Boston Criminal Attorney Blog

Here’s an interesting case – controversy, actually – that involves a hybrid of criminal law and tort law – specifically, the tort of wrongful death.

Famous television legal journalist Nancy Grace is known far and wide for her aggressive, take-no-prisoners on-air persona. Her interview style is very probative, and she doesn’t let evasive interview subjects off the hook easily. Ms. Grace is a former prosecutor, and it forms her approach to the subjects she covers on her HLN cable network show, “Nancy Grace“ – HLN’s most popular show. (The show, of course, covers criminal law almost exclusively.) Ms. Grace has an interesting background. Professionally, she was a career prosecutor for almost a decade in the Atlanta-Fulton County, Georgia District Attorney's office. She prosecuted primarily felony cases involving serial murder, serial rape, serial child molestation and arson. In sum, the most gruesome of cases. Personally, Ms. Grace was the victim of violent crime herself, when her fiancé was murdered many years ago. She has stated publicly that this tragedy will never leave her – understandably so.

The sum of this personal tragedy and professional experience is that Ms. Grace takes a decidedly pro-victim philosophy on her show. Because of this, a lot of defense attorneys across the United States doesn’t care for her, thinking her biased towards victims before the fact, in any case she examines. One prominent criminal defense attorney has publicly said of her, “Nancy has never met a victim she didn't love and never met a suspect she didn't want to tar and feather."

Hmm. As a Boston criminal defense attorney myself, I think this characterization is unfair to Ms. Grace. Further, I’d point out that the very defense attorneys who serve as her detractors, accusing her of constant bias towards victims, aren’t willing to point out that they, too, are biased – in favor of defendants. That’s understandable – I can be that way myself at times. It’s natural for opposing attorneys to be this way – but under the aegis of full disclosure, Nancy’s detractors ought to admit this before criticizing her.

Which brings us to today’s subject: Almost four years ago, a 2 year-old boy by the name of Trenton Duckett went missing in Leesburg, Florida. The boy was not found after his disappearance, and has never been. The boy’s mother, Melinda Duckett, was a 21 year-old woman, and had been questioned by police about the boy’s disappearance. On September 7 2006, Ms. Duckett appeared by telephone interview on Ms. Grace’s show, to discuss the case. As the interview began, Ms. Grace seemed sympathetic to Ms. Duckett, but as the interview progressed, Ms. Duckett declined to answer some of Ms. Grace’s quite reasonable questions about her own whereabouts the day of her son’s disappearance. During Grace's interview, the host increased the scope of her questions regarding Ms. Duckett's activities and whereabouts the day her son went missing, and Ms. Duckett became evasive, refusing to answer. At one point, Ms. Grace demanded of Ms. Duckett, "Where were you? Why aren't you telling us where you were that day?" Ms. Duckett answered (rather blithely,) “Because I don’t want to.” When, understandably incredulous, Ms. Grace pressed, “Why?”, Ms. Duckett remained silent.

The next day, just hours before the interview with Ms. Grace was set to air, Ms. Duckett shot herself in the head, killing herself. The broader media picked up the story, it grew, and about a week later, Good Morning America (GMA) interviewed Ms. Grace, who insisted that “If anything, I would suggest that guilt made her commit suicide" "To suggest that a 15- or 20-minute interview can cause someone to commit suicide is focusing on the wrong thing." Melinda Duckett's parents, Bethann and William Eubank, along with her aunt Kathleen Calvert, filed a wrongful death lawsuit against Grace two months after Melinda's Sept. 7, 2006, appearance on Ms. Grace’s show. The plaintiffs allege that Ms. Grace’s questioning caused Ms. Duckett to commit suicide, and they want damages.

Legally speaking, the plaintiffs here are alleging that Ms. Grace, by her questioning and treatment of Duckett, caused “intentional infliction of emotional distress” on Ms. Duckett, which caused her suicide. What they don’t mention as prominently in their press releases, is that Ms. Duckett had attempted suicide before, and that she never did account for her whereabouts the day her son went missing. As is normal for a civil case like this, it dragged on for quite some time, and depositions were scheduled. Recently, a videotaped deposition of Ms. Grace was scheduled by the plaintiffs, and Ms. Grace’s lawyers filed a motion to forbid the deposition from being videotaped. Predictably, the plaintiffs’ attorneys objected, and earlier this week the court granted the plaintiffs’ motion, ruling that Ms. Grace’s deposition would be video-recorded. From a public relations perspective, I can understand why Grace’s lawyers would want to quash videotaping her deposition. Nancy is a public figure, and if a video of something like that hit the internet, it could cause enormous imbalance in the case. But as videotaping of dispositions is highly common I think this was a fair ruling.

What I want to comment more on, are the accusations that Ms.Grace did anything wrong in her interview of Melinda Duckett. I’ve watched this interview, several times. I see nothing inappropriate, abusive, or improper in Ms. Grace’s questioning of Ms. Duckett. I think the allegations of intentional infliction of emotional distress are baseless – and I say this as a Massachusetts wrongful death lawyer, as well as a Boston criminal defense lawyer. Whether this interview subject had never committed or not, I see nothing in Ms. Grace’s conduct or demeanor that meets the legal definition of “intentional infliction of emotional distress.” More so, it is more than relevant to note that Ms. Duckett, in refusing to answer logical, reasonable questions posed by Ms. Grace during this interview, not only refused to answer the questions, but also refused to even state why she wouldn’t answer them. While not dispositive of guilt in itself, it’s inferential in the least.

It’s been pointed out by some of Ms. Grace’s detractors that liability might hinge here, in the pretext that was offered to Ms. Duckett, for appearing on the show in the first place. In other words, such persons have suggested that if a booking editor at HLN had induced Ms. Duckett to appear on the show with false assurances that Ms. Grace only wanted to help her find her baby, that Ms. Grace was entirely sympathetic toward her, and falsely represented that Ms. Grace would, in essence, ‘treat her with kid gloves’ only to aggressively interrogate her once on-air, that liability may result from such deception. This is a highly speculative and risky theory. Any intelligent adult appearing as an interview subject on a criminal affairs television show, would have to reasonably be on notice that any variety of questions could be asked.

As a criminal defense attorney who earns his living on the opposite side of the legal aisle that Ms. Grace occupies, I find her an admirable attorney, and an admirable person. While I agree that her deposition should have been subject to video recording as is routine civil practice in many such cases, I think her detractors should cut her a break. She speaks her mind and she does it in an ethical, professional manner.

And there shouldn't be any liability that results from that.

The criminal defense bar in Massachusetts has for over a year paid close attention to defrocked Catholic priest Paul Shanley’s appeal to the Massachusetts Supreme Judicial Court (SJC), of his 2005 rape conviction. The SJC’s decision is now in, and it isn’t good for Shanley, or for many Massachusetts rape defense lawyers.

Shanley, one of the more well-known of several catholic priests that surfaced as part of the catholic clergy sex abuse scandal that erupted in 2002 in Boston, was convicted in February of 2005 on two counts of rape of a child under the age of14, and of indecent assault and battery of a child under 14 (those charges are subsidiary to the rape charges.) Shanley appealed his conviction all the way to the SJC, advancing primarily one legal argument: That the Superior Court judge who allowed expert testimony on the subject of “repressed memory syndrome,” did so erroneously, and thus that his conviction should be voided. For those of my readers that may not immediately recall, “repressed memory syndrome,” (clinically referred to as “dissociative amnesia,”) is a legal theory that developed in largely the past ten years. In sum, it argues that a person who suffers a psychological trauma, may unconscionably repress, or “forget” the memory of that incident, until a ‘triggering event’ stimulates a recovery of the memories.

This prosecutorial theory is important, because it allows prosecutors to ‘get around’ statute of limitations problems, which would otherwise prohibit the state from prosecuting certain crimes. You see, if an alleged victim to a crime does not come forward to make a complaint to police authorities and therefore allow the Commonwealth to file charges against the defendant, within the time period required by that statute, then the prosecution is statutorily barred. In this case, Shanley’s alleged victim came forward in 2002, when the clergy sex abuse scandal broke wide open in the media. The victim claimed that only then – in 2002 – did he suddenly remember being allegedly raped by Shanley when he was an altar boy several years earlier – because, he claimed, the memory of the alleged rapes was triggered by exposure to media coverage of Shanley’s arrest on charges of raping and abusing other boys. The timing of an alleged victim’s complaint to authorities in both this case, and all similar cases, is critical: If the alleged victim waits too long (i.e., beyond the statute of limitations period) to come forward to authorities and formally commence prosecution of a defendant, that person forever loses the ability to have that person prosecuted. That rule of law was developed for very good (and specific) reasons. It prevents people from being forever exposed to prosecution for a serious crime, if an alleged victim does not choose to come forward to authorities within a lengthy – quite lengthy- period of time.

However, under Massachusetts law, the “tolling period” – the date when the statute begins to run – is the date that the alleged victim first became aware of the alleged crime – not the date that the alleged crime was committed. When these types of statutes were first written - not that long ago – they revolved around logic: If someone were a victim of a serious crime, and chose for many years to never file charges against the alleged defendant – then it was legislatively “presumed” that something must “be missing” in the victim’s evidence or the victim’s story – and that in the interests of justice, the door to prosecution against the defendant should at some point in the future be closed. In my view as a Boston Massachusetts sex offense lawyer, that’s a fairly balanced approach. But science, together with sometimes questionable psychological theories, it seems, never ceases its advance.

“Repressed memory syndrome,” which was developed by prosecutors and psychiatrists, argues that if an alleged victim unconsciously repressed his or her memory of the alleged crime for ‘X’ number of years after the alleged crime, and under normal circumstances the defendant could not be prosecuted for that crime because the statue of limitations had run, the prosecution should still be allowed if the time between the alleged victim’s recovered memory and the time of his complaint, is not greater that the time recited by the statue of limitations. Here, the victim testified at Shanley’s 2005 trial that more than 20 years had passed before he remembered what had happened to him. Normally, this would have barred his complaint from being prosecuted, as this period exceeds the statute of limitations for this crime. But, he testified that his memory came back in 2002 after being exposed to widespread media coverage about Shanley and the church sex abuse scandal. And it was the admission of that testimony – and particularly the trial judge’s admission of psychological expert testimony on the theory of dissociative amnesia - which allowed the jury to convict Shanley.

I’ll discuss the precise legal objections advanced by Shanley’s appeal, and the SJC’s reasoning, in my next post.

In my previous posts on the subject of what can happen when a defendant who has been sentenced to probation, violates one or more of the terms of his probation agreement, I discussed the case of Massachusetts state senator Anthony Galluccio. Galluccio was sentenced to probation recently for leaving the scene of an accident last October 4 2009, in which a 13-year-old boy was I injured. Because Galluccio had previously been convicted twice on Massachusetts drunk driving charges, (one of which he had been pardoned for) and because investigators suspected that alcohol was involved in the October 2009 vehicular accident where Galluccio left the scene, a judge placed Galluccio under house arrest and placed him on probation. One of the terms of that probation order, was that Galluccio abstain completely from ingesting alcohol. To monitor his compliance with that order, an electronic alcohol monitoring device (called a “Sobrietor”) was installed in Galluccio’s home, and he was required to submit to random alcohol testing with that device.

Three days after receiving that sentence, Galluccio tested positive (on three separate tests) for alcohol. He was then arrested for a Massachusetts probation violation. As part of his defense, he initially claimed that his toothpaste caused a false alcohol reading (he later abandoned that defense). At his court appearance earlier this week, Galluccio showed up in court with two defense lawyers, several public relations representatives, and expert witnesses testifying on his behalf that the “Sobrietor” accuracy might be questionable.

The result? Handcuffs and a trip to a Billerica jail cell for the next 12 months. This very public story illustrates just how serious probation agreements are. Especially when it comes to Massachusetts OUI charges and alcohol abuse. Some defendants think that they can ignore probation agreements – but they’re serious business. The judge in this case, Matthew J. Nestor of Cambridge District Court, had (generally speaking,) three options in front of him, after hearing Galluccio’s defense at this probation revocation hearing: 1) Terminate probation, 2) Re-probate him with more serious conditions – including mandatory alcohol treatment at an inpatient detox center – or 3) Impose a one-year jail sentence. Galluccio and his lawyers probably thought he’d get one of the first two sentences. But as a Dedham Massachusetts OUI defense lawyer, I can assure you: With multiple offenders, luck always runs out.

The buzz in the Massachusetts media right now, is whether Galluccio’s sentence for this probation violation was too harsh. Some observers, including some criminal defense lawyers, are saying that a defendant who wasn’t a public figure would have received a lesser sentence. As a Boston criminal defense lawyer, I’ve seen these cases go either way. Perhaps it’s true that because Galluccio is a high-profile figure, the judge thought that a very powerful message could be sent about alcohol abuse and probation violations with this sentence. Regardless, this case makes clear: Massachusetts DUI/OUI charges are dealt with very seriously, and any probation violations involving alcohol won’t be tolerated lightly.