Boston Criminal Attorney Blog

In my last post, I discussed the most recent Massachusetts OUI arrest involving state senator Anthony D. Galluccio, and his most recent, and rather novel, legal defense. I made the argument that while as a Boston criminal defense lawyer I zealously and aggressively fight for my clients in court, there comes a time, if a person is arrested multiple times for the same offense (such as OUI or a Massachusetts sex offense,) to own up to the problem, cease the excuses, and get effective treatment.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.

In my experience as a Massachusetts OUI defense lawyer, most of my clients who receive probation sentences, understand and appreciate the importance of adhering to any terms of probation they might receive. Any client that I’ve advised to accept a probation sentence (which is not always advisable, as many of my clients are in fact not guilty of OUI,) “gets it” – they know how important it is to obey any terms they are given. But occasionally, I’ve seen other people who take a “Yeah, yeah – sure, sure,” attitude when agreeing to probation – never intending to adhere to the terms. It’s these people that I have no patience for: The ones that couldn’t care less what consequences their conduct may bring. For these people, they either simply don’t care, or they can’t control themselves. When I see such a person, and I’m asked to represent them after they’ve committed multiple offenses involving public safety, I’ll take a close look at their history. If I become convinced that this person has undeniable addiction or behavioral problems beyond their control, I won’t represent them.

I began this post by saying that I fight tooth and nail to defend my clients zealously and aggressively – but I also have to be able to sleep at night with a clear conscience. If I’m morally convinced that if I secure an acquittal for a potential client, that person will go out and commit the same offense, only to perhaps kill or seriously harm someone else, I’ll decline the case. That’s a tough call for a criminal defense lawyer – it’s not easy. And I know several of my colleagues who would disagree with me. But when I think of my wife or a loved one being the next potential victim, it’s a choice I’m brave enough to make. I'd rather see them get effective treatment, than an effective pass to go out an reoffend all over again. This point also illustrates the need for our criminal courts to be more focused on treatment than simply incarceration.

Oh, and by the way - Happy New Year to all my readers. Let's hope that 2010 is a better year, in many ways, economic, social and otherwise, than was 2009.

Today’s post is a real story about limits - in life, professionally and personally. Before I say anything else, let me emphasize the obvious: I’m a criminal defense lawyer. I make my living, in part, by powerfully and aggressively defending clients who are accused of crimes. I fight to the end for my clients. Philosophically, I’ve always cherished the constitutional presumption of innocence in our country, and I believe that presumption should never be diminished in any way. All that being said, there are also times when I believe that if a defendant has committed multiple offenses for a specific act (such as drunk driving,) and has received multiple convictions or other findings tantamount to a guilty plea on those offenses, then he or she is arrested yet again for the same offense, the time comes when that person must own up to their problem, and pay the price that the courts have decreed is appropriate for that offense. As a Boston criminal defense lawyer, I can tell you that this type of situation is most often witnessed in OUI/alcohol and sex offenses.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,’’ and that, “I made a firm decision that there will be no alcohol in my life.’’ As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

Aside from the usual random urine tests for alcohol, his probation agreement required him to use a handheld electronic device called a “Sobrietor”, which allows probation officials to monitor his blood alcohol content while he is at home, through the use of that device. (The device is essentially a breathalyzer similar to the ones used roadside by police, except that it transmits and measures the breath sample over a modem installed in the person’s home.) Also as part of that judgment, Galluccio lost his driver’s license for five years, was ordered to pay a $1,000 fine, ordered to undergo alcohol treatment, and attend a half-day workshop by the Brain Injury Association. The one exception to his home confinement sentence, was that he was allowed to leave home to attend church on Sundays, and to travel to Boston to cast a vote in the state Senate, when needed. The terms of his probation stipulated clearly that if Galluccio violated any term of his probation, he could be sentenced to up to a year in a county jail.

Given that the October incident he was charged with was Galluccio’s fourth incident allegedly involving alcohol, as a Dedham Massachusetts OUI attorney, I can attest that this disposition was extremely lenient. Prosecutors had called for Galluccio to serve jail time. He escaped that. One would think that this sentence would do the trick, but not so. Just days after this rather lenient sentence, Galluccio failed several breathalyzer tests administered through the Sobrietor at his home. That’s bad enough, but what follows is worse: Galluccio has claimed that his toothpaste caused the breathalyzer to record alcohol. Yes, that’s correct. “My toothpaste did it.” Galluccio issued a statement claiming that the breathalyzer recorded low-level alcohol readings as a result of his toothpaste, to wit: Colgate Total Whitening and Sensodyne Toothpaste. He said he arrived at that determination after consulting (read “desperately seeking”) a doctor (read” “any doctor”), who pointed out that these toothpastes both contain sorbitol, a sugar alcohol that has been reported to trigger positive breathalyzer results.

Full disclosure: This argument is not without legal precedent. It’s never been successful, but it has been tried. In 2006, a firefighter in Arkansas fought his punishment for testing positive on a breathalyzer by producing a chemist to testify that the mints he ate contained sorbitol, which “could have” caused his positive test result. The legal outcome? Thumbs down - and Galluccio failed to mention that in his most recent press release proclaiming his innocence on this latest offense.

As a Norfolk County, Massachusetts criminal defense attorney, in my professional opinion, this latest claim stretches credulity beyond the breaking point, and it poses an interesting professional question of when a defense lawyer should re-think accepting a client who clearly has a serious addiction problem, and who clearly poses a threat to public safety. Zealous defense of my clients is a trait I'm known for - and I'm proud of it. But at some point, a lawyer must make a decision in a case like this, a decision that will serve the client, protect the public, and allow the attorney to sleep at night.

In my next post, I’ll discuss what happens next legally – which will serve as a good backgrounder on probation violation hearings.

What I’m going to write about today will be of interest to not only Massachusetts OUI lawyers such as myself, but to anyone who drives in Massachusetts. Previously, on July 1 of this year, I blogged about a case that was handed down by the United States Supreme Court earlier this year. While I didn’t cite that case by name in that blog, it was Commonwealth v. Melendez-Diaz. In that ruling, the U.S. Supreme Court held that lab reports offered as evidence by prosecutors to prove the chemical composition of substances that it (the prosecution) claimed were illegal drugs, would in the future require the in-person testimony at trial, of the lab technician(s) who actually tested the substance. This ruling was substantial for persons accused of Massachusetts drug crimes, as prior to this ruling, the prosecution needed to introduce only a certificate from the State Police Crime Laboratory, showing that the substance tested was a certain drug.

From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost - the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.

Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.

Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don't call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)

This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.

In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.

Continue reading " Supreme Court Ruling on Drug Prosecutions Applied to Massachusetts OUI Case: Part 1 of 2 " »

My apologies for my absence here recently – I’ve been sidelined with a bad cold. Here’s an item that will probably be appreciated mostly by lawyers (vs. lay persons,) but on a legal level, the issue is significant. It’s a decision by the state Supreme Judicial Court (SJC) that more clearly defines the legal element of “attempt” within the criminal law context.

Before reviewing this case, let me say that almost anyone reading about this case – in particular of the SJC’s decision to overturn this conviction – is going to be disgusted over the facts within the case. Regarding the facts of this case, I’m equally disgusted. But when considering the ruling, it’s critical to bear in mind the legal elements of the court’s decision.

Back in 2004, the Worcester, Massachusetts Police Department was conducting an undercover sting operation to root out Massachusetts sex offenders – particularly child sex offenders. Posing as a prostitute, an undercover female police officer met with one especially perverted, twisted individual by the name of Kerry Van Bell. Van Bell met the “prostitute” in a convenience store parking lot, where the undercover officer offered to make a 4 year-old girl available to him for sex. The undercover officer informed Bell, however, that the child was not with her in her car, and that Bell would have to follow her in his car to drive to where the child was located. Bell, while voicing his displeasure that he child was not readily available to him then and there, agreed to follow the undercover officer in her car, and agreed to pay $200 for the child upon arriving at the “destination.”. Upon exiting the store parking lot, police cruisers in waiting swarmed in on Bell, arresting him and charging him with attempted rape of a child (M.G.L. c.265, Sec. 13B -13B-3, and solicitation of sex for a fee (M.G.L. c. 272, Sec. 2-8.)

At trial, Van Bell was convicted of both “attempted rape of a child” and solicitation of a prostitute. He appealed on several grounds, arguing that there was insufficient evidence to convict him on the attempted rape charge. This is where the legalese comes in. You see, while the police, the prosecutor, you, me, and even the judge knew this sickening pervert fully intended to rape a (unknown to him, fictitious) 4 year-old child, the legal issue on appeal was, “Did the defendant come close enough to the charged act (attempted rape,) to warrant a guilty finding on that charge”? The answer was no.

The reason? The legal definition of “attempt.” It’s not the same as a lay person understands it to be. It’s far more surgical and legalistic. You see, an “attempt”, in the eyes of the law, must go beyond mere agreement to commit an unlawful act; it must exceed “preparation” to commit an unlawful act, and progress or mature into “perpetration”. In this case, the SJC majority found that this defendant – while he fully intended to commit the act – hadn’t yet undertaken steps to legally “attempt” the rape. Specifically, this required an “overt act” under the relevant statute – and the court’s majority found that “overt act” to be lacking here. Hence, the court reversed the “attempted rape” charge – but they did find Bell guilty on the charge of solicitation of sex for a fee.

Sounds unfair, doesn’t it? I wouldn’t blame you for feeling this way. But these legal principles and maxims exist for sound reasons. Once they start to slide to accommodate individual prosecution objectives, no matter how laudable those objectives, and how horrible the crime, justice will suffer in the long term.

As a Boston sexual offenses lawyer, I’ve seen my share of detestable crimes. But I’ve also seen my share of cases where prosecution should not have been brought in the first place. Remember, if people want the law to stand up for them, they need to stand up for the rule of law.