Boston Criminal Attorney Blog

In my previous post, I reported on the SJC’s ruling last week, restricting police authority to order the operator or occupants of a stationery vehicle to exit the vehicle, based solely upon the odor of marijuana. In their ruling, the SJC emphasized that the public’s approval in 2008 of the ballot initiative decriminalizing personal possession of an ounce or less of marijuana, was in effect a mandate that police and prosecutors concentrate their resources and efforts on serious crime.

It is this key point regarding the voters’ clear mandate in 2008 that police and law enforcement focus on serious crime and violent offenders, which I want to address now. I have blogged previously about the foolishness and counter productiveness of our present drug laws, state and federal. When it comes to marijuana alone, billions of dollars of taxpayer money are spent each year in this country, arresting and prosecuting an activity that has been proven scientifically, time and again, not just to be nor more harmful than alcohol, but far, far less harmful. As a Boston drug offenses lawyer, I have personally witnessed the waste of enormous police, court and prosecutorial resources, “chasing “this victimless, extremely benign recreational activity. Tens of millions of dollars are wasted each year paying police to chase and arrest, and then paying District Attorneys’ offices even more to prosecute, the use of a substance that is far, far less dangerous and far, far less harmful than a single can of beer.

These points have been argued rationally and responsibly for years now, by respected organizations such as the National Organization for the Reform of Marijuana Laws, which filed a supporting brief for the defense in this case. Time and again, NORML and state affiliates such as MassCann, have said that personal use of marijuana does not deserve the attention and the expense utilizing police resources that should inarguably be spent dealing with violent and predatory crime.’’

The relative medical safety of marijuana has been proven repeatedly, in a number of scientific journals. (I say “relative safety”, noting that any substance, if taken to extremes, can become harmful or toxic. To offer an extreme example, ingesting too much water could theoretically kill someone, as could ingesting too much food.) People blind to this fact need to shake off their blindness and political ideology, and consider their own observations since high school days. For myself, I can honestly and accurately say that in looking back over 30 years, and remembering all the friends that I knew who smoked pot as a teenage high school student, a college student, a 20-seonmthing, on into my thirties and 40’s. I have never known a single person to become “addicted” to pot. I’ve known people who have enjoyed it, but have never known anyone who became chemically, medically addicted to it. I compare that to the legions of people I have seen in my life become alcoholics. I’ve seen lives ended, lives ruined, and tragedy unrelenting from the use of alcohol. Yet I cannot recall anywhere near the same results with marijuana, and the scientific reason is clear: Pot is not addictive, and as far as harmfulness goes, medical studies have shown that a person would have to smoke the equivalent of at least a pack a day (approximately 24 cigarettes,) before risking lung cancer. Most people that I remember who smoked pot, smoked around 1 to 2 cigarettes a day, at most.

Despite all the scare tactics by opponents of decriminalization in 2008, the voters knew it then, and importantly, the justices of the SJC knew it when rendering this ruling. Let this landmark decision send a strong message to the Legislature, the Governor, to other states and to Congress: Marijuana policy to date has been flawed and foolish. Our tax dollars should be spent on pursuing, arresting and prosecuting violent crime and violent criminals, not on harassing innocent citizens for recreational use of a benign herb.

Not surprisingly, even in the wake of this landmark decision, Massachusetts police and prosecutors still don’t seem to “get it”: Their response to this ruling is to predict more Armageddon – the same kind they predicted in the 2008 ballot campaign. Commented Boston Police Commissioner Edward F. Davis. “I think this particular decision presents an enormous problem for us. We will be the only state in the country where this standard is in place. It just doesn’t make a lot of sense.’’ Hmm. Kind of like the way police predictions about decriminalizing pot never made sense. In saying this, I don’t mean to be sarcastic; I’m simply pointing out the unsupported foolishness of this kind of thinking. And the fact that I’m Boston criminal defense attorney doesn’t mean that I don’t admire a lot of police officials and prosecutors. In fact, I’m a fan of Suffolk County District Attorney Daniel Conley. I think he’s a fair-minded and responsible District Attorney.

I should note that while the 2008 ballot initiative decriminalized possession of one ounce or less of marijuana for personal, recreational use, as of present possession of more than one ounce remains a crime, as does “distribution” of pot. “Distribution” generally means the transfer or sale of more than one ounce. If you or someone you know has been charged with a marijuana offense or other Massachusetts drug offense, call us. We are very experienced in this area of criminal law, and we will make sure that your legal interests are protected to the maximum amount possible. We know how to defend these cases very well. Don’t choose just any lawyer: If the lawyer or law firm that is representing you is not extremely experienced in this area of law, you could end up in more trouble than you started with. If you or someone you care about is facing a Massachusetts drug offense, don’t make a mistake at this stage. Contact us for a free consultation.

This past week saw a major decision announced by the Massachusetts Supreme Judicial Court (SJC,) on the subject of the presumption of criminal conduct being associated with the use of marijuana. The ruling, Commonwealth v. Cruz, Mass. SJC No. 10738, overturns precedent, establishes a major new benchmark in this area of law, and represents a major victory for reasonable and logic-minded thinking toward Massachusetts marijuana laws. Given the importance of this ruling, I’m going to devote two parts to this post. Part Two will be published in a couple of days.

The ruling deals specifically, and for the time being only, with police officers’ authority to order the occupants of a parked vehicle to exit the vehicle, based only on the smell of marijuana smoke. At this time, the ruling appears to apply solely to circumstances where a vehicle is stationary, not moving, but the central point of the decision is that police and prosecutors can no longer presume that a person is engaged in criminal conduct, solely because officers may detect the order of marijuana in the air or on the person of a driver or occupant. The defeat of that presumption is an extremely important legal point in the development of sound and rational marijuana policy. These policies have been advocated by respected organizations such as Law Enforcement Against Prohibition (LEAP,) and others I will discuss in Part Two of this post, for years.

Some important background of the case that produced this key ruling: In the summer of 2009, two Boston police officers were patrolling in an unmarked car in the Jamaica Plain area. The officers pulled up to a car parked beside a fire hydrant; inside the car were a driver and a passenger. The officers testified that they noticed the driver in the car light a small cigar that they claimed is commonly used to mask the odor of marijuana. Approaching the vehicle, the officers claimed they smelled a “faint odor’’ of marijuana, and one of the officers asked the driver if he had been smoking. The driver answered that he had smoked some pot “earlier in the day.’’ Importantly, neither officer saw anything illegal in the vehicle, but claimed that the driver and the passenger both seemed nervous. The officers then radioed for backup and ordered the men out of the car, based solely on “the smell of marijuana and the way they were acting.” Forced out of their car, one of the officers then asked the passenger, (a Benjamin Cruz, then 19,) whether he “had anything on his person.’’ At that point Cruz responded that he had “a little rock for myself,’’ which turned out to be 4 grams of crack cocaine. Cruz was arrested.

A Massachusetts District Court judge ruled that the officers did not have appropriate legal grounds to order the passenger out of the car, based solely on the smell of marijuana, and nothing else. The Suffolk County District Attorney’s Office had argued that the smell of burnt marijuana itself was evidence of criminal conduct, and thus justified the officers’ exit order and any evidence that was discovered thereafter. Upon review, the SJC soundly rejected this argument. In a 5-1 ruling authored by Chief Justice Roderick Ireland, the court held that “Without at least some other additional fact to bolster a reasonable suspicion of actual criminal activity, the odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity to justify an exit order.” (Underline emphasis added.) The justices cited three separate scenarios in which police officers could legally order a passenger to exit a validly stopped vehicle: 1) If the officers reasonably feel that they could be in danger; 2) If officers have a reasonable suspicion that an occupant of the vehicle is engaged in criminal activity; or 3) If they decide to search the vehicle. Affirming the District Court’s ruling, the SJC held that the officers in the case did not have legal grounds to order the passenger out of the car, because they “could not have reasonably feared for their safety considering the stop occurred during daylight, the defendant made no furtive or threatening movements, and the defendant was not known to the officers from previous arrests.’’

The court then turned to the 2008 state ballot law passed by voters in 2008, which resoundingly decriminalized personal possession of one ounce or less of marijuana. With this landmark ruling, the justices answered a lingering question regarding police conduct since the ballot initiative became law. In very pointed language, Chief Justice Ireland wrote that voters, in passing the 2008 ballot question, clearly intended that possession of an ounce or less of marijuana “should not be considered a serious infraction worthy of criminal sanction.’’ The justices noted that “There are no facts in the record to support a reasonable suspicion that the defendant possessed more than one ounce of marijuana,’’ they ruled. “We conclude that, to order a passenger in a stopped vehicle to exit based merely on suspicion of an offense, that offense must be criminal.’’ Quite noticeably, the court went on to emphasize that “Ferreting out decriminalized conduct with the same fervor associated with the pursuit of serious criminal conduct is neither desired by the public, nor in accord with the plain language of the statute,’’ Roderick wrote. (Underline empasis added.)

I'll publish Part Two of this Post, by Wednesday April 27 2011.

The trial of Kristen LaBrie was brought to a close earlier this week, with an Essex County jury finding her guilty on each of the four counts that she was charged with: 1) Attempted murder; 2) Assault and battery on a disabled person with injury; 3) assault and battery on a child with substantial injury, and 4) Reckless endangerment of a child, for withholding medication from her son, Jeremy Fraser.

Essex County District Attorney Jonathan Blodgett’s office argued that Jeremy could have survived a treatable case of non-Hodgkin’s lymphoma that he had been diagnosed with in October 2006 when he was 7 years old, but that LaBrie failed to administer chemotherapy treatments. Prosecutors alleged that LaBrie intentionally withheld the medications because she did not wish to care for her son who suffered from autism; in effect, that she attempted to cause his death. By the time his doctors realized the boy was not taking his medication, his condition had advanced to leukemia, and became untreatable. He died at age 9. Prosecutors argued that LaBrie's failure to administer the prescribed chemotherapy medications was a substantial factor that contributed to the boy’s death, as it allowed the cancer to spread even though it had previously been sent into remission.

LaBrie’s defense had argued that she honestly believed that the medications her son was prescribed were making him more ill than the disease itself, and that she couldn’t bear to see him made so sick by those medications. Her lawyer argued that she suffered from mental exhaustion, and that she made what she believed were the best decisions that she could make, to care for her son. Prior to Jeremy's death, state child welfare officials removed the boy from his mother's care, and custody was awarded to the boy's father, now deceased. However, at that point the boy's cancer was no longer treatable. The prosecution introduced evidence that after her son's death, LaBrie acted in a manner inconsistent with a grieving mother; that in fact, she appeared happy and even celebratory.

As a Norfolk County Massachusetts defense attorney, I’m not surprised that this jury found LaBrie guilty on the Massachusetts attempted murder charge. Under Massachusetts case law, it’s inarguably clear that parents have a legal obligation to administer prescribed medications if doing so will reduce the risk of serious harm to the child. Recent cases on some parents’ religious objections to providing medical care to sick children have narrowed this area of law. The most notable of these cases emerged almost two decades ago when Massachusetts manslaughter charges were brought against parents who refused to authorize surgery for their young child, who died from bowel obstruction that could have been treated through surgery. The couple, David and Ginger Twitchell, then of Hyde Park, Massachusetts, argued that they were Christian Scientists and that they had the legal right as the child’s parents, to try to treat his medical condition through prayer. In a landmark decision, the Massachusetts Supreme Judicial Court, reviewing that case, ruled that parents have a legal duty to provide medical care for their seriously ill children, notwithstanding claims of religious faith.(Note: In the LaBrie case, the defendant was not charged with straight murder here, because what is known as the “proximate cause” of the boy’s death was ultimately the cancer that he suffered from.)

I also wasn’t especially surprised at the jury’s finding of Reckless Endangerment of a Child. However, I was fairly surprised at the guilty verdicts on two other counts: Massachusetts Assault and battery on a disabled person with injury; 3) assault and battery on a child with substantial injury. I think that these charges were a stretch on the part of the District Attorney, as failure to administer medication to a 7 year-old child is not likely to create apprehension in the child of an imminent, unwanted touching, and neither is it an actual “battery”. FoxTV-25 asked me earlier this week to review the case as a legal expert, and my broadcast appearance can be viewed by clicking on this FoxTV-25 link.

Notwithstanding, the jury’s guilty verdicts on these and all four counts reflected a considerable degree of anger toward this defendant. Some jurors have commented on how they simultaneously felt anger and sympathy for this mother, in trying to care for an autistic 7 year-old who was stricken with cancer, but it’s clear that it was their antipathy toward LaBrie that formed their verdicts. Indeed, The Boston Globe editorialized on the duality of these emotions in this case, but made clear its support for prison time. Click on the Globe link in the preceding paragraph to read that editorial. Its title tells the story: "Sympathy and a Stiff Sentence." (Note: The Globe had written that editorial the day before Superior Court judge Richard Welch's sentence was delivered, Friday, April 15 2011, but the editorial was published in that morning's edition.)

Yesterday, LaBrie, 38, was sentenced to eight to 10 years in prison, and was also ordered to serve five years on probation and to complete an anger management program, according to an Essex County District Attorney spokesman. Adding the maximum sentences for each count, LaBrie faced a potential maximum total of 37 ½ years in prison; a maximum of 20 years for the attempted murder charge, alone. Against this backdrop, eight to 10 years is a relatively light sentence. She will be eligible for parole after serving eight years. As obvious as the jurors’ intolerance of LaBrie’s conduct was, I think it’s equally clear that the judge in this case felt some countervailing sympathy for her.

All in all, I think the sentence is not especially unreasonable, especially when one considers the worst sentence of all that LaBrie will have to live with, for the rest of her life: That she was convicted of the attempted murder of her own son.

Courts – especially appellate courts – usually exist to apply the law, not advocate for specific changes in the law. Advocacy of that nature is typically the responsibility and territory of legislators, lobbyists and activists.

So it was with not a small amount of notice in the legal community in Massachusetts, that two Justices of the Supreme Judicial Court (SJC,) yesterday took the unusual step of advocating that the Massachusetts Legislature enact a change in a crime-fighting law that has existed since the late 1960’s. Enacted in 1968, this law is a wiretap law, which allows police and law enforcement investigators to use wiretaps only when the targets of the investigation are engaged in organized crime. In the case that was before the court for review, a man was recorded on tape admitting to a 2007 drive-by killing in Brockton. Prosecutors attempted to use the tape against the defendant at his Superior Court trial, but the tape recording was excluded from evidence by the trial judge, who ruled that the defendant’s activities did not fall under the definition of “being in connection with organized crime.” The Commonwealth appealed her ruling, and the SJC agreed to hear the case.

In a 7-0 ruling, The SJC stated that the language of the existing statute makes clear the specific type of criminals that police officials are allowed to surreptitiously tape record: Individuals in “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.’’ In the Tavares case, the court found that while this murder suspect (Tavares) and two other suspect under investigation by State Police were part of a “putative street gang,’’ Tavares did not qualify as being an “organized crime” figure. They concluded this because prosecutors did not introduce evidence that Tavares was part of what Massachusetts law describes as a “pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.’’

While a lot of people won’t like this, Justice Robert Cordy wrote that street gang members enjoy the same legal rights as any other person in Massachusetts, and absent police and prosecutors producing the type of evidence that the law requires, wiretap evidence is inadmissible in criminal trials where the defendants’ activities don’t meet the definition of being engaged in “organized crime.”

Criminal defense and appellate lawyers know how to read between the lines, and it was clear that among the 7 justices voting here, more than one was holding his nose as they voted on this case. They were upholding the law, but it was clear that it wasn’t a pleasant process (as many of these tough decisions aren’t pleasant.) But two of the Justices, Ralph D. Gants and Judith Cowin, took the unusual step of writing a separate but concurring opinion, in which they openly urged the Legislature to wake up and change this law, so that it can be applied to appropriately prosecute street gangs.

In writing a forcefully worded concurring opinion, Justices Gants and Cowin strongly suggested that the legislature should delete five words from state law, which would have the effect of applying the law to members of street gangs, thus rendering secretly recorded conversations of such gangs admissable in court. “The legislative inclusion of five words, ‘in connection with organized crime,’ means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation,’’ Gants wrote (emphasis added here.) He and Justice Cowin urged the legislature to correct this omission.

In the interests of fairness and honesty, police officials and prosecutors have a point to make here. The more serious Massachusetts drug crimes and violent crimes, are very often the product of street gang activity. As a Boston, Massachusetts criminal defense lawyer, I do not disagree with this approach, as long as any change in this statute is done in accordance with appropriate legislative procedure, and after requisite hearings before the appropriate legislative committees, including the Joint Judiciary Committee.

An arrest at Logan Airport earlier this week, alleging a Massachusetts drug offense, highlights an increasing problem in our nation’s increasingly ineffective “War on Drugs.”

The arrest and charges involve a drug mule. A “mule” is a drug courier, who more often than not is not suspected of being a drug dealer, or being a significant player in drug trafficking operations. Notwithstanding, the “mule” is the person who is charged with the crime of introducing the drug into Massachusetts. The mule in this case is one Karen Morla-Ramos, 22, a Dominican native who was arrested at Logan last Sunday, March 27 2011, after arriving on a JetBlue flight from Santo Domingo. State Police said they conducted a pat-down of Morla-Ramos after she acted suspiciously and found 1,040 grams of cocaine in a diaper-like garment she was carrying. It is often the case – though not always - that such “mules” have been forced, or at least pressured, by dealers in their home countries who are the kingpins and major players in the drug trade, to act as mules. Violence reigns in the drug trade. Very often, major drug dealers and traffickers in countries that are known to export illegal drugs, threaten or extort citizens of that country who are (quite literally) dirt poor and have no resources, to transport these drugs into the U.S., or face unthinkable results.

It’s not uncommon for a major drug trafficker to “loan” money to a poor family in a Third-World country, then come calling for repayment with huge interest suddenly attached to the loan. When the debtor can’t pay, they’re given a choice: Satisfy the debt by transporting drugs into the U.S. – where the major money is made – or face horrible consequences: The kidnapping or murder of their loved ones, or their own death. In circumstances less physically violent, but just as economically violent, poverty-wracked residents of Third-World countries such as the Dominican Republic, are offered what is billed by a major drug trafficker as “easy money”, to transport drugs aboard a flight to the U.S. While they know this is an illegal act, most of these “mules” are ignorant, uneducated, inexperienced, and uninformed about just how severe the risk is to them. Those realities don’t excuse the acts of these couriers, but it should, in fairness, provide some context.

The preferred smuggling method for most of these foreign drug cartels and kingpins is to have the courier swallow rubber packets of illegal drugs – usually cocaine or heroin – which (if the courier is lucky,) are later defecated, intact, after the courier's arrival in the U.S. To make the transport financially “effective” for the trafficker in the originating country, dozens of these rubber packets must be swallowed by the courier – one by one. If just one packet were to either burst or become otherwise perforated inside the person’s digestive tract, death would almost certainly ensue. To illustrate just how violent the illegal drug trade is, if the ingested packets became for some reason trapped in the courier’s digestive system, or the courier could not eliminate all of them from his body, dealers on the U.S. end, who meet the courier at the airport, house them and guard them until all packets are eliminated and accounted for - will kill the courier and cut out the drugs from the dead body.

The barbarity and savagery of this business are fueled by the enormous profit involved – profit created by one things: Prohibition, which creates the black market in the first place. I’ve written previously about how drug prohibition causes far more crime and resulting misery than responsible legalization, regulation and taxation would ever cause, but that’s another story – and a lengthy one. For very authoritative and concise presentations of that argument, visit www.leap.com; Law Enforcement Against Prohibition is an organization of former police and law enforcement professionals, lawyers and judges who are committed to the reality that making drugs illegal only costs society far, far more in terms of tragedy and economic loss than legalization, regulation and taxation ever would. Take a look at their site.

Back to today’s post: Increasingly, traffickers in exporting countries have chosen women to act as these mules. Like bombing terrorists, they apparently assume that a woman would not typically be suspected of being involved in such an illegal act. This was portrayed very clearly in a recent film called “Maria Full of Grace”, which told this kind of story quite well.

The irony is that it is often the courier or “mule”, who bears the legal brunt of all this activity - nowhere near as much as the major traffickers and cartel operators abroad. Though not always, very often it is the major players in the exporting countries that remain out of reach of Massachusetts law. And the legal penalties for these couriers are extremely severe. Massachusetts drug laws provide for mandatory minimum sentencing for many of these offenses. For example, for anyone convicted, (or agreeing to a plea that legally equates to a conviction,) of transporting cocaine in excess of 200 grams into Massachusetts, that person faces a mandatory minimum sentence of 15 years in state prison; M.G.L. Ch. 94C, Sec. 32E. Most cases involving mules from outside the U.S. trigger these mandatory sentencing provisions, simply due to the high amounts of the drug introduced into Massachusetts, in order maximize drug profits (penalties increase in relation to amounts of a drug seized.)

I’ve blogged previously about the unfairness of unproductiveness of mandatory minimum sentencing, which ties judges’ hands regardless of the underlying facts of a case. But what can often make matters worse, is the the real “bad guys” in this drama – the cartel operators and major traffickers – often remain untouched. But that doesn’t change existing Massachusetts drug laws, and as a Boston, Massachusetts drug offenses lawyer, I use over twenty years’ experience in providing my clients the best legal defense possible.

Not because all these clients are innocent, but because one of them might be.