Boston Criminal Attorney Blog

Today, John Odgren’s defense lawyer rested his case in the murder trial of the now 19-year-old young man who is accused of fatally stabbing 15-year-old James Alenson in a bathroom at Lincoln-Sudbury High School three years ago. As a Norfolk County Massachusetts criminal defense lawyer, I can assure you: Odgren's lawyer has his hands full with this case.

During the past week, Odgren’s lawyer has called three mental health experts to the stand, (as well as the defendant’s own father,) to bolster Odgren's insanity defense, claiming he was psychotic and delusional when he killed the Alenson boy. As I said, Odgren’s lawyer has his hands full – as does any defense lawyer advancing an insanity defense. The public - and the members of the public who constitute juries such as the one to decide Odgren's fate - are very hostile to the insanty defense. The reason for this is largely owing to a misunderstanding of what "not guilty by reason of insanity" legally means, and what the legal consequences are to a defendant so adjudicated. "Not guilty by reason of insanity" does not mean that the jury found that the defendant did not commit the act he was charged with. Nor does this verdict mean the defendant is "innocent." It means only that the defendant, when committing the crime he was charged with, was so mentally ill at the time he committed the crime, that he could not appreciate the criminality of his conduct or control his actions to conform to the law. More on that later in this post, but for now trust me - the defendant is not set free.

Last week, the prosecution produced its own psychiatric experts when it presented its case, but today the prosecution produced a particular rebuttal witness, and I was rather surprised at the relatively weak professional credentialing and minimal professional experience associated with this expert. In testifying for the Commonwealth, psychiatrist Dr. Alison Fife agreed with the defense's psychiatric experts that Odgren suffered from mental diseases and defects, but disagreed with their assessment of his competency.

Dr. Fife testified, "I think that Mr. Odgren was very aware that he was trying to mortally wound Mr. Alenson." This assessment as to his awareness is key, as whether or not Odgren was able to “Appreciate the criminality or wrongfulness of his actions” is key for the jury, in making a determination as to whether he was legally insane at the time of the murder. What made this expert for the prosecution appear rather weak to me, was her relatively scarce professional experience in making professional psychiatric assessments of juveniles, as well as her extremely limited interaction or familiarity with this defendant. On cross examination, Odgren’s defense attorney pointed out that Dr. Fife interviewed Odgren for the first time, only two months ago, and that his mental state could have changed a great deal from almost three years ago, when the killing occurred. Wisely, the defense also questioned this psychiatrist’s professional qualifications to even examine Odgren, at all. In the process of cross-examination by the defense, this psychiatrist was forced to acknowledge that she’s never even conducted a criminal responsibility evaluation, on someone who was a juvenile at the time of the crime. Not necessarily fatal to the prosecution’s case, but not helpful, either.

Yet it may be that the most pivotal day in this trial occurred last week, when Odgren’s lawyers asked the judge in this case to charge the jury specifically that, if they found Odgren “not guilty by reason of insanity”, he would be "automatically" committed to a hospital for the insane. The reason why Odgren’s lawyers wanted this instruction is due to the widespread misperception – doubtless held by several if not all members of this jury - of what does, in fact, happen to a defendant who is found “not guilty by reason of insanity.” Most people incorrectly think that such a verdict would result in the defendant walking out of the court house, free. Not so, at all. In Massachusetts, such a person would almost certainly (nearly a 100% chance) be immediately committed by the judge to Bridgewater State Hospital for a 40-day evaluation, during which prosecutors or a doctor could petition the court to order him held a minimum of six more months. After that, another commitment hearing takes place, and unless extremely probative, convincing evidence is presented that the individual no longer suffers from the mental disease or defect that caused him to commit the underlying offense, he or she is held at the state mental hospital under what is known as an "involuntary civil commitment." This is what was done with more well-known defendants who have been found not guilty by reason of insanity in other states: John Hinckley (who shot President Reagan,) for example. While the defendant who is so committed has the right to periodically petition for release, it is not at all likely that request would be granted for many, many years to come – if at all.

Some of my readers may recall the John Salvi abortion shootings case in Massachusetts, in 1996. The evidence in that case cried out for a “not guilty by reason of insanity” verdict. The evidence was overwhelming – truly beyond any reasonable doubt – that Salvi was critically, mentally ill. To depart from medical or legal terminology, he was stark raving mad, unquestionably insane. Salvi’s lawyer produced several psychiatry experts who testified that Salvi suffered from pronounced and severe paranoid schizophrenia - that it was beyond question that he did not unerstand the criminality or wrongfulness of his conduct at the time of the shootings. The evidence of his insanity was so powerful and so overwhelming, that the prosecution couldn’t even find a single credible psychiatry expert to testify that Salvi wasn’t insane - the best “expert” the Commonwealth could come up with, was someone with a PhD in Education, who testified he thought Salvi was sane at the time of the killings. The prosecution’s testimony was a joke. Yet the jury found Salvi guilty, as though he were sane. A clearly insane man, he was sentenced to a maximum security state prison, and hung himself not long afterward. Not a great loss to society, but the jury’s verdict only compounded an already-terrible tragedy.

The practical reality is that such “involuntary civil commitments” last for decades, if not for life, in a prison that doubles as a mental hospital. Notwithstanding the defense’s request that the judge inform the jury specifically that the defendant would be “automatically” committed to the state mental hospital for the insane, the judge denied the request. This followed, naturally, the vigorous objections by the prosecution, who countered that they weren’t prepared to discuss what they would request of the judge if the jury found Odgren insane. (This is posturing, of course: In such an event, the prosecution would move immediately for an involuntary civil commitment to the state mental health hospital, and all the parties know that.) However, the judge agreed to consider an alternate request - that she explain to jurors the “likely scenarios” after a not-guilty verdict, to assuage any juror concerns about releasing the defendant back into society, if they returned such a verdict. I think it would be preferable to assure the jury that the defendant would be "automatically" held indefinitely in the event they chose "not guilty by reason of insanity," since this is the practical reality. However, as a Boston murder defense lawyer, it's my opinion that as long as the judge assures the jury that it is "extremely likely" that such commitment would result and the defendant would not be released to society, that would represent a major step forward in these types of cases.

We'll know soon enough.

Not too much time will pass from this point, before we find out what this judge will instruct this jury on, and how this is all going to play out. A verdict of “Not guilty by reason of insanity” is going to be made more likely if the judge reassures the jury on the “most likely” destination of the defendant if they find him “not guilty”, but it’s no guarantee. Juries have always been reluctant to return these verdicts. That’s unfortunate, for two reasons: 1) Many times, the evidence clearly calls for it; and 2) If such a verdict is returned, it doesn’t mean the defendant didn’t commit the act, and it doesn’t mean the defendant walks away free. If anything, a defendant receiving such a verdict ends up in a place even worse than just prison: It’s a state prison filled with mentally insane criminals. How anyone can think that’s “Letting someone off the hook”, is beyond me. Hopefully, more public information and education will correct this widely-held misperception.

Apologies to my readers for the gap since my last post: I was away from my office on a much-deserved trip. Today’s post is about a recent Supreme Judicial Court ruling, which doesn’t bode positively for many criminal defendants who, for a variety of legal and situational reasons, never should have been charged with a crime in the first place. (Yes, this happens a lot more than many people might think.)

Consider the story of one “Tina Boe”, a pseudonym used by court officials to describe the case of the following woman. There are actually two levels of errors that produced a considerable injustice here, so let’s take them one at a time: 1) In a hit-and-run Massacusetts car accident, “Ms. Boe” was mistakenly indentified as the driver of the car who ran from the scene after this accident. In fact, although this car was registered to "Ms. Boe," she was not driving the car when the accident occurred – it was driven by another man. Because the license plate of the fleeing car was written down by someone at the accident scene and given to the police, the police department involved filed what is known as an “Application for Criminal Complaint” against the registered owner of the vehicle – “Tina Boe” – seeking that she be charged criminally with Leaving the Scene of An Accident, a violation of Massachusetts General Laws Chapter 90, Sec 24. The penalties for this crime vary, depending on whether the Operator is charged with one or more of three forms of this offense: A) Leaving the Scene of Property Damage only (Penalty: Fine of $20 to $200; and/or a jail sentence of between 2 weeks and 2 years); B) Leaving the Scene of Personal Injury Not Resulting in Death (Penalty: Fine of $500 to $1,000, and/or a jail sentence of between 6 months and 2 years); or C) Leaving the Scene of Personal Injury Resulting in Death (Penalty: Fine of $1,000 to $5,000 and/or a state prison sentence of 2 ½ to 10 years or jail for 1 to 2 ½ years. Regardless, for this offense there is a minimum mandatory 1 year sentence.) Even for the least of these charges, this is still a serious offense.

When a police department or anyone else takes out a criminal complaint against someone (which often involve offenses such as assault and battery, motor vehicle offenses or sexual assaults,) the person against whom the allegations are made is sent a notice by the court clerk where the complaint was filed, to appear at what is called a “Clerk-Magistrate’s Hearing” (alternatively referred to legally as a “Show Cause Hearing”.) At this hearing the Clerk or Assistant Clerk of the court hears from the person or organization filing the complaint (here, police department involved,) as well as the respondent (the person against whom the complaint was brought,) together with any witnesses. At that conclusion of that hearing, the Clerk will either grant the petitioner’s complaint, and issue formal charges against the respondent, or will deny the complaint, at which point the matter is dismissed, no charges are filed, and no further action of any kind is taken against the respondent. The respondent will have no criminal record of any kind related to that matter, nor will a Probation Record be generated from the matter. If ever asked by a potential employer or any other organization, “Have you ever been charged with a crime?”, the respondent can always answer “No.”

However, if the Clerk allows the complaint, formal charges will then be issued against the respondent, who then instantly becomes a “defendant” in a criminal prosecution. A formal Massachusetts Criminal Offender Record Information (CORI) file is generated, reflecting that the person has been charged with a crime, an accompanying Massachusetts Board of Probation Record is generated, and the relevant District Attorney’s Office takes over to prosecute the case. How it ultimately turns out, always varies. But even if the defendant is ultimately found not guilty of the charge(s), that person will still always have a CORI, and a Board of Probation Record. Therefore, when an Application for Criminal Complaint has been taken out against someone, what happens at such a Clerk’s Hearing (“Show Cause Hearing”,) is extremely critical.

Which brings us to Mistake Number Two in this case: The day Ms. Boe went to court to appear at this Clerk’s Hearing, she was mistakenly directed to the wrong hearing room. Because the Clerk and the police prosecutor awaiting her determined that she “never showed up”, the Clerk allowed the complaint, and formal charges were issued against Ms Boe. At that point, all the negative consequences that I just outlined above (when a complaint is granted against someone,) became a reality for “Tina Boe” – a completely innocent person.

When criminal charges were formally brought against Ms. Boe, and Judge Kathleen Coffey of the Boston Municipal Court learned of these twin errors and the injustice that resulted, she granted a motion the defendant filed, called a Motion To Expunge the Record. As its name implies, this is a Motion to essentially erase the fact that criminal charges were ever even brought in the matter. Its specific purpose is to redress a glaring injustice done to a defendant, when it appears from all the evidence introduced, that the defendant never should have been charged by the Commonwealth in the first place. The judge’s order in this case directed the state Commissioner of Probation to expunge (essentially remove from all public records,) Boe’s CORI and Probation Record. This is fair and just relief, and indeed, Judge Koffey described it as such in her Order.

However, the state Commissioner of Probation didn’t wish to comply, and appealed the judge’s ruling to the Massachusetts Appeals Court, questioning the judge’s authority to issue such an Order. Soundly, the Appeals Court denied the Commissioner’s appeal. When the matter finally appeared settled at that point, the SJC got involved – and ruled that the judge lacked the legal authority to grant the Motion to expunge the record in this case.

In my legal opinion as a Boston criminal defense lawyer, this ruling lacks the fundamental fairness that should emanate from the state’s highest court. While the opinion may be technically accurate in terms of its analysis of the authority that a District Court judge has, it flies in the face of the spirit – and the practical meaning - of the word “justice”. While the court did rule that judges have the authority to seal criminal records – and that judge Koffey could order Tina Boe’s record in this matter sealed – that does little for this defendant as a practical matter. She still has a CORI; she still has Board of Probation record – and always will have both. If she is ever asked in the future by a potential employer, academic institution, or any other organization if she has ever been “charged” with a crime (even though she wasn’t convicted,) she must answer “Yes.” And within this entire matter, she was completely innocent – she wasn’t even present at the scene of the crime.

As I‘ve noted before, my law school professors used to tell me, “Bad cases make good law”, meaning it’s the tough rulings that can often serve higher purposes later on. Perhaps, but tell that to whoever “Tina Boe” really is. I don’t think she’d agree. Aside from the wake-up call to reality that this ruling should bring to the SJC, what this case illustrates is the extreme importance that attaches to the outcomes of Clerk’s Hearings, or Show Cause Hearings. Because these hearings often do not involve a preceding arrest of the person against whom the complaint is brought, they are sometimes perceived by respondents as not being very serious, or requiring a lawyer’s expertise. Such a view couldn’t be more foolhardy. If you or someone you care about has received a notice to appear at such a hearing, whether the complainant is an individual person or a police department – always hire an experienced Massachusetts criminal defense attorney to appear and represent you at this hearing. If you don’t and the complaint is allowed, the consequences will follow you for many years to come.

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