Boston Criminal Attorney Blog

Here’s an interesting development that’s appropriate for the high school and college football season, and it underscores that the words “foul play” have as much to do with criminal law as they do with sports.

An Arlington, Massachusetts high school football player has been formally charged with criminal assault and battery, as the result of a “head-butt” he inflicted against an opposing team’s player. Arlington Catholic High School football player James LaShoto was arraigned this Friday in Cambridge District Court, where his lawyer entered a plea of not guilty on his behalf. Authorities say the 17-year-old LaShoto deliberately “head-butted” Abington High School player Daniel Curtin in his (Curtin's) head, after Curtin's own helmet was knocked off during a Sept. 19 2009 game. Curtin suffered a concussion as a result, and could not play football for 10 days due to medical concerns surrounding his head injury. Arlington Cathlolic High School suspended LaShoto for two games as a result of the incident. (Can someone say "slap on the wrist"?) His lawyer, Ronald Martignetti, said although the play was "dirty," it did not constitute a criminal act, and thus his client should not have been criminally charged.

An interesting question. Legally, criminal assault and battery occurs when a victim is placed in imminent apprehension of an un-consented to physical contact, and when some type of harm results from that contact (however minor the harm might be.) The legal issue that is going to determine whether or not this particular defendant should be found guilty of this charge, centers on two legal elements here – the elements of “intent” and “consent”. Specifically, intent on the part of the defendant, and consent on the part of the victim. In contact sports such as football, aggressive physical contact is unavoidably expected, and so are injuries. Players provide what is known as “implied consent” to contact of the type that would be normally expected and required within the context of the sporting activity. (The consent is “implied” by virtue of voluntarily participating in the sporting activity; hence, there is no need for players to execute written or “express” consent.)

One of two central questions in this case will be, did the defendant, LaShoto, specifically intend to inflict harm on the victim here – harm of the type that would not be expected, or otherwise legally excused, under these specific circumstances (i.e., a contact sport such as football)? Concomitantly, the second question is did the victim here, Curtin, give his consent to be touched or contacted in the manner that caused his injuries? We’ve all seen countless examples of players being carried off a field on a stretcher, after being injured in a game. So why has this youth been charged? Because while the victim here, through his very act of participating as a player, gave his implied consent for physical contact of the type inherent in this sport, neither he nor police authorities believe that he gave his consent for this specific type of physical contact, which caused his injuries. The defendant here is charged with intentionally head-butting the victim in the head, when the victim did not have his helmet on, and the defendant did have a helmet on. The prosecution's argument will almost certainly be that the defendant had the specific intent to engage in a type of physical contact that the victim had not consented to, and that the defendant also had the specific intent to inflict serious bodily harm on the victim. A judge or jury could infer the specific intent, primarily from the fact that the defendant head-butted the victim with the defendant's helmet on, knowing that the victim was not wearing a protective helmet.

The defense will likely argue that the victim impliedly "consented” to this type of bodily contact by playing in the game, and that the defendant’s actions did not constitute evidence of specific intent to cause bodily harm. If the prosecution does not advance the “specific intent” (to harm) theory, it may also avail itself of another prosecutorial argument known as “reckless disregard.” This approach would argue that even if the defendant did not have the specific intent to harm, he nonetheless acted with “reckless disregard” for the safety of the victim. As a former Special Assistant District Attorney and now a Norfolk County, Massachusetts assault and battery defense lawyer, I think a strong argument can be made that the defendant in this case possessed what is legally known as “specific intent” to inflict unconsented-to assault and battery on the victim, and that the victim did not grant implied consent for such physical contact. That doesn't mean this defendant will be convicted, but it will make for an interesting trial, if the matter is not disposed of through plea agreement.

LaShoto was released on personal recognizance. He is due back in court Dec. 21.

I've been traveling out of office for a couple of weeks, and I haven't posted anything for too long - my apologies to my loyal readers. Today, I want to send this brief message: I've been given a lot of good things in this life. I've had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less then we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: "When Wishes Are Few The Heart Is Happy." That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of "Buy, Get, Acquire." But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

My best wishes to all of you.

Thankfully,

Bill Kickham

Not that many people outside of the criminal defense profession or the criminal justice system are aware of this, but in Massachusetts, once a convicted sex offender’s prison sentence is finished, the story isn’t necessarily over. You see, once a convict’s criminal sentence for a Massachusetts sex offense has been completed, the state has the right to seek an (involuntary) civil commitment of that person, if in the Commonwealth’s opinion, that person continues to pose a threat to the public if he (or she) is released. This process is known as a “civil commitment petition,” and if the Commonwealth’s petition and argument is successful, the defendant is transferred out of the prison he has served his criminal sentence in, and held (against his will, obviously) under civil law in the state hospital for the sexually dangerous, which is Bridgewater State Hospital. There, he will be held and treated indefinitely, until when (or if) medical authorities determine that he no longer poses a threat to the public if released.

That scheme can make sense from both a correctional, as well as public safety, point of view. Notwithstanding the fact that I am a practicing Massachusetts criminal defense attorney, I can easily acknowledge that it makes no sense to allow a serial rapist or serial child abuser to be released after completing a criminal prison sentence, solely because “X” number of months or years has been served, if that convict remains just as dangerous at the completion of his criminal sentence, as he was the day he began it. The critical issue is, however, who should decide this question – a judge or a jury? Historically in Massachusetts, it is the defendant who has been allowed to make that choice whenever the Commonwealth filed such a petition – not the particular District Attorney’s office filing the petition. What’s the big deal with that, you ask? Well, most defense attorneys representing a convict at such a trial would choose to have the matter heard by a judge, not a jury, and a prosecutor has had no say in the matter. The reason that most defendants choose to have the matter tried before a judge, is that many defense attormeys believe that historically, judges are more likely to release a convict, than a jury. Judges typically decide this issue based upon very formal, and justifiably demanding, legal criteria before granting a prosecutor’s petition. The Commonwealth must meet specific legal criteria in demonstrating that the convict suffers from a “mental abnormality or defect,” therefore making him likely to re-offend. A good number of judges have historically denied those petitions, because judges interpret those petitions very strictly. The result: Massachusetts sexual offense convicts are released, and many re-offend. This was witnessed most recently in a widely-publicized sexual assault at Massachusetts General Hospital.

In that particular case, the District Attorney’s office that was involved, had petitioned a court to civilly commit the convict at the end of his sentence. At the defendant’s request, the matter was heard before a judge, and the judge denied the prosecutor’s request, finding that the Commonwealth did not meet its burden of proof, and therefore that the convict did not pose a continued threat to the public if released. As fate would have it, the convict did re-offend, committing a sexual assault in Massachusetts against a woman, seriously injuring her. Predictably, the media in Boston and elsewhere reported that a judge released this person, and a public uproar (justifiably) followed. Many average citizens believe that too many judges are too lenient in deciding these petitions, and several media observers have noted that these petitions would be better decided by a jury chosen from the community, rather than a judge.

As a result, Middlesex County District Attorney Gerry Leone has filed a bill with the Massachusetts legislature, which would allow either the defendant or the Commonwealth to demand a jury trial. The thinking behind this approach is that a jury would be more sensitive to the risk of a convicted sex offender re-offending, and hence more likely to grant the prosecutor’s petition. As a Boston sex offenses lawyer, I don’t necessarily object to the idea of allowing a jury to hear the evidence in such petitions, and to decide the matter based on that evidence. Despite the perception held by some people that juries will grant these petitions more frequently than judges, the statistical evidence doesn’t necessarily bear this out. If, as a Norfolk County criminal defense lawyer, I truly believe that a convict who has served his or her sentence does not suffer from a mental abnormality or defect making him or her likely to re-offend, I have little doubt that I can make that case just as convincingly to a jury as I can to a judge.

And equally importantly, the public’s confidence can be restored in the criminal court system. When terrible incidents like the recent one I discussed above occur, many in the public decry “liberal judges.” This is despite the fact that most all the judges I know are responsible and fair jurists. If more of these decisions are placed in the hands of juries, that apprehension can be removed.

Truly dangerous sex offenders should be confined after their criminal sentences, and the public should be protected. (I wouldn’t want my wife, myself or someone I care about to be made a victim, either.) But let’s conduct this review process in a manner that maximizes public confidence.

Here’s an interesting case that might fall under the tagline, “Don’t answer that phone!” In a case that illustrates occasional over-reaching by police officers in their attempts to secure evidence of criminal wrongdoing, a Massachusetts Superior Court judge recently ruled that evidence, obtained by police officers who answered a defendant’s cell phone while he was being booked, cannot be admitted as evidence against that defendant.

It’s a case that some people might say warranted the admission of the evidence obtained by the police, but constitutional principles say otherwise. It seems that last December 15 2008, Lynn police officers on patrol spotted one Felipe Diaz and a passenger, driving in Diaz’ older-model pickup truck. One of the officers recognized Diaz from prior encounters with the Lynn Police Department, also recognized his truck, and knew that Diaz’ drivers license had been revoked for previous Massachusetts motor vehcile offenses. The officers stopped Diaz, arrested him for operating without a license, and placed him in handcuffs in the police cruiser. Diaz’ passenger was interviewed and allowed to leave. The officers had Diaz’ truck towed, and consistent with standard police procedure, conducted an inventory search of the vehicle. They discovered seven small bags of heroin hidden behind the front seat.

While he was being booked at the Lynn Police Department, Diaz’ cell phone rang several times. After “four or five” calls came in from different numbers within approximately twenty minutes, different officers at the station answered the phone, obviously acting as though they were the phone’s owner. One officer claimed, that a female caller say, "I'll take three.",at which Diaz yelled out "I'm at the police station." A separate officer answered another call and spoke with a man who identified himself as "Mike." According to this officer, this caller made "statements indicating an interest in buying drugs.” Aside from the possession charge on the heroin located in his truck, as a result of these phone calls, the defendant was charged additionally with “Intent to distribute,” which is an even more serious Massachusetts drug offense. Prosecutors introduced evidence of these calls in support of the “intent to distribute drugs” charge. Diaz’ defense attorney objected, filing what is called a “Motion to Suppress."

A Superior Court judge agreed with the defense.The central issue here, as almost always in “Suppression Motions,” was a constitutional one. The core of the defense’s argument here, was that the defendant had a legitimate “expectation of privacy” in his cell phone calls, and that, without a warrant, the officers use, manipulation, or examination of that phone, was an impermissible violation of the defendant’s constitutional right to privacy. The important element that lacking here – which if the police had it, might have resulted in the phone calls coming into evidence – was “probable cause” for the officers to answer the defendant’s cell phone. The court ruled that the police didn't have this 'probable cause', and as a result, any evidence obtained from the police answering those calls, is inadmissible. In his ruling on the defense’s suppression motion, Superior Court judge David A. Lowy wrote, "To allow government agents to answer a cellular telephone without a warrant under such circumstances would allow just the sort of ‘indiscriminate search ... conducted under the authority of "general warrants"' that courts are constitutionally bound to prohibit.” Exceptions to the normal requirement of a search warrant do exist, but Lowy found none under these circumstances. "The court agrees that the officers could not lawfully conduct a warrantless search of Diaz's cellular telephone where the facts known to them at the time they were booking Diaz did not create probable cause to believe that he was selling heroin through his telephone," he wrote.
By answering the defendant's phone, Lowy said, the Lynn police "... intruded into an area in which society recognizes a reasonable expectation of privacy."

Some people might find this judge’s reasoning to be shallow. I can understand that – especially when considering that cell phones are an acknowledged tool involving drug trafficking. The courts do recognize this fact, and in the past police have been allowed to glean evidence from cell phones, without a warrant, under limited circumstances. But this judge concluded that the police officers’ actions in answering the phone during booking, was unreasonable on several grounds. First, "The search of the cellular telephone was not contemporaneous with Diaz's arrest. A substantial amount of time elapsed between the moments when Lynn police took Diaz into custody ... and when the officers began answering his ringing cellular telephone at the station," Lowy wrote. Second, "By failing to identify himself immediately, an officer can take advantage of a caller's reasonable expectation that the person answering the cellular telephone is its owner and engage in the functional equivalent of eavesdropping, if only for a moment." Third, the prosecution was unable to demonstrate "the necessary link between evidence of criminality" and the phone.

Interpreting this ruling, the bottom lime is that the arresting officers “had no principled way of distinguishing between incoming calls to Diaz's cellular telephone that were likely to be perfectly lawful, and those calls that might produce evidence of criminality." The police did not have probable cause to justify a warrantless search of Diaz's cellular telephone for the purpose of securing evidence of an intent to distribute heroin. Accordingly,the court ruled that "the statements made by third parties to the officers who answered Diaz's cellular telephone, and Diaz's statements themselves, must be suppressed."

As I said above, I can see how a good number of people, especially police officers, would disagree with this ruling, arguing that it was reasonable to think that if a person was just arrested with a good deal of illegal drugs, and his cell phone rings several times while in custody, that person is probably dealing drugs. But as a Norfolk County, Massachusetts criminal defense lawyer, the correct way for police to have to handle that, under those circumstances, would have been to apply to a judge for search warrant to answer and manipulate this person’s cell phone. Those prescribed legal procedures must be followed. If we allow constitutional protections to be ignored, then slowly, over time, the protections we all enjoy could one day disappear.

And I don’t think anyone wants that.