Boston Criminal Attorney Blog

The conviction of a Massachusetts murder defendant was recently overturned by the Massachusetts Supreme Judicial Court, for a rather interesting reason. That reason centered on a suspect’s constitutional right to counsel while in police custody.

The defendant, Jerome McNulty, was arrested by Salem police on the morning of March 29 2001, for the murder of his girlfriend. The time line of what followed was key to the SJC’s decision to overturn the conviction: Upon McNulty’s arrest, he was read his Miranda Rights. A custodial interrogation was then conducted at approximately 9:12 AM, by a Salem detective and a state police sergeant. The interrogation took a break at approximately 10:00 AM. The defendant had told police when he was arrested that he did not have funds for an attorney, and at approximately 10:27 AM, an attorney was appointed to represent him. That attorney repeatedly called the Salem police station, asking to speak with McNulty, but he was told that the defendant was unavailable. On one occasion when the attorney called the police station back, he was told by a booking officer – the very same booking officer that had booked McNulty – that she could "neither confirm nor deny" the defendant’s presence at the police station. In other phone calls the attorney made to the station in attempting to speak with the defendant, the attorney was told that he’d have to speak with the department’s public information officer, and was transferred only into that officer’s unattended voice mail. In each and all of the attorney’s phone calls to the police station, he repeatedly asked police staff to pass along a specific message to the defendant: Do not say anything to police investigators.

Clearly, the police officers involved were engaged in an orchestrated effort to prevent any messages from the attorney, ultimately getting to the defendant. The defendant ultimately did not receive the attorney’s phone messages until 10:45 AM, and by that time had already signed a statement essentially admitting to the murder. The attorney arrived shortly thereafter, and was prevented from seeing the defendant for an additional 20 minutes while police investigators wrapped up getting the defendant’s signed statements.

The defendant’s attorney filed a motion to suppress the defendant’s post-arrest statements to police as violating his constitutional right to counsel, but Superior Court judge David Lowy denied the motion. The statements were admitted into evidence, and the defendant was convicted at a Superior Court jury trial. The question before the SJC: Were those post-arrest statements properly admitted at trial, given the fact that police investigators failed to pass along repeated messages from the defendant’s attorney, to not speak with police investigators until the attorney’s arrival?

According to Justice Margaret Botsford, who wrote for the majority of the five justices hearing the case, the answer is "No". (It should be noted that two of the seven justices on the court were not present at this argument, hence only five voted.) Botsford wrote that under a prior decision the SJC rendered in 2000, Commonwealth v. Mavredakis, the police were required to apprise a defendant of communications from his attorney, if those communications directly affected his right to counsel. The court’s majority found that the messages that McNulty’s attorney had asked be given to McNulty, related directly to McNulty’s right to counsel. Because the attorney’s specific instructions on this point were not relayed by police to the defendant, the defendant’s subsequent agreement to continue to speak with police, and to sign a statement without his lawyer present, did not constitute a knowing or intelligent waiver of his right to counsel.

Justice Ralph Gants wrote a strong dissent to the majority opinion. Gants wrote that while the police do have a duty to inform a suspect in custody of an attorney’s efforts to render assistance, they are not obligated to do anything more than that. “The [majority] appears to believe that this (ruling) is not a new addition to the ‘duty to inform’, but it is.” “We have never before declared that the ‘duty to inform’ includes a duty to communicate an attorney’s specific legal advice to a suspect.”

A spokesman for the Essex County District Attorney’s office said, “Given the significant change in the law as a result of this decision, we believe the case should be heard by a full panel of all seven judges. In this case, two judges were not present, and there was a strong dissent.”

As a Boston Massachusetts criminal defense lawyer, I can certainly see why both sides to this argument feel very strongly. To those who feel this decision weighs too heavily in favor of defendants' rights, I'd ask that you consider this question: Does the constitutional right to counsel represented in the Miranda Rights effectively mean anything, if an attorney's advice to a suspect is deliberately (or even accidentally) blocked by police before an attorney arrives to meet his client? Think about it.

In my previous post on this subject, I discussed how the U.S. Supreme Court is currently weighing the constitutionality of a statute passed by the state of California in 2005, to limit the sale of graphically violent, interactive video games to minors under the age of 18.

Once again, the First Amendment is front and center here. This Amendment to our constitution – literally, the first Amendment made to it, allows us all to speak openly against the government, a fundamental right that many nations do not allow their citizenry. There are forms of speech that are not protected by the First Amendment, such as obscenity. Other forms of such “unprotected speech” include speech which creates a “clear and present danger” of imminent illegal action; speech which contains narrowly predefined "fighting words"; written or spoken falsities (libel or slander, which can be punished by civil suit); and speech that is restricted because the government can demonstrate a "narrowly tailored" "compelling state interest".

So free speech is not absolute, but in my view as a Boston criminal defense lawyer, the meaning of the First Amendment has been distorted in recent years to allow for all manner of violence and savagery to be paraded throughout our nation – under the aegis of “free speech.” The result has been a “quicksand effect”, dragging down a nation that was once admired for its morality and decency, to a country infected with violence, moral perversity and the cultural degradation that accompanies such permissive thinking.

Too often, the First Amendment has been used as the constitutional basis to allow for the most destructive, offensive and dangerous forms of “speech” imaginable. You see, from its original intent of protecting the public’s right to speak out against government officials, the First Amendment has been judicially expanded over recent decades, to encompass what is now known as “commercial free speech” – and it is this concept (commercial free speech) that is being used presently to prevent the state of California from prohibiting the sale of violent video games to minors. The argument advanced by business organizations like the video game industry, is that their product is “commercial free speech” and thus that the government cannot abridge their right of “free speech” by preventing the sale of its product to underage minors.

That is an argument as twisted as the products that these companies manufacture. If these manufacturers wanted to market a game that criticized the government or government officials in some manner, then I would fully support its right of “free speech” in that manner. But the First Amendment should not be used as an excuse to allow anyone at all to manufacture the most dangerous, pernicious, and violent of products imaginable – products that interactively entice and reward the player for committing the most barbaric of violence - all under the aegis of “free speech.” Not when violent crime committed by youths is rising exponentially. Not when scientific, medical evidence exists to prove that exposure to such violence detrimentally harms underage minors. Not when sociological evidence demonstrates that these games encourage “copycat behavior” in the real world. Not when our culture has descended from a nation that once prided itself on moral values and civic decency, into one where the most vile of acts are witnessed all around us every day.

Need further evidence of these effects on our youth? Look no further than the October 2009 home invasion and murders in New Hampshire: 18-year-old Steven Spader, the alleged brains behind a nightmarish plot to burglarize a random New Hampshire home and kill its occupants “for fun”, has stated that he frequently played such violent video games. One of Spader's co-defendants testified that when Spader was stabbing to death the 42 year-old woman he murdered, Kimberly Cates, he "was ecstatic"; this co-defendant testified that when the woman was still gasping for breath, he sliced open her throat, and when he was finished, he jumped around the room, saying he felt like he was more powerful than he ever had before. Spader and co-defendant Christopher Gribble wielded a machete and knife in the pre-dawn attacks on Oct. 4, 2009, slashing 42-year-old Kimberly Cates to death and seriously injuring her 11-year-old daughter, Jaimie, who survived the attack by feigning her own death while being beaten. Numerous other examples of barbaric behavior in youths fueled by violence in media, abound.

What is wrong with supposedly intelligent, educated minds, which cannot see the direct link between such barbaric video games, and the barbarism that is rising in our communities?

Despite this obvious causal relationship, I feel a majority of the justices on this Supreme Court will once again use the First Amendment, and its noble, original goals, to allow this degradation to spread further throughout this country. I feel it likely that the court will rule in favor of the video game industry’s “free speech” rights, and against the state of California’s laudable efforts to stem the flow of damage being inflicted on our youths, and its efforts to decrease the all-too-often sadistic violence that plagues our cities and towns. It isn’t hard to see the writing on the wall. In oral arguments before the court last month, questions from the bench posed by several justices already show where they are leaning. Some of these questions belie attitudes that are shocking to me, as a practicing attorney.

Some excerpts:

• Justice Anthony Kennedy (considered by many court observers to be a moderate conservative,) acknowledged, when questioning the attorney for the state of California, that there has existed for many years a consensus that the sale of sexually obscene material to underage minors does not enjoy complete First Amendment protection, and that states can regulate the sale of such material to underage minors. He then added, however, “You’re asking us to go into an entirely new area where there is no consensus.”

• Justice Antonin Scalia questioned whether a state could define “deviant” violence, adding, “Some of the Grimm fairy tales are quite grim.”

• Of fairy tales, comic book and video game violence, Justice Ruth Bader Ginsburg asked, “What’s the difference?” Thankfully, the attorney for the state of California answered the important difference lay in the interactive nature of the video game, where the young adult is encouraged to become a violent, barbaric aggressor.

• Yet the most shocking of the Justices comments seemed to come from the court’s newest member, Justice Elena Kagan, who termed the first of such violent video games to be manufactured, Mortal Kombat, as “iconic”, and further claimed that many law clerks know how to play this game. Notes to Justice Kagan: Number One: “Iconic” is a term that has been generally reserved to describe persons, places or things that are admirable, not the opposite. Choose your words carefully. Number Two: Mortal Kombat is a game so violent, that it rewards players who conquer their opponent by ripping out their spine. Is this what we want the developing brains of our young teenagers to be filled with? Would Kagan really hire a law clerk who she knew played these games – and if so, what would that say about her ability to judge character? Does the average person not know what kinds of adults will develop from children who have been exposed to this savagery?

Some hope shone through from questions and comments posed by Chief Justice John Roberts and Justice Stephen Breyer. Roberts read a description of a recent video game (I won’t name it here,) in which a girl begs for mercy before being decapitated and then doused with gasoline. Breyer expressed revulsion about some of these video games, and said that it made “common sense” to keep children from engaging in reward-filled games in which they torture and kill human figures.

Let us all hope and pray that such common sense prevails in the court’s decision in this case, because the decision will either begin the process of this country righting itself morally and culturally, or encourage a process in which we descend down even further into the crevasse of violence, incivility and barbarity. All – of course – under the noble, intellectually highbrow concept of the First Amendment and “free speech.” Let us hope that the Justices on the court will embrace Justice Potter Stewart’s philosophy over "hard-core" pornography, or what is “obscene,” saying, "I shall not today attempt further to define the kinds of material I understand to be embraced . . but I know it when I see it . . . " Hopefully, the Justices on the court today know such violent perversity when they see it, and vote to allow California and other states to prevent the sale of this barbarity to teenage minors.

Unfortunately, I’m not optimistic about the outcome. I hope and pray that I'm wrong.