Boston Criminal Attorney Blog

On Oct. 17 2010, police officers in the town of Mount Pleasant, New York, shot and killed Easton resident Danroy “DJ” Henry, age 20, outside a bar at a shopping center in that town, not far from New York City. Henry was at the bar with friends, after attending a football game between Pace University (where he attended college,) and Stonehill College. Police alleged that officers shot Henry after he struck police officers with his car. Other witnesses disputed this account, saying that Henry was only moving his car at the request of police, when they suddenly jumped on the hood of the car and shot him through the windshield. Immediately Henry’s death, his family disputed the police Department version of events, and called for an immediate investigation.

The mother of one of Henry's friends who was in the car and who was also shot and wounded in the incident, disputed the police account in an interview with CNN shortly after the shooting. Donna Parks said that Henry and others in the car were waiting for a friend to come out of the establishment "when a police officer banged ... on the window." In response, she said that Henry began driving after her son, Brandon Cox, told Henry that he thought police wanted him to move his car. "Another police officer with his gun drawn just ran out in front of DJ's car," as he was moving it, said Parks, who insisted that Henry had no time to stop. Parks has also told CNN that after police shot Henry multiple times, they "pulled him out of the car, handcuffed him, put him face down on the ground and left him there for 15 to 20 minutes."

Amidst calls for an investigation, shortly after Henry’s death, the Westchester, New York District Attorney’s Office commenced a grand jury inquiry of the incident. Yesterday, that office announced that, “after due deliberation on the evidence presented in this matter, the grand jury found that there was no reasonable cause to vote an indictment.’’

What is a grand jury and what does this mean? A grand jury is intended to be part of our government’s system of checks and balances, designed to protect against abuses of governmental power. A grand jury is comprised of typically 16-23 persons, who hear evidence presented by the government in its attempt to seek an indictment of a person (or corporation.) An indictment is a formal charge that someone has committed a felony-level offense. The system is supposed to require a prosecutor to first convince the grand jury, (in theory an impartial panel of ordinary citizens,) that there exists reasonable suspicion, or probable cause, that a crime – usually a felony - has been committed. Witnesses can be required to appear and testify before a grand jury, which may sit for several weeks at a time. Unlike a trial, the grand jury's proceedings are secret; neither the subject of the grand jury proceedings, nor his attorney, is generally present for witness testimony. In what surprises most people, a judge is usually not present either. After hearing the prosecutor’s evidence, the grand jury returns either a "true bill" (meaning that a prosecution will go forward), or "no true bill" (meaning the case is dismissed.) Typically, 12 members of the grand jury must vote to indict, for the case to proceed to formal charges and a trial.

A lot of people view this grand jury’s findings very confusing, to put it mildly. Not the least of these parties is the U.S. Department of Justice, who immediately following the grand jury’s report, announced that they were launching their own, independent inquiry into this killing. The purpose of the investigation will be to determine if police officers committed any violations of Henry’s federal civil rights. Additionally, U.S Senator Scott Brown has called for a complete investigation of this shooting death.

The reason for all this apparent doubt: Why would someone who was not committing a crime, who was not hiding any contraband, and who had no reason to attack police, deliberately try to ram them with his car? Henry did not have a violent history. It strikes several observers that this District Attorney might have been presenting an intentionally weak case to the grand jury, to “cover” for members of the Police Department involved here. Why this theory? District Attorneys’ offices and Police Departments are professional partners; they are essentially co-workers. They interface with each other and cooperate with each other, to prosecute crimes. To ask a District Attorney to objectively and impartially present evidence to a grand jury in a case like this, strikes some observers as the fox guarding he chicken coop. To quote the young victim’s father, Danroy Henry, Sr., “This process is most analogous to a person committing a crime which their siblings investigate and for which their closest relatives determine their punishment.’’ The family’s New York civil rights lawyer, Michael Sussman, has openly questioned the impartiality of the District Attorney, who works closely with local police, stating that the grand jury process is heavily weighted toward the prosecution and alleging that if prosecutors were truly seeking indictments in this case, those indictments would have been returned. In making his point, Sussman quoted a famous 1985 New York appellate court judge’s comments on the grand jury process: “A District Attorney can indict a ham sandwich.”

While I’m not prepared to say that a cover-up is going on here between the Mount Pleasant, New York Police Department and the Westchester County District Attorney’s Office, as Dedham Massachusetts criminal defense lawyer, I believe strongly that a more independent party should have investigated this case. That is simple common sense. By doing otherwise, police and prosecutors in this case have created the appearance of bias and partiality. They brought this suspicion onto themselves, and they should not have. I work with police and prosecutors every day. The vast majority of them are honest, ethical professionals. What was done with this investigation does not reflect well on that majority. Complete transparency is needed here.

Just last week, I criticized Gov. Deval Patrick for his proposal to change the way public defenders are provided for indigent criminal defendants. Today, I want to do just the opposite: Commend him for another of his proposals dealing with criminal law.

Specifically, Gov. Patrick should be lauded for his legislative initiative to repeal the current law in Massachusetts that requires mandatory minimum jail and state prison sentences for anyone convicted of “dealing” drugs in a “school zone.” I’ve blogged and spoken previously on the foolishness of mandatory minimum sentencing, which almost always results from a Legislature pressured to act on largely misdirected public anger following high-profile crimes. Several years ago, that public pressure descended on the Legislature primarily due to inner city frustrations over the problem of drug dealing in urban areas; specifically, from parents' fears that drug dealers were actively targeting young school children to sell drugs to. The result? The Massachusetts Legislature passed a law that required mandatory minimum jail sentences for anyone convicted of any kind of an offense involving a controlled substance or otherwise illegal drug.

Care to know just how harsh and unjust this law is? If anyone is convicted – whether following a trial or if a defendant otherwise enters a pre-trial plea equating to a “conviction” – of a drug offense occurring within 1000 feet of a school, that person is automatically sentenced to anywhere from two to 15 years behind bars. If the term is 2 ½ years or less, the sentence can be served at a county House of Correction; If it is more than 2 ½ years, the sentence must be completed at a State Prison – and that is extremely severe. I don’t think anyone – least of all a clueless Legislature not known for its collective intelligence – realizes just how great a distance 1000 feet really is. Let me put it in sports terms: Would you think that a football field is a long distance? It’s 300 feet. 1000 feet is over three football fields in length. The idea behind this law was, supposedly, to prevent drug dealers from targeting children in (largely urban) schoolyards and school grounds. Instead, it has done two things: 1) Created a foolishly large, expansive distance to measure an alleged drug crime from in relation to any school, and 2) Included in that law, any drug transaction deemed illegal, no matter how minor.

That means the following: If you or someone you cared about were charged with and convicted of selling a nickel or dime bag worth of marijuana to a friend – over three football fields away from a school and with no intent whatsoever to sell to any children – that person would automatically be sentenced to a minimum of two years in jail, and quite possibly more. The judge would have no say in the matter. If a conviction – even a plea otherwise amounting to a conviction – were entered, the judge would have no choice but to sentence the defendant to the mandatory minimum jail time. As a Dedham, Massachusetts drug offense lawyer, I've seen it happen on far too many occasions.

That’s the kind of foolish, unintended consequence that can result from shortsighted mandatory minimum sentencing laws. This law is unjust, unwise, and has resulted in hundreds and hundreds of jail cells being filled with nonviolent offenders – instead of violent criminals. That’s why Massachusetts’ jails and state prisons are bursting at the seams. We need those jail cells for violent and dangerous offenders, so that the public can be protected from them.

As a Dedham, Massachusetts criminal defense lawyer, it’s amazing to me that more informed observers can’t make the connection between why parole officials might wish to create space in our prisons, and why those prisons are so over-crowded in the first place.

Gov. Patrick’s proposal calls for shrinking that “drug-free zone” from 1000 feet of a school, to 100 feet. The Massachusetts Bar Association has endorsed this idea, as have several leading criminal defense lawyers. The one party opposed is Attorney General Martha Coakley. Her reasons, couched in boilerplate crime-fighting language, are unsupported by the facts. This proposal should pass, intact, and soon.

Mandatory minimum sentencing laws are horrible ideas. Judges should be allowed to retain the sentencing powers that are inherent in their important positions. They should not be handcuffed, forced in many instances to watch justice manhandled out the door.