Boston Criminal Attorney Blog

This past Wednesday night, the Massachusetts House voted, 138-17, to approve legislation that would both reduce the waiting periods now required for sealing criminal records from public view, and prohibit employers from asking job applicants about prior criminal records on initial job application forms.

As my readers know, I’ve blogged previously about CORI reform efforts in Massachusetts. As I’ve said in this blog and elsewhere, a big problem complicating reform efforts in this area of Massachusetts criminal law, is that different people – especially employers – have different needs for this kind of information. Some need very extensive information, such as public safety employers, financial institutions or child-care providers. Other types of employers don’t typically need this kind of detail. Strict law-and-order advocates want each person convicted of any crime at all, to be required or produce a detailed record. Others feel that someone who has been found guilty of a relatively minor offense should not have to carry a “Scarlet Letter” for that offense, potentially foreclosing a number of opportunities for them in the future.

The legislation passed by the House the past week, would change present law to allow sealing of felony crime records 10 years after sentencing for an offense, instead of the current 15 years. The bill’s advocates argue that it will reduce barriers to jobs and housing now faced by hundreds of thousands of Massachusetts residents with prior criminal records. The House bill would also permit sealing of misdemeanor convictions from public view, such as Masschusetts assault and battery, or simple assault after five years, versus the current 10-year waiting period. House Judiciary Chairman Eugene L. O'Flaherty, D-Chelsea, said the intent of the current measure, the product of several years of legislative work, is supported by national studies that show that convicts who remain out of the criminal system for six or seven years after committing previous crimes, are less likely to re-offend. O’Flaherty and other advocates of the House bill argue that the reforms are “smart on crime as opposed to being weak on crime”, in that the reforms supposedly encourage convicts with prior criminal records to join the workforce. That may be true, but all it’s going to take to knock this argument down, is the media reporting just one Massachusetts murder or Massachusetts rape case committed by someone with a CORI who didn’t have to report a prior violent crime he or she committed because it was older than ten years, and, to be blunt, all hell will break loose.

The Massachusetts Senate is currently offering its own version of CORI reform, but its version provides for early parole for non-violent offenders now serving mandatory sentences, after they complete two-thirds of their sentences. The House version passed last Wednesday doesn’t contain this provision, which is designed to direct inmates to treatment programs after their early release. As is customary, differences in the two bills will be worked out in conference committee, before any final bill is sent to the Governor’s office. For the record, however, three points about the House version: 1) Police departments would continue to have immediate access to all criminal records of any kind; 2) Crimes involving Massachusetts murder or manslaughter would not be subject to sealing; 3) Massachusetts Sex offense records could not be sealed and would remain accessible to the general public.

Regardless of what comes out and is finally enacted into law, it will hopefully be a balanced approach to providing employers and the public with the information they need about someone’s prior criminal history, as well providing persons convicted of certain crimes with ability to begin anew without being “marked for life.” To give readers an idea of just how many people could be affected, a recent Pew Charitable Trust study indicates that one in 24 adults in Massachusetts, or more than 200,000 people, were either in jail or on parole or probation in Massachusetts at the end of 2007. If that’s not enough, even higher numbers than that are estimated to have older criminal records that would affected by the legislation.

The U.S. Supreme Court’s ruling earlier this week, that juvenile sentences of life without parole in non-homicide cases violates the Eight Amendment’s ban on cruel and unusual punishment, brought humanity and civility back into many courthouses across the United States. No one, this writer included, doubts that juveniles can commit the most horrific of crimes. Nor do I doubt that, if convicted, those juveniles deserve swift and certain punishment – often including lengthy incarcerations. But for too many juvenile defendants in too many courtrooms in this country, “justice” has resulted in sentences of life without possibility of parole (“LWOP,” in criminal law circles,) and in many cases these sentences have produced a severity that is devoid of mercy, and devoid of hope.

Even more disturbing, is that in the vast majority of these non-murder cases, the sentences of life without parole that have been given, have been the product of mandatory sentencing, the dangers of which I have written about previously. Mandatory sentencing has been nothing less than judicial handcuffing, a knee-jerk reaction to crime often producing the worst of legal injustices while almost never achieving the claimed result of lowering crime rates. The Supreme Court’s ruling this past Monday in Graham v. Florida is just such an example of a horrid injustice produced by mandatory sentencing laws. The petitioner in this case, Terrance Jamar Graham was sentenced to a mandatory life term at age 17, without possibility of parole, after he violated his probation sentence for an earlier home invasion robbery; the year before that he was involved in an attempted robbery of a Florida restaurant. Obviously, this kid was trouble. Obviously, he needed to be taught a lesson, and obviously, that lesson needed to involve considerable jail time.

But to sentence a 17 year-old relatively small-time offender to life in prison, without the possibility of parole, for a probation violation? That was facially cruel and unusual, and it was a victory for justice and fairness that the Supreme Court heard this case and ruled as it did. Many such sentences have resulted from crimes that involved far less serious offenses, such as drug offenses, sexual assault and even assault and battery. Approximately129 juveniles in prisons across the U.S. are serving such sentences.

While some of these cases involve less serious crimes, many of them involve very serious offenses – and this ruling does not limit the ability of judges to punish such defendants severely, with lengthy prison sentences, when the facts merit such. All it says it that the government cannot preclude the possibility that these convicts, sentenced as juveniles, can at some point in their adult future make at least an argument for their release back into society. Notably, this ruling does not guarantee the release of such convicts. Many of them will spend 10, 20, or more years in prison before they even get the chance to make a case for their release. And when such convicts do offer their arguments for parole, many will be denied. But it affords convicts who have been sentenced as juveniles, at the very least, the opportunity to make their case for release at some point in the future. To quote Justice Anthony Kennedy, who wrote the majority opinion for the court, "The Eighth Amendment does not foreclose the possibility that persons convicted of non-homicide crimes committed before adulthood will remain behind bars for life." It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society."

Importantly, the court reaffirmed the fundamental basis for differentiating between juveniles and adults in criminal sentencing. Citing earlier decisions it issued on this point, the court said that, as compared to adults, juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are not as well formed. These realities mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” As a result of these factors “Juvenile offenders cannot with reliability be classified among the worst offenders. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.”

The majority's reasoning reflects widely-recognized differences between an adult and a juvenile personality. Someone under the age of 18 has not yet developed fully into a mature human being – emotionally, psychologically or even physically. Scientific and medical data have shown that generally speaking, juveniles are less able to assess risk, control impulses and comprehend consequences, than are adults. While without doubt juveniles can commit crimes equally horrific to the crimes adults commit, their capacity for growth and change is greater than in adults. To foreclose the possibility of penitence, growth and reversal in character, is not only cruel and unusual, such sentencing ignores and denies the human capacity for positive change - the capacity for correction that our corrections system is supposedly based upon.

The Graham ruling will be widely felt in criminal courts across the U.S. The ruling will invalidate sentencing laws affecting life without parole for juveniles in at least 37 states, including New Hampshire and Rhode Island here in New England, as well as the District of Columbia and the federal government. However, the court’s decision does not affect seven states, including Massachusetts, Connecticut and Vermont, which allow life without parole for juveniles in cases of homicide. Also, there are six states that do not use this penalty for any juvenile offenders at all, and this ruling obviously does not affect those states.

Again, the court's decision in Graham does not prevent or limit a judge's ability to deliver lengthy and harsh prison sentences to juveniles when warranted. It only recognizes that juvenile sentencing should take into account the possibility of the positive change that can accompany human maturation beyond juvenile development.

Importantly, this ruling does not apply to juveniles that have been sentenced to life without parole for murder convictions. It applies only to non-murder convictions. Hence, convicts such as John Odgren, recently convicted of Murder One here in Massachusetts last month and sentenced to life without possibility of parole, will be unaffected. I think the Odgren case presents the penultimate case for the court to examine the constitutionality of juvenile sentences of life without parole in murder cases, and it remains possible that in the future the court may address such a case, but for now, those convictions remain unaffected.

Here’s an interesting question someone put to me recently. It has to do with rape and sexual assault:

“Let’s assume that I decided to pretend I was gay to get in with the more trendy women who hate me for being a “heterosexual pig.” Assume I got such a woman back to my place (on the pretext that I was gay,) and she starts coming on to me, saying I should try it (sex with a woman,) as I might learn to like it. Now assume I said something like “OK; I suppose if we really must, I’ll try it.” Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?”

Well, well – Creativity never ceases, no? This man’s question is premised upon a legal concept known as “Fraud In the Inducement.” He’s borrowed this legal concept from contract law, and the theory has been used in legal practice areas as seemingly disparate as business litigation and family law/domestic relations law. This legal theory – essentially a defense – holds that if someone is enticed or induced to enter into a contract based upon fraudulent representations, then that contract is either void or voidable (“void” meaning “Void Ab Initio”, Latin for “Void from the beginning”; and “Voidable” meaning, cancellable at the election of the party claiming fraud.) In business litigation, for example, if one party to a contract has been induced to enter the contract due to material misrepresentations, the party seeking relief may be entitled to relief from the obligations imposed upon him in the putative contract.

In a family law or domestic relations situation, if one party to a marriage has been enticed to enter into the contract based upon fraudulent representations, the marriage may be deemed void. A classic law school example of this, is the “spouse” who, prior to entering into the marriage, represented that he or she wanted to have children, when in fact the person never intended to have children. After the marriage is consummated, he or she declares that children will never be produced from the marriage. Fraud of that nature can lead to a judicial declaration that the marriage was “Void Ab Initio.” As similar example of “Fraud In the Inducement” of a marriage, would involve a “spouse” who represented to his/her partner that he or she was the product of or a member of a prominent family (say a Rockefeller or similar,) when in fact they never were.

The gentleman who asked the above question, however, has confused this legal concept with another criminal law theory that is used in cases of consensual sexual relations that result in the transmission of sexually transmitted diseases, or STD’s. This is the type of situation that occurs when one person, who is aware that he or she carries an STD, engages in consensual sex with a partner without informing that person of the fact that he/she has an STD. If the unwitting partner contracts that disease, the deceiving, or “silent” partner (as it were,) can be both charged criminally with Assault and Battery, as well as sued civilly for damages that result from that STD infection.

The legal basis for both criminal penalties and civil liability in this instance, is premised upon the absence of “valid” consent. Even though, in the example of an innocent person contracting an STD, both parties seemed to “consent” to the sex, “valid” consent would be lacking, as the “consent” that was granted by the innocent party, was obtained through fraud. The “fraud” in this context is the failure to disclose that the non-innocent party carried a communicable disease (an STD.) The legal theory providing for both criminal penalties and civil liability in this example, is based upon battery, which is the unconsented-to physical contact with another person. While inoffensive contact such as bumping into someone in a public setting is deemed “implied consent” and thus not actionable on a criminal or civil basis, sexual contact does not fall in this category.

Therefore, the answer to the question posed at the top of this post, “Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?” is, as of current case law in Massachusetts, "No." However, I wouldn’t suggest that eligible singles – men or women - resort to this tactic. In the beginning, end and middle of everyday actions, there is something called self-respect, and behavior like this doesn't reflect it. Better to become a more honest person, hit the gym, or both.

Now that the verdict is in on this case, the predictable debate over the insanity defense has followed in the vox populi. A number of media outlets have asked for my legal opinion on this verdict, and I’m proud to say that in the past 24 hours, I’ve appeared as a legal analyst on WGBH-TV’s Greater Boston with Emily Rooney, WBZ-AM Radio 1030’s Night Side With Dan Rea, as well as given interviews to New England Cable News and The Boston Herald.

Attorneys, editorial writers, bloggers and persons famous and unknown have opined about this case, this defense, and the verdict. Unscientific polls taken by some media (primarily the conservative talk radio show set,) have shown overwhelming support for the jury’s Guilty verdict. That’s understandable. Given that some of my statements to the media may have been received a little out of context, I’d like to put my position in writing for the record, here. For brief revisit of the insanity defense, see my previous post on this case.

A verdict of Not Guilty By Reason of Insanity does NOT mean that the defendant is released back into society, as though the verdict were simply “Not Guilty.” Essentially all defendants found Not Guilty By Reason of Insanity are committed to the state psychiatric hospital (Bridgewater State Hospital,) where they spend decades if not their entire lives behind bars and barbed wire. Also, a state “psychiatric hospital” is anything but a “hospital”, in the conventional sense of the word: It is the state prison for the criminally insane- surrounded by barbed wire, armed guards, searchlights, and everything you’d expect in a prison setting. While these defendants have a legal right to have their incarceration reviewed periodically, they are almost never released back into society. That’s just the practical reality.

Now that those issues are out of the way, some clarifications about where I stand on this defense: Some of my comments in the press seem to give the impression that I’m a strong advocate of the insanity defense; somem indicate that I believe that in this particular case, John Odgren should have been found Not Guilty By Reason of Insanity. Let me be clear: Neither is true. 1) As a Massachusetts murder defense attorney, I am not an advocate of using the insanity defense, for the primary reason that it almost never succeeds. 2) I believe that in this particular case, the evidence submitted into the record warranted a finding of a straight “Guilty” finding. What I said to the media, is that I believe that, when no other plea options are otherwise available, and when the evidence warrants it, a defense attorney should use the insanity defense and argue it vigorously. In the Odgren case, I think Odgren’s defense lawyer (Jonathan Shapiro) had no choice: One needn’t be a lawyer to see the limited options he had here: Odgren was found over the victim (James Alenson,) murder weapon in hand, his hands and clothes soaked in blood, admitting to all around him that he committed the murder.

The only other possible option that Odgren’s lawyer might have had (and I don't know whether he had this optiuon or not,) was to attempt to negotiate a plea agreement with the office of Middlesex County District Attorney Gerald Leone, to reduce the charge to a lesser offense, such as Murder In the Second Degree, etc. The benefit of such a possibility, is that if the District attorney were willing to agree to a plea bargain for perhaps Murder Two, a life sentence would be imposed, but the defendant would have the possibility of parole in 15 years (an additional benefit is that the victim’s family would be spared the ordeal of a trial, re-living the events of the murder.) However, a jury verdict of Guilty on a charge of Murder One caries a life sentence, with no possibility of parole, ever. The possibility of a potential plea deal, however, exists only if the District Attorney is willing to offer the plea. In this case, we don’t know whether District Attorney Gerald Leone was willing to go that route. My guess is, he wasn’t. Speaking practically, he would have had little reason to: The evidence against Odgren was overwhelming, and the success record on the insanity defense in Massachusetts is almost zero. So from the Commonwealth's perspective, why entertain a plea agreement?

That likely scenario (i.e., where no plea bargain was possible,) left Odgren’s lawyer with no choice. When I told the Boston Herald on April 29 2010 that Odgren’s lawyer “followed his conscience” in arguing this defense, I meant that his lawyer was making the best he could of the only defense option he was probably left with – the insanity defense. (And if I’m wrong about that, and the District Attorney was willing to offer a plea of Murder Two but Odgren’s lawyer rejected it, then I would characterize that decision as foolhardy.) I did not mean that I felt that an insanity defense was the one I would have chosen, if I had the option of negotiating a plea agreement. I did not mean that it is my opinion that the insanity defense is something that should be used often, or lightly. Nor did I intent to communicate that I felt Odgren was, in fact, legally insane at the time of this murder. I don’t feel the insanity defense should be used, unless there is no other legal option possible – largely because the success rate on this defense is so low. And importantly here, as a Norfolk County Massachusetts criminal defense lawyer, I don’t believe that John Odgren was legally insane at the time he committed this murder.

I believe that Odgren had several emotional problems, and apparently suffers from a mild form of Apserger’s Syndrome – but based on the evidence offered into the trial record, I don’t think he was, legally, insane at the time of the murder. Hence, I believe that the jury’s Guilty finding was, on a purely legal level, justified. A number of evidentiary factors cause me to arrive at this conclusion – most notably the following:

• Odgren had told several people prior to this killing that he knew how to plan the “perfect murder.”
• He had planned out the murder well in advance, choosing the particular bathroom in the high school and had planned an escape route (which became foiled when the victim stumbled out of the bathroom and out into the school hallway. There was also a witness in one of the bathroom stalls.)
• He exhibited consciousness of guilt immediately after the attack, telling people he shouldn’t have stabbed the victim.
• In tape-recorded phone conversations Odgren had with family members and friends from the jail before trial, he boasted of different stories he had given to police officers at the crime scene, and to police investigators afterward.
• He also boasted about knowing his Miranda rights when he was arrested.

The sum of these evidentiary factors lead me to conclude that, while Odgren clearly has emotional problems, he was nonetheless aware of what he was doing, was aware of the wrongfulness of his actions, and he exhibited considerable consciousness of guilt both before and after the murder. None of these factors supports a finding of Not Guilty By Reason of Insanity. Nonetheless, the jury did have the option of returning a finding of Murder In The Second Degree, and considering the plethora of Odgren’s emotional problems (which, while they did not render him legally insane, nonetheless left him a very disturbed individual,) and his young age at the time of this offense (16), I believe the jury should have opted for Murder Two. While this murder was barbaric, horrid and without any justification whatsoever, I believe there did exist facts that should have mitigated the jury’s verdict down to Murder Two. Again, while Odgren would have been eligible for parole after 15 years, an almost certain bet is that he would have spent at least twenty years in state prison (meaning he would be almost forty years old by the time he was released, in approximately 2030.) As for the immediate, I believe that Odgren should be transferred to Bridgewater State Hospital to serve his term and receive treatment for his emotional infirmities. Cedar Junction (Walpole) State Prison is not the appropriate facility for this 19 year-old boy. I don’t think that is liberal thinking, and I don’t think it’s conservative. I think it’s simply humane.

This case, which legally merited a Guilty finding, contrasts sharply with the John Salvi abortion shootings case in 1996, where the insanity defense was advanced (with no success.) In that very different case, the defendant was patently, clearly insane. (See my previous post.) Yet, that jury found him sane and guilty, and he was sentenced to life without possibility of parole, in a prison populated with some of the most violent, savage inmates imaginable. Salvi hung himself shortly afterward. Let me be clear: The world lost nothing great when John Salvi killed himself. But I think something of our humaneness was lost, in throwing a clearly insane man into a prison filled with sane but savage inmates. The goal of our criminal courts and the juries within them, is not to deliver vengeance - it is to deliver justice. And I submit that it is not just to throw an insane man into a prison filled with sane men who are some of the most violent criminals imaginable.

To repeat, I don’t 'advocate' the insanity defense. I simply believe that, when the evidence warrants it – as the evidence did in the John Salvi case and has in other cases – juries should be more open to considering it, and judges should be more open to more realistically instructing juries on what happens to a defendant who is so convicted: That the defendant will not walk free, but instead in all likelihood spend decades if not his entire life in a state mental hospital/prison. The public needs to know this, and more juries need to hear this, before they make their deliberations.