Boston Criminal Attorney Blog

On February 6 2010, I posted a story about the arrest of a man on the Boston Common, after he had taken video of Boston police allegedly engaging in unnecessary use of force in arresting a man.

Simon Glick was walking along Tremont Street in Boston on October 1 2007, when he observed three uniformed Boston police officers using considerable force in arresting another man. Glick, now a practicing criminal defense attorney, was a law student at the time and suspected police brutality. His suspicions were reinforced upon hearing another observer shout “You are hurting him, stop!” at the officers. Glick video recorded the event with his cell phone. When the officers saw this they arrested him - for violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The "wiretapping statute" criminalizes the "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication, without the permission of all parties to the communication (emphasis added.)

Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or an otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legally permissible. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held. To almost no surprise among Massachusetts criminal defense lawyers, the criminal prosecution against Glick was later dismissed, particularly due to the fact that there was no "secret" recording of this event.

To his credit, Glick sued the Boston Police Department for violating his civil rights. The Boston Police argued that judgment should be entered in their favor, based upon the “doctrine of qualified immunity”, which essentially provides limited immunity to police officers in certain exigent, or emergency, situations. Last week, in Glick vs. Cunniffe, et. al., the U.S. Court of Appeals for the 1st Circuit ruled against the city. As a Boston Massachusetts police brutality lawyer, I could have told the city of Boston that it was wasting its time and money with this appeal. In fact, I predicted this legal outcome in my February 6 2010 post on this story. Quoting from the decision, the court’s three-judge panel wrote “We conclude that …Glick was exercising his clearly established First Amendment rights in filming the officers in a public space, that his … Fourth Amendment rights were violated by his arrest without probable cause. We (further) conclude that Glick’s recording was not ‘secret’ within the meaning of the Massachusetts wiretap statute, and therefore the officers lacked probable cause to arrest him.”

I don’t report on subjects like this to gratuitously criticize police departments or police officers. The vast majority of police officers that I know are decent, honest people, who mean to do the best job they can. But in almost any line of work, there are always those who abuse their positions of authority. And when that happens, the reputations of the majority of honorable police officers are lessened. That doesn’t do anyone any good – not the overall police department involved, not the wider police force affected, and certainly not the public they are paid to protect and serve. As a Dedham, Massachusetts criminal defense lawyer, I think a decision like this is actually good for police departments everywhere – because it reminds them of two things: 1) They are there to protect and serve the public – not abuse their legal rights and 2) Unethical police conduct will be punished by the courts. This is as it should be in any profession, across the board.

This will almost certainly result in the City of Boston having to pay out some serious money to Glick in damages. For the city, an unfortunate example of how this kind of conduct can bring serious financial consequences.

One of the things that make the practice of law interesting is that fine details always make the difference in given rulings.

Such was the case earlier this week when the Massachusetts Supreme Judicial Court (SJC,) ruled against state prosecutors’ attempts to civilly commit a man that has openly acknowledged that he is a serial flasher. Some quick legal background: Like many states, Massachusetts has a legal mechanism to keep people in jail who have been convicted of sex offenses, even after they’ve served their sentences, if it considers those people to be sexually dangerous. This mechanism is known as the Civil Commitment Statute, Massachusetts General Laws Chapter 123, Sec 1. 8. et. seq. In almost all cases, this statute allows prosecutors to bring a petition before a court when a convict is about to complete his or her sentence for a Massachusetts sex offense, and argue that the person should be civilly committed at the completion of his or her sentence, because that person remains a sexually dangerous person and poses a continuing threat of harm to others. Basically, when prosecutors file such a petition, they're saying "Yes, this person served his sentence, but he's still sexually dangerous, and shouldn't be allowed on the streets. He should be incarcerated." When a person is “civilly committed," he or she is ordered held against their will at Bridgewater State Hospital, which is essentially a state mental hospital. Convicts that have been judicially declared to be criminally insane, and sexually dangerous persons, are held there. It is essentially a hybrid between a hospital and a prison, complete with armed guards and barbed wire.

The minimum requirement that prosecutors must meet to civilly commit a person, is a showing that the person poses a threat of physical harm to himself or others – and that’s what makes this case interesting: It poses the question: Is a flasher someone who poses a threat of physical harm to others? As I said, an interesting question. A voyeur is someone who likes to watch others sexually. A flasher is someone who wants to be watched sexually. While both actions are almost certainly offensive, do they pose the threat of physical harm? In this ruling – which the court went to great length to isolate as applying to this case and this case only – the answer was no, and the state’s efforts to civilly commit the man were rejected. The defendant in this case, named Donald Suave, has been convicted of the Massachusetts sex crime of "open and gross lewdness" seven times, almost always flashing young adult women, sometimes even masturbating in the process. He openly acknowledged to psychiatrists that he has done this as many as 30 times since he was a very young teenager.

Obviously, this man has serious psychosexual problems. But the statute requires that this specific question be answered: Does he pose a threat of physical harm or violence to others? The court said no, but drew a very narrow line, emphasizing the importance of the words “contact sex crime” in the interpretation of the civil commitment statute. Clarifying that if the defendant had done this while stalking someone, or engaged in this behavior in front of child, their ruling would have been different, the court ruled that “The Commonwealth must show the defendant’s predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime. “A generalized fear or some other unspecified psychological harm such as shock or alarm will not suffice.’’ The court’s ruling was authored by Justice Francis X. Spina.

Court rulings like this can often be fractured, (some would say distinctive,) and this ruling is no exception. That’s so because while emphasizing that its ruling was restricted to this defendant and this particular case only, Spina also wrote that the ruling should not be interpreted to mean that sex offenders who have committed only noncontact crimes such as flashing do not pose a threat of harm to others. According to Spina, “Each case is specific. “We can easily envision a case where the outcome might be different, based on the specific behavior of a particular defendant.’’

Uh-huh… Now that that’s clear... Regardless of this somewhat mixed ruling, as a Boston, Massachusetts sex crimes lawyer, I think it’s clear that this ruling will not protect offenders who have physically harmed, or posed the threat of harm to, others – and that’s obviously a good thing. But it’s also my opinion that this ruling will make it harder for prosecutors to civilly commit some sex offenders – those who aren’t very likely to commit bodily harm against another. And that, too, is a good thing. The state’s power to imprison someone is second only to its power to execute someone. Obviously, the bar for both of these should always be high.

As I write this post tonight, I’m thinking about shame and loss.

I’m writing about former Massachusetts House Speaker Sal DiMasi’s sentencing today in federal court in Boston. About four days ago earlier this week, I communicated with several Boston media reporters, opining my professional opinion, as a Boston Massachusetts criminal defense attorney, of how many years that DiMasi would be sentenced to. My prediction as of September 5? Eight years. The sentence handed down today by U.S. Judge Mark Wolf? Eight years.

While I felt all along that my instincts were accurate, I was saddened that I had to make them at all. I was saddened that DiMasi brought himself to this position. It was a shame that someone who has by many, many accounts done a great deal of good over thirty years of public service, would come to this kind of an end. It was a shame that a member of the bar, an esteemed criminal defense attorney, had been brought to such disgrace. And it was a shame that the public’s trust in elected officials has been brought ever lower. As to loss, the legislature lost a talented member and leader; Mr. DiMasi has lost his name, his freedom for several years, and his lifetime state pension of approximately $60,000 per year. He is financially broke, in debt, and (to quote his own words at his sentencing hearing,) “virtually unemployable.” And perhaps worst of all, his family, especially his wife Debbie who is battling breast cancer, has lost him, for a long time.

It’s easy to play Monday Morning Quarterback, isn’t it? I don’t wish to engage in that too much, but I will say this: Long before this verdict and sentencing, (last June, in fact,) I publicly wrote that DiMasi should seriously consider any reasonable plea deal that might be offered. While I want to stress that I don’t know if one was offered, it’s not at all uncommon for such plea negotiations to take place, and if that was explored and DiMasi refused a reasonable offer that was less than the eight years he has been sentenced to, then someone made a big mistake here – maybe DiMasi himself. Perhaps DiMasi’s legal defense team did obtain a plea deal with federal prosecutors and advised DiMasi to take it, yet he refused. Perhaps his attorneys told him to not even consider a plea bargain, no matter what the details. I don’t know. And it’s important to say that the client is the person who makes the final call on any such decisions – not the client's attorney. But if a reasonable plea deal amounting to less than an eight year sentence was offered and it was refused, then DiMasi’s poor judgment didn’t end in the State House; he carried it over to the Court House.

I’m a Boston criminal defense lawyer – and I’m aggressive; I don’t “roll over” easily. But before the trial began, it was clear that the evidence amassed in this case against DiMasi was enormous – and that fact that the government’s key witness was shown leniency for his cooperation was not going to destroy his credibility in the eyes of the jury. It just wasn’t. Eventually, the prosecution brought in a virtual parade of witnesses severely damaging to DiMasi – from Governor Deval Patrick to a cabinet secretary, to many others. From a defense attorney’s perspective, it was painful to watch. I wish none of this had happened, but it did.

Once he was convicted at a jury trial, in my view, the entire game was over. Yes, his attorneys vowed – as they should have – an appeal, but the facts behind his conviction and the case law that would be cited in any appeal just don’t support an optimistic outcome. At that point, looking ahead to sentencing several weeks away, damage control needed to come into play. And it didn’t. The only thing that was played up, was DiMasi’s nonsensical, and by many observers accounts, arrogant denial. Without doubt that factored into the judge’s sentencing decision here: U.S. District Court Chief Judge Mark Wolf made several pointed observations about DiMasi’s apparent lack of genuine contrition, noting, “It seems to be an attitude that if somebody supports causes that you care about, some corruption is to be expected, and I think that’s a pernicious paradigm.” “This case has been very dispiriting. It demonstrates recurrence of corruption in state government … it will undoubtedly heighten cynicism of public officials in the short-run,”; and : “One of the things I think about in connection with this case, which person is more dangerous in our country? Somebody who is doing what everybody he knows does, selling crack on the corner for maybe 75 or 50 bucks, or people who are undermining our democracy by … conspiring to sell public office?” DiMasi’s strutting and smiling for the cameras last June at his trial, and far worse, his nonsensical comments to the press after his conviction, made things far, far worse for him when it came to sentencing.

This was the harshest sentence ever handed down in a Massachusetts public corruption case involving an elected official. In principle, I don’t object to someone who has been found guilty of a crime being reasonably punished for that crime. The question is always, what is “reasonable”?; what is “just”?

That’s a tough question, but one thing is certain: DiMasi suffered from bad timing: The judicial mood has drastically shifted when it comes to public corruption. After two former Massachusetts House Speakers, Charles Flaherty and Thomas Finneran, were convicted of corruption charges but escaped any prison sentences, public and media outrage grew. (In fact, Finneran is a well-paid talk show host and lobbyist now.) In just the past year, two black politicians, former Massachusetts state senator Dianne Wilkerson and Boston city councilor Chuck Turner were convicted of corruption charges in the same court last year. Each of them was convicted of taking far less money in payoffs than DiMasi, and they received given modest prison terms of approximately three to three and a half years. Given this attitudinal and political backdrop, there was no way DiMasi was going to receive less than the eight years I predicted.

But I think it’s fair to say that had these prior four cases never happened, Sal DiMasi would not be facing the prison term that he is tonight. Is that fair?