Boston Criminal Attorney Blog

A 31 year-old Hingham Massachusetts woman was arrested by Braintree police last Tuesday and charged with possession of heroin and conspiracy to distribute a controlled substance. In addition to the woman, two men who allegedly sold the woman the heroin were also were arrested and charged with possession and conspiracy to distribute. Braintree police had received a tip about the alleged transaction, and had staked out the street, Logan Drive, where they reported observing the alleged Massachusetts drug offense.

Allegedly, the woman exited her car, conversed briefly with the two men, then got back in her own vehicle. Afterward, the two cars drove away in separate directions. Police intercepted both vehicles, and questioned the suspects. Two bags of what reportedly appeared to be heroin were allegedly discovered on the woman’s person, inside a cigarette pack. After being questioned by police, the woman reportedly stated that the two men who she spoke with on Logan Drive, had provided her the heroin. Noel Vazquez, 29, of Jamaica Plain and Orlando F. Negron, 31, of Dorchester were arrested and charged with distribution of heroin and conspiracy to violate the Massachusetts Controlled Substances Act. Additionally, Negron, who drove the vehicle, was also charged with operating with a suspended driver’s license, possession of a Massachusetts and Pennsylvania driver’s license with a false name. Aside from the more serious drug offenses involved hee, these Massachusetts motor vehicle violations also carry serious penalties. Negron was also charged with providing a false name to a police officer following arrest, and he has an outstanding warrant for drug and traffic offenses in Weymouth. $1,127 in cash was seized from the two men. The Hingham woman’s name was not yet available at the time of this writing.

I can assure my readers that Massachusetts drug offenses, from the petty and minor to the most serious, are charged in the courts throughout Massachusetts, every day. As a Dedham, Massachusetts drug offenses lawyer, I see it all the time. But what makes arrests like this stand out a little more is the fact that the defendant who is accused of buying the heroin, is from a very upscale, wealthy community. Most of the time when people hear of serious drug offenses involving substances such as heroin, they think of inner-city urban crime, often found in the gritty streets of crime-infested communities. I could name you such communities in Massachusetts, but I won’t. What I can tell you, though, is that the problem of serious drug use on the scale of heroin and cocaine, does indeed occur in wealthy suburbs, too – and reports like this illustrate that unfortunate point.

A few years ago, the Massachusetts Legislature passed a law prohibiting defendants convicted of certain Massachusetts sex offenses from being placed as residents in nursing homes. Ostensibly, the law applied only to Level 3 sex offenders, which are considered the most likely to reoffend, according to the Massachusetts Sex Offender Registry Board (“SORB.”) The goal, obviously, was to protect a vulnerable population from convicted sex offenders.

On its face, it sounds like good public policy. But, as is usually the case, something happened on the way to an otherwise good idea. In this case, that something was a Superior Court judge's ruling that a man (known only as “John Doe” in court pleadings,) who had been previously convicted of a sex offense and classified by SORB as a Level 3 offender, was no longer a sexually dangerous person. Subsequent to that ruling, “Doe” needed to be admitted to a nursing home. After Boston Police learned that this man had been placed into a certain nursing home, they told him he had to leave the facility, which he did. “Doe’s” lawyer later claimed in court that the law was unconstitutional because it was overreaching, and because it provided no opportunity for Doe to prove that he was no longer a risk to other residents and staff in the facility.

In a unanimous (7-0) ruling, the Supreme Judicial Court (SJC) agreed, holding that the law prohibiting Level 3 sex offenders from placement in Massachusetts nursing homes violates the state’s Declaration of Rights, in that it turns a person’s right to choose where to live, into in effect a crime. The opinion was written by Associate Justice Fernande R.V. Duffly, one of the newest additions to the court under Gov. Deval Patrick. She wrote, “Those who have been released from incarceration … are free to live where they choose and to move freely within and without the Commonwealth.“ A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our state constitution.’’

Some would say this is a bad ruling (generally, conservatives); some would say it is a good one (generally, liberals.) Regardless of the view, one thing I can guarantee you, as a Dedham/Boston Massachusetts sex offense lawyer, is that it’s going to create a lot of confusion surrounding this law, and over the subject of Massachusetts nursing home abuse. Why? Because already, all the principal legal parties are claiming that the ruling says different things:

1) Doe’s individual attorney, trying to quell concern on the part of nursing home owners and relatives of nursing home residents, claims that the ruling applies only to Doe, and no one else.

2) In contrast, an attorney for the Committee for Public Counsel Services (CPCS,) the state agency which provides legal counsel to indigent defendants, claims the opposite: That the ruling will apply to an entire class of previously-convicted sex offenders who are similarly situated to Doe.

3) Attorney General Martha Coakley, whose office unsuccessfully represented the state in arguing that the sex offender ban was lawful, tried to blunt the impact of the ruling, saying in a released statement, “We believe the current law banning Level 3 sex offenders from nursing homes can remain an important tool for protecting the homes’ residents, visiting children and other members of the public.’’ Her office has stated that because the court said it was applying its rationale to John Doe’s case only, the state may continue to “legitimately prevent offenders who are shown to present a risk of harm to their elderly neighbors from living with this vulnerable population.’’ In my view as a Dedham Massachusetts nursing home abuse lawyer, I’m not so sure about that.

4) Nursing home owners and operators don’t know what to make of the decision. They don’t yet know if they should refuse admission of any previously-convicted Level 3 sex offender, or allow them in. While many nursing home directors say existing regulations provide them wide latitude in their admissions decisions, due to their responsibility for the safety of their vulnerable residents, I can guarantee you that the attorneys advising nursing home operators also don’t yet know exactly what to advise their clients. Worse, it isn’t just the residents of nursing homes who could be vulnerable to an active sex offender: Many such facilities employ high school volunteers, who could easily be at risk from a sex offender who was previously convicted or preying on children or teens.

5) The Massachusetts Department of Public Health, which regulates nursing homes, don’t themselves yet know what the decision really means in practice. A spokesperson for the agency has said the agency’s attorney was still reviewing the court’s decision to determine how it might impact existing regulations.

If that isn’t enough, what makes matters even more confusing, is that the SJC previously held that it was constitutionally permissible for Level 3 sex offenders to lose protections other Massachusetts residents enjoy, such as privacy rights, after being classified as a Level 3 offender. Now it issues this decision, importantly, without clarification. It needs to clarify its ruling, and soon.

A lot of people ask me why it’s so crucially important that all criminal defendants be presumed innocent until proven guilty, especially when the evidence against the defendant at the time of the arrest and trial and trial seems so convincing. Usually, I answer that question with “What if you were the person accused? Would you think it right that you be presumed guilty?”

While this kind of hypothetical question usually silences the skeptic, it is real-life stories of people wrongfully convicted of crimes that they did not commit, which always brings home the point best. Exhibit “A” on this subject today is Anthony Powell, a man who spent 12 years of his life in prison for a Massachusetts rape that he did not commit. Powell was arrested in 1991 and charged with raping an 18 year-old woman in the Roxbury section of Boston. Based largely on the testimony of the victim, who identified Powell in court as her assailant, Powell was convicted and sentenced to twenty years in state prison. After serving 12 years for a crime he did not commit, Powell was released in 2004 after DNA evidence established that he could not have been the rapist. During those 12 years in prison, Powell never wavered in his claims that he was innocent, though who’s going to believe a convicted rapist, right?

Well, ironically enough, it was the prosecutor’s office that convicted Powell, the Suffolk County District Attorney’s Office, who eventually listened. In the 2-3 months after the March 1991 rape that Powell had been arrested and convicted on, two additional rapes and sexual assaults had occurred in nearby neighborhoods in Boston, but the assailant in those cases was never found. Years later, a man by the name of Jerry Dixon was convicted of several Massachusetts motor vehicle offenses, and was sentenced to nine months in jail for those offenses. Prior to Dixon’s release, corrections officials learned that he was required to retroactively submit a DNA sample stemming from of an unrelated armed robbery offense which also occurred in 1991. (Interestingly, the current Suffolk County District Attorney, Daniel F. Conley, prosecuted that case against Dixon in 1991, when Conley was still an Assistant District Attorney.) Dixon’s DNA sample was entered into the FBI’s Combined DNA Index System, or CODIS, and his DNA profile matched the DNA profiles that had been stored from the two 1991 unsolved rape cases that had followed the rape that Powell was convicted for.

Powell was released in 2004, and thereafter filed a federal civil rights suit against the state for damages stemming from his wrongful conviction. That civil case against the state was settled, and its terms remain confidential. As I said, ironically enough, one of the players in this drama who came out looking the “best” (using that term loosely,) was Suffolk County District Attorney Daniel F. Conley, whose office agreed to review Powell’s case in light of newly-discovered DNA evidence. Although Conley was not the elected Suffolk County District Attorney when Powell was prosecuted in 1991, Conley publicly apologized to Powell last week, on behalf of a system that Conley said had failed Powell. “Nothing can return those years to him,’’ said Conley. “No amount of compensation that he may have received is going to make this right.’’ I like Conley. As a Boston & Dedham Massachusetts criminal defense lawyer, I think he demonstrates a high degree of professional ethics and personal responsibility as a prosecutor.

Even more ironically, Powell’s strongest emotions are still felt toward the judge who presided over his trial, Robert Mulligan. Mulligan is now the Chief Judge for Administration and Management for the Massachusetts Trial Court Department. Powell reportedly feels that judge Mulligan was completely hostile towards him and his defense lawyer during the 1992 trial. I do not know if that claim is true, as I did not witness and was not privy to that case. However, Powell’s feelings toward the judge add even more irony to this case, because it is the judge in any trial who is supposed to remain perfectly neutral, not the prosecutor, and Powell’s most negative feelings remain towards the judge in his case, not his own prosecutor.

DAN evidence has proven time and again that many criminal defendants who professed their innocence were telling the truth. Care to know how it was that Anthony Powell was arrested in March 1991? He was simply in the wrong place at the wrong time, and looked somewhat like the real rapist, Jerry Dixon. After raping the victim, Dixon told the victim to come to a nearby skating rink the next night with $100 in cash (why Dixon would think she would do this, I don’t know.) The victim alerted Boston Police who staked out the rink the next night. At the appointed time, Anthony Powell just happened to be walking in the area, and the victim identified him as her assailant. She said she was 100% sure, and the police and prosecutorial ball just kept rolling after that. Imagine that: A completely innocent man, out for a walk – and the next thing he knows, he’s arrested, charged, and convicted of raping someone he never even met. He is sentenced to twenty years in state prison. Kind of make one think of “The Shawshank Redemption”, doesn’t it? Except this wasn’t a movie; it was all too real.

Last week, Anthony Powell stood in a Boston courtroom and watched while the real rapist, Jerry Dixon, admitted to the rape that Powell was convicted of, as well as other Massachusetts rape and sexual assault offenses. So the next time someone’s speaking on the subject of crime and punishment, and yells out “Lock ‘em up and throw away the key,” remind him or her that it could be he or she who is behind that locked door someday.