16 – are unqualified to operate a motor vehicle. Unqualified in what respect? According to almost all states, persons under age 16 lack the mental, emotional and developmental skills necessary to operate two tons of glass and steel on the public roads. Wisely and logically, we require that such persons be of a certain age or older before they can apply for a driver’s license and operate a motor vehicle on the public roads. That makes sense; it always has.

Yet on the extreme other end of the spectrum – when persons have reached an age that I think all reasonable people could logically conclude disqualifies them from operating a motor vehicle – we dare not say so. Why? Two reasons: 1) Because senior citizens have the right to vote – minors do not. (Hence, legislators in any state don’t care what minors think, but pay scientifically close attention to what elderly voters think. And 2) The numbers of those elderly voters are growing every day. The U.S. Census Bureau projects there will be 9.6 million people aged 85 and older by 2030, up 73% from today. Don’t think every elected state legislator and governor doesn’t have those numbers emblazoned in their minds.

Want visceral proof of this? Not one state has an upper age limit on drivers.

The political result? Barely anything is done, and seniors well into their 80’s and 90’s are behind the wheel in Massachusetts and across the country. In many cases, these unqualified drivers, who in their upper 80’s (and beyond) simply cannot physically possess the visual acuity or responsive motor skills needed to safely operate a motor vehicle, are just as dangerous as drunk drivers. That may sound severe, but it’s true. Road safety analysts predict that by 2030, when all baby boomers are at least 65, they will be responsible for 25% of all fatal crashes. For comparison, in 2005, 11% of fatal crashes involved drivers that old.

The aging of our population has resulted in more and more elders clinging to the independence that cars give them, but losing their ability to operate those vehicles, causing more accidents. Many of these accidents are fatal. Would the person who cares to be maimed or killed next please raise their hand?

Debates over how to deal with the growing problem of elderly drivers are resonating in statehouses across the nation. No single approach has developed, but Texas has proposed a measure that could lead to more frequent vision tests and behind-the-wheel exams for drivers 79 and older. As a recent piece by USA Today made clear, the only measure scientifically proven to lower the rate of fatal crashes involving elderly drivers is forcing seniors to appear at motor vehicle departments in person to renew their licenses. This has been documented by the Insurance Institute for Highway Safety (IIHS), citing a 1995 study in the Journal of the American Medical Association (JAMA.)

Safety and health specialists are especially concerned about drivers 85 and older, who, federal crash statistics show, are involved in three fatal accidents a day. And that’s where, notwithstanding the fact that I am a Massachusetts criminal defense lawyer and conscious of civil liberties, I draw the line. In my view, seniors from 79 to 85 should be required by Massachusetts law to be examined in person at an RMV, for the visual and motor skills necessary to operate a motor vehicle in Massachusetts. After reaching age 85, it should be deemed illegal to operate a motor vehicle upon a public road in Massachusetts. While I believe that the state legislature should enact such a law and that violation of such a law should be a crime, I do not believe that the penalty should incorporate jail time. Rather, there should be an escalating series of fines, from a first offense fine of perhaps $500, to several thousand dollars for multiple offenses.

Massachusetts public safety officials are fond of slogans: “Don’t Drink and Drive – Stay Alive”; Click It or Ticket.” (Seat belts.) My solution to the elderly driver problem: “It's The Law: If You’re Over 85, You Can’t Drive.” Persons over the age of 85 should be denied drivers licenses in Massachusetts. And for those who disagree, I’ll repeat my question: Would the person who cares to be maimed or killed next on the road, please raise their hand?

In my previous post on this topic, I noted that the Massachusetts Appeals Court has recently handed down a decision that changes the way the state Sex Offender Registration Board (SORB,) determines whether or not someone previously convicted of a sex offense, must continue to register as a sex offender indefinitely in Massachusetts.

Now, to the legal reasons why: The Appeals Court ruled the way it did here, based largely upon two legal concepts: “Retroactivity,” and “Due Process.” Of these two concepts, most people are more familiar with due process. This legal maxim, embedded in the United States Constitution and the Massachusetts Constitution, requires (very basically and broadly) that anyone subjected to a criminal proceeding be given notice and an opportunity to be heard as to the charges or proceedings against them. “Retroactivity” refers to the process of punishing someone in the present, based upon an unsupported inference or assumption that the person still poses a threat that the legal proceeding seeks to protect against. Retroactivity played a key role in the Appeals Court’s decision here, as the appellant’s offense, which SORB argued made him subject to its continuing registration requirement, was a single offense that took place almost 25 years ago. More important than that, there was compelling evidence that the incident was fueled by a drinking problem that has not existed for many years since the time of the offense, and there was strong evidence that appellant had reformed his life in many respects since that time.

In this case, the hearing officer at SORB found that Doe presented a "low" risk to reoffend and a "low" degree of danger to the public. Resultantly, she classified him as a level one sex offender (the least serious level) but notwithstanding, the finding subjected him to the continuing registration requirement as a sex offender. The court noted that in so finding, it could be argued that the hearing examiner based her reasoning on the fact that Doe had not shown that he presented “no” risk of re-offense or threat to the community. But the court found that this “inferential leap,” was not sustainable here where: a) such a finding was legally foreclosed by the sex offender registration statute; b) the record did not show that the hearing examiner considered the issue of his present risk level; and c) the hearing examiner, at the time she made her ruling, did not have the benefit of a prior Massachusetts Supreme Judicial Court (SJC) ruling preventing such inferential conclusions.

In view of these facts, the Court remanded the hearing back to SORB, ordering that the SORB hearing examiner must explicitly consider, and make written findings pertaining to, whether Doe currently poses a present risk of re-offense or present danger to the public. In its ruling, the Court noted that the Supreme Judicial Court has emphasized that retroactivity and due process concerns are implicated where registration is required solely based on the characteristics of an offense committed more than two decades earlier. In order to avoid retroactivity concerns, the court ruled that sex offender registration can be required only based on an assessment "of the person's current level of dangerousness and risk of reoffense" (emphasis added). Thus in this case, if upon reconsideration the hearing examiner again concludes that SORB has met its burden of showing that Doe presents a "low" risk of re-offense or a "low" risk of danger to the public such that he must register, the facts upon which that assessment is based must be specifically found, particularly identifying any facts that postdate the appellant’s offense, as well as the evaluative process used to balance the characteristics of Doe's offense against Doe's life for the past 25 years.

In addition, the court ruled that the explanation of that evaluative process “Should also include the basis upon which the hearing examiner concludes (if she does so) that any predictive value can be placed on Doe's 25-year-old offense, and to the extent that the offense has any predictive value, how that value is to be balanced and weighed against the totality of the other circumstances. These include, for example, the role alcohol may have played in the offense (and Doe's subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe's 25-year-old crime.”

The court emphasized that SORB's burden is to show that Doe presents a "cognizable risk of reoffense," not merely a hypothetical or speculative potential risk. The court’s ruling made clear that the term "low" must be given a reasonable interpretation; it should not be taken to mean "anything more than no."

Hence, while someone who is convicted or otherwise pleads guilty to a Massachusetts sex offense will be required to register as a sex offender with SORB, hearing officers at SORB will in the future be required to consider the petitioner’s “whole life” story, and specifically consider the recent and current state of that person’s broader life history, before requiring that he or she continue to register as a sex offender in Massachusetts.

Sex offenses in Massachusetts, or anywhere, elicit a strong reaction on the part of the public and the media – and understandably so. This is especially true when the offenses involve children or the vulnerable – again, with good reason. Wisely, we in Massachusetts (and other states also) have enacted laws requiring persons convicted of sex offenses to publicly register as sex offenders with a special agency that monitors such convicts, following their conviction and/or release from prison. But how far should the law go when dealing with someone who has been convicted of a single sex offense, which involved substance abuse, many years ago,? Should that person be required to register publicly as a sex offender indefinitely, for so long as he or she remains a resident of Massachusetts?

The Massachusetts Appeals Court handed down an interesting decision this past week, dealing with the requirement that sex offenders in Massachusetts must register potentially for life as such, with the state Sex Offender Registration Board (SORB.) SORB is the state agency that is charged with registering and monitoring persons either convicted of, or who have accepted guilty pleas on, sexual offenses. To date, if a defendant in a criminal prosecution either pled guilty to or was convicted of a sex crime, he or she would be required to register with SORB indefinitely – no matter what circumstances surrounded the original crime, or how old the offense was. The Massachusetts Appeals Court has now modified that requirement.

In John DOE, Sex Offender Registry Board No. 24341 vs. SEX OFFENDER REGISTRY BOARD, the Appeals Court heard the case of “Doe” (a pseudonym,) who claimed that he was wrongly being required to continue to register with SORB as a sex offender, based upon a single offense 25 years ago, which he claimed was fueled by a drinking problem that he no longer has. The appellant was convicted in 1984 of assault with intent to rape, after leaving a Quincy bar. Since his conviction 25 years ago, “Doe” had enrolled in Alcoholics Anonymous (AA,) given up drinking, led a responsible life and had experienced no trouble with law enforcement or been involved in criminal offenses of any kind. A hearing officer at SORB concluded that though Doe posed a “low” risk, he still posed a risk, that the details of his personal rehabilitation were not material, and that he therefore was still required to register as a Level One sex offender (the least serious level classification within SORB.) Doe appealed to a Superior Court judge, who affirmed SORB’s findings. Doe’s attorney then brought the matter to the Appeals Court for review.

The Appeals Court ordered SORB to reconsider their decision, taking into account the man’s broader life history since his arrest, before determining whether he is still a risk and requiring him to continue to register as a sex offender. I’ll explain the legal reasoning and the details of why they did this, in my next post.

According to internet safety experts and many public policy officials, teens increasingly face the possibility of becoming registered sex offenders for sending sexually explicit images of themselves (or others) over the Internet and their cell phones. More and more schools and parents have discovered that their teenage sons and daughters have emailed sexually suggestive photos of themselves to other classmates, usually through their cell phone cameras. Remember the Polaroid Land Camera? And you thought that was high-tech …

To combat what many perceive to be a growing problem here, some prosecutors across the country have suggested that emailing such images (by underage teens of themselves or others,) could constitute dissemination of illegal “kiddie porn.” While dissemination of nude and semi-nude images of persons over 18 is legal, such images of anyone under 18 are considered illegal pornography in almost all states. Dissemination of these images over the internet, via ‘sexting,’ might constitute a federal crime. Most sexting involves girls who intend to send the photo to a boyfriend or someone they are interested in. It used to be that if a high school kid were interested in another student, she or he would try to get into a study group with that student, or strike up a conversation. Not so any more. If these pictures stayed with the intended recipient and strayed no further, perhaps there wouldn’t result any real problems.

But of course, that’s not what happens. The “innocent” photo soon enough is forwarded to friends, and friend of friends, and faster that you can say “swine flu,” it spreads like a virus, and the whole school (if not half the town) has seen the images. Clearly, this is a bad idea and a foolish practice. Before she or he knows it, aside from being the talk of the school, the person who took the photo of him or herself, is the target of cyber-bullying, with threats made by enemies or extortionists to post the images on YouTube and the internet. A California-based nonprofit agency, i-SAFE, which provides an online safety curriculum for students in Grades K-12, recently coordinated “Cyber Safety Week” across various schools in Massachusetts, to warn of these dangers, and this is a good first response to this problem. The Verizon Foundation donated $100,000 for the training sessions. At the Greater New Bedford Vocational School where one such program was held recently, Bristol County Sheriff Thomas M. Hodgson commented, “This is a whole new crime prevention program for a threat facing our children and our parents.” Hodgson’s department has been sponsoring an Internet safety campaign for the last two years.

Clearly, ‘sexting’ is a bad idea and a foolish practice, and anyone familiar with the speed and ubiquity of the internet ought to know that – especially a teenager, as (believe it or not,) they tend to be far more proficient in internet use and applications than most adults. But should ‘sexting’ be a crime? Most anyone would agree that cyber-bullying should be a crime. But ‘sexting’? Should that be considered “pornography” in the commercial sense? (This is how nude and semi-nude images of children under 18 are restricted in magazines and publications.) Should teens found to have ‘sexted’ be required to register as “sex offenders”?

As a Boston sex offenses defense lawyer, I think that’s an extreme response. Let me know how you feel about this. Fill out a Contact Form on any page here, and send me your comments.