It seems that one Simon Glick, 33, was walking along Tremont Street next to the Boston Common on October 1 2007, when he observed three (yes, three) uniformed Boston police officers arresting another man, and using considerable force. Glick, a law student at the time and now (perhaps no surprise,) a criminal defense attorney, heard another man shouting “You are hurting him, stop!” at the officers. Thinking that he was witnessing three police officers brutalize the man who was being arrested, Glick used his cell phone to video record the event. When these officers saw Glick recording them on video, they arrested him. For what? 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. The staute provides that persons violating the law may be punished by a fine of up to $10,000, or imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. In this area of law, Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legal. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held.

Not surprisingly, the case was later dismissed, particularly due to the fact that there was no "secret" recording of this event. Notwithstanding, it seems obvious (at least to me, as a Boston criminal defense lawyer,) what these officers were trying to cover up: The fact that they were using excessive force in arresting the first man, which Glick (and at least one other observer – the man who yelled out “Stop, you are hurting him!”) had witnessed. As a Massachusetts criminal defense attorney who has defended cases from assault and battery to drug offenses and sexual offenses, I can only imagine the reaction of the Assistant DA in the Suffolk County District Attorney's office who ended up being the recipient of this case (“These cops expect me to prosecute for this? It’ll be thrown out in a second.”) As I said, this statute was intended exclusively to prevent hidden, covert audio recordings of phone conversations or otherwise private meetings – not video recording of public events. Without doubt, these officers saw themselves getting caught in the act of police brutality, and then made things even worse by arresting Glick on this essentially baselss charge.

But the story isn’t over. Now, the American Civil Liberties Union of Massachusetts has filed a civil rights lawsuit against the city of Boston and these three officers for violating Glick’s First Amendment rights to free speech and his Fourth Amendment right to be free from arrest without probable cause. I thoroughly agree with both of these allegations. From all apparent indications, this case is a flagrant example of abusive police conduct, not only against the first man being arrested, but against Glick, also. Howard Friedman, an attorney working with the ACLU to represent Glick, commented, “Just because these police officers were unhappy about being recorded, doesn’t allow them to make an arrest. If a person is standing, as Mr. Glick was, many feet away and simply recording, that’s not a crime.”

A spokesman for the Boston Police Department declined to comment. Mayor Thomas M. Menino’s office also had no comment. No surprises there. I said I could easily imagine the reaction of the Assistant district Attorney who had the unfortunate luck to be handed this case, and I can also easily imagine the reaction of the corporation counsel for the city of Boston, upon hearing of this case: “We’d better settle this one.” In the interests of fair reporting and equal time, let’s take a look at the police union’s response. Thomas J. Nee, president of the Boston Police Patrolmen’s Association, said: “There is no problem with photographing or videotaping, but when it comes to conversations, police officers need a warrant or permission, and, as police officers, we are entitled to the same rights as every citizen of the Commonwealth to be free from surreptitious recording of our voices. It’s a protected activity.’’

Sorry, Mr. Nee – no, openly (vs, secretly) video taping public events isn’t “protected activity”. You need to speak with your lawyer, again. This statute applies only to voices recorded without the consent of the other party, over a phone or otherwise during a private meeting. It does not apply to public places or public events, and the legislative intent behind this law is clear. While there have been cases producing some convictions in tis area of law, they don't quite match the fact pattern in this case - particularly the non-secret nature of the video recording involved here.

It’s unfortunate when something like this happens, because it undermines public confidence in the good work that most police officers do. Even though, as a Norfolk County criminal defense attorney, I work from the opposite side of the aisle with police and prosecutors, I know that the vast majority of police officers are hard-working, ethical people. Bad apples, such as appears to be the case with these officers in this case, give good police a bad name.

Famous television legal journalist Nancy Grace is known far and wide for her aggressive, take-no-prisoners on-air persona. Her interview style is very probative, and she doesn’t let evasive interview subjects off the hook easily. Ms. Grace is a former prosecutor, and it forms her approach to the subjects she covers on her HLN cable network show, “Nancy Grace“ – HLN’s most popular show. (The show, of course, covers criminal law almost exclusively.) Ms. Grace has an interesting background. Professionally, she was a career prosecutor for almost a decade in the Atlanta-Fulton County, Georgia District Attorney's office. She prosecuted primarily felony cases involving serial murder, serial rape, serial child molestation and arson. In sum, the most gruesome of cases. Personally, Ms. Grace was the victim of violent crime herself, when her fiancé was murdered many years ago. She has stated publicly that this tragedy will never leave her – understandably so.

The sum of this personal tragedy and professional experience is that Ms. Grace takes a decidedly pro-victim philosophy on her show. Because of this, a lot of defense attorneys across the United States doesn’t care for her, thinking her biased towards victims before the fact, in any case she examines. One prominent criminal defense attorney has publicly said of her, “Nancy has never met a victim she didn't love and never met a suspect she didn't want to tar and feather."

Hmm. As a Boston criminal defense attorney myself, I think this characterization is unfair to Ms. Grace. Further, I’d point out that the very defense attorneys who serve as her detractors, accusing her of constant bias towards victims, aren’t willing to point out that they, too, are biased – in favor of defendants. That’s understandable – I can be that way myself at times. It’s natural for opposing attorneys to be this way – but under the aegis of full disclosure, Nancy’s detractors ought to admit this before criticizing her.

Which brings us to today’s subject: Almost four years ago, a 2 year-old boy by the name of Trenton Duckett went missing in Leesburg, Florida. The boy was not found after his disappearance, and has never been. The boy’s mother, Melinda Duckett, was a 21 year-old woman, and had been questioned by police about the boy’s disappearance. On September 7 2006, Ms. Duckett appeared by telephone interview on Ms. Grace’s show, to discuss the case. As the interview began, Ms. Grace seemed sympathetic to Ms. Duckett, but as the interview progressed, Ms. Duckett declined to answer some of Ms. Grace’s quite reasonable questions about her own whereabouts the day of her son’s disappearance. During Grace's interview, the host increased the scope of her questions regarding Ms. Duckett's activities and whereabouts the day her son went missing, and Ms. Duckett became evasive, refusing to answer. At one point, Ms. Grace demanded of Ms. Duckett, "Where were you? Why aren't you telling us where you were that day?" Ms. Duckett answered (rather blithely,) “Because I don’t want to.” When, understandably incredulous, Ms. Grace pressed, “Why?”, Ms. Duckett remained silent.

The next day, just hours before the interview with Ms. Grace was set to air, Ms. Duckett shot herself in the head, killing herself. The broader media picked up the story, it grew, and about a week later, Good Morning America (GMA) interviewed Ms. Grace, who insisted that “If anything, I would suggest that guilt made her commit suicide" "To suggest that a 15- or 20-minute interview can cause someone to commit suicide is focusing on the wrong thing." Melinda Duckett's parents, Bethann and William Eubank, along with her aunt Kathleen Calvert, filed a wrongful death lawsuit against Grace two months after Melinda's Sept. 7, 2006, appearance on Ms. Grace’s show. The plaintiffs allege that Ms. Grace’s questioning caused Ms. Duckett to commit suicide, and they want damages.

Legally speaking, the plaintiffs here are alleging that Ms. Grace, by her questioning and treatment of Duckett, caused “intentional infliction of emotional distress” on Ms. Duckett, which caused her suicide. What they don’t mention as prominently in their press releases, is that Ms. Duckett had attempted suicide before, and that she never did account for her whereabouts the day her son went missing. As is normal for a civil case like this, it dragged on for quite some time, and depositions were scheduled. Recently, a videotaped deposition of Ms. Grace was scheduled by the plaintiffs, and Ms. Grace’s lawyers filed a motion to forbid the deposition from being videotaped. Predictably, the plaintiffs’ attorneys objected, and earlier this week the court granted the plaintiffs’ motion, ruling that Ms. Grace’s deposition would be video-recorded. From a public relations perspective, I can understand why Grace’s lawyers would want to quash videotaping her deposition. Nancy is a public figure, and if a video of something like that hit the internet, it could cause enormous imbalance in the case. But as videotaping of dispositions is highly common I think this was a fair ruling.

What I want to comment more on, are the accusations that Ms.Grace did anything wrong in her interview of Melinda Duckett. I’ve watched this interview, several times. I see nothing inappropriate, abusive, or improper in Ms. Grace’s questioning of Ms. Duckett. I think the allegations of intentional infliction of emotional distress are baseless – and I say this as a Massachusetts wrongful death lawyer, as well as a Boston criminal defense lawyer. Whether this interview subject had never committed or not, I see nothing in Ms. Grace’s conduct or demeanor that meets the legal definition of “intentional infliction of emotional distress.” More so, it is more than relevant to note that Ms. Duckett, in refusing to answer logical, reasonable questions posed by Ms. Grace during this interview, not only refused to answer the questions, but also refused to even state why she wouldn’t answer them. While not dispositive of guilt in itself, it’s inferential in the least.

It’s been pointed out by some of Ms. Grace’s detractors that liability might hinge here, in the pretext that was offered to Ms. Duckett, for appearing on the show in the first place. In other words, such persons have suggested that if a booking editor at HLN had induced Ms. Duckett to appear on the show with false assurances that Ms. Grace only wanted to help her find her baby, that Ms. Grace was entirely sympathetic toward her, and falsely represented that Ms. Grace would, in essence, ‘treat her with kid gloves’ only to aggressively interrogate her once on-air, that liability may result from such deception. This is a highly speculative and risky theory. Any intelligent adult appearing as an interview subject on a criminal affairs television show, would have to reasonably be on notice that any variety of questions could be asked.

As a criminal defense attorney who earns his living on the opposite side of the legal aisle that Ms. Grace occupies, I find her an admirable attorney, and an admirable person. While I agree that her deposition should have been subject to video recording as is routine civil practice in many such cases, I think her detractors should cut her a break. She speaks her mind and she does it in an ethical, professional manner.

And there shouldn't be any liability that results from that.

Shanley, one of the more well-known of several catholic priests that surfaced as part of the catholic clergy sex abuse scandal that erupted in 2002 in Boston, was convicted in February of 2005 on two counts of rape of a child under the age of14, and of indecent assault and battery of a child under 14 (those charges are subsidiary to the rape charges.) Shanley appealed his conviction all the way to the SJC, advancing primarily one legal argument: That the Superior Court judge who allowed expert testimony on the subject of “repressed memory syndrome,” did so erroneously, and thus that his conviction should be voided. For those of my readers that may not immediately recall, “repressed memory syndrome,” (clinically referred to as “dissociative amnesia,”) is a legal theory that developed in largely the past ten years. In sum, it argues that a person who suffers a psychological trauma, may unconscionably repress, or “forget” the memory of that incident, until a ‘triggering event’ stimulates a recovery of the memories.

This prosecutorial theory is important, because it allows prosecutors to ‘get around’ statute of limitations problems, which would otherwise prohibit the state from prosecuting certain crimes. You see, if an alleged victim to a crime does not come forward to make a complaint to police authorities and therefore allow the Commonwealth to file charges against the defendant, within the time period required by that statute, then the prosecution is statutorily barred. In this case, Shanley’s alleged victim came forward in 2002, when the clergy sex abuse scandal broke wide open in the media. The victim claimed that only then – in 2002 – did he suddenly remember being allegedly raped by Shanley when he was an altar boy several years earlier – because, he claimed, the memory of the alleged rapes was triggered by exposure to media coverage of Shanley’s arrest on charges of raping and abusing other boys. The timing of an alleged victim’s complaint to authorities in both this case, and all similar cases, is critical: If the alleged victim waits too long (i.e., beyond the statute of limitations period) to come forward to authorities and formally commence prosecution of a defendant, that person forever loses the ability to have that person prosecuted. That rule of law was developed for very good (and specific) reasons. It prevents people from being forever exposed to prosecution for a serious crime, if an alleged victim does not choose to come forward to authorities within a lengthy – quite lengthy- period of time.

However, under Massachusetts law, the “tolling period” – the date when the statute begins to run – is the date that the alleged victim first became aware of the alleged crime – not the date that the alleged crime was committed. When these types of statutes were first written - not that long ago – they revolved around logic: If someone were a victim of a serious crime, and chose for many years to never file charges against the alleged defendant – then it was legislatively “presumed” that something must “be missing” in the victim’s evidence or the victim’s story – and that in the interests of justice, the door to prosecution against the defendant should at some point in the future be closed. In my view as a Boston Massachusetts sex offense lawyer, that’s a fairly balanced approach. But science, together with sometimes questionable psychological theories, it seems, never ceases its advance.

“Repressed memory syndrome,” which was developed by prosecutors and psychiatrists, argues that if an alleged victim unconsciously repressed his or her memory of the alleged crime for ‘X’ number of years after the alleged crime, and under normal circumstances the defendant could not be prosecuted for that crime because the statue of limitations had run, the prosecution should still be allowed if the time between the alleged victim’s recovered memory and the time of his complaint, is not greater that the time recited by the statue of limitations. Here, the victim testified at Shanley’s 2005 trial that more than 20 years had passed before he remembered what had happened to him. Normally, this would have barred his complaint from being prosecuted, as this period exceeds the statute of limitations for this crime. But, he testified that his memory came back in 2002 after being exposed to widespread media coverage about Shanley and the church sex abuse scandal. And it was the admission of that testimony – and particularly the trial judge’s admission of psychological expert testimony on the theory of dissociative amnesia - which allowed the jury to convict Shanley.

I’ll discuss the precise legal objections advanced by Shanley’s appeal, and the SJC’s reasoning, in my next post.

Three days after receiving that sentence, Galluccio tested positive (on three separate tests) for alcohol. He was then arrested for a Massachusetts probation violation. As part of his defense, he initially claimed that his toothpaste caused a false alcohol reading (he later abandoned that defense). At his court appearance earlier this week, Galluccio showed up in court with two defense lawyers, several public relations representatives, and expert witnesses testifying on his behalf that the “Sobrietor” accuracy might be questionable.

The result? Handcuffs and a trip to a Billerica jail cell for the next 12 months. This very public story illustrates just how serious probation agreements are. Especially when it comes to Massachusetts OUI charges and alcohol abuse. Some defendants think that they can ignore probation agreements – but they’re serious business. The judge in this case, Matthew J. Nestor of Cambridge District Court, had (generally speaking,) three options in front of him, after hearing Galluccio’s defense at this probation revocation hearing: 1) Terminate probation, 2) Re-probate him with more serious conditions – including mandatory alcohol treatment at an inpatient detox center – or 3) Impose a one-year jail sentence. Galluccio and his lawyers probably thought he’d get one of the first two sentences. But as a Dedham Massachusetts OUI defense lawyer, I can assure you: With multiple offenders, luck always runs out.

The buzz in the Massachusetts media right now, is whether Galluccio’s sentence for this probation violation was too harsh. Some observers, including some criminal defense lawyers, are saying that a defendant who wasn’t a public figure would have received a lesser sentence. As a Boston criminal defense lawyer, I’ve seen these cases go either way. Perhaps it’s true that because Galluccio is a high-profile figure, the judge thought that a very powerful message could be sent about alcohol abuse and probation violations with this sentence. Regardless, this case makes clear: Massachusetts DUI/OUI charges are dealt with very seriously, and any probation violations involving alcohol won’t be tolerated lightly.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.

In my experience as a Massachusetts OUI defense lawyer, most of my clients who receive probation sentences, understand and appreciate the importance of adhering to any terms of probation they might receive. Any client that I’ve advised to accept a probation sentence (which is not always advisable, as many of my clients are in fact not guilty of OUI,) “gets it” – they know how important it is to obey any terms they are given. But occasionally, I’ve seen other people who take a “Yeah, yeah – sure, sure,” attitude when agreeing to probation – never intending to adhere to the terms. It’s these people that I have no patience for: The ones that couldn’t care less what consequences their conduct may bring. For these people, they either simply don’t care, or they can’t control themselves. When I see such a person, and I’m asked to represent them after they’ve committed multiple offenses involving public safety, I’ll take a close look at their history. If I become convinced that this person has undeniable addiction or behavioral problems beyond their control, I won’t represent them.

I began this post by saying that I fight tooth and nail to defend my clients zealously and aggressively – but I also have to be able to sleep at night with a clear conscience. If I’m morally convinced that if I secure an acquittal for a potential client, that person will go out and commit the same offense, only to perhaps kill or seriously harm someone else, I’ll decline the case. That’s a tough call for a criminal defense lawyer – it’s not easy. And I know several of my colleagues who would disagree with me. But when I think of my wife or a loved one being the next potential victim, it’s a choice I’m brave enough to make. I'd rather see them get effective treatment, than an effective pass to go out an reoffend all over again. This point also illustrates the need for our criminal courts to be more focused on treatment than simply incarceration.

Oh, and by the way - Happy New Year to all my readers. Let's hope that 2010 is a better year, in many ways, economic, social and otherwise, than was 2009.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,’’ and that, “I made a firm decision that there will be no alcohol in my life.’’ As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

Aside from the usual random urine tests for alcohol, his probation agreement required him to use a handheld electronic device called a “Sobrietor”, which allows probation officials to monitor his blood alcohol content while he is at home, through the use of that device. (The device is essentially a breathalyzer similar to the ones used roadside by police, except that it transmits and measures the breath sample over a modem installed in the person’s home.) Also as part of that judgment, Galluccio lost his driver’s license for five years, was ordered to pay a $1,000 fine, ordered to undergo alcohol treatment, and attend a half-day workshop by the Brain Injury Association. The one exception to his home confinement sentence, was that he was allowed to leave home to attend church on Sundays, and to travel to Boston to cast a vote in the state Senate, when needed. The terms of his probation stipulated clearly that if Galluccio violated any term of his probation, he could be sentenced to up to a year in a county jail.

Given that the October incident he was charged with was Galluccio’s fourth incident allegedly involving alcohol, as a Dedham Massachusetts OUI attorney, I can attest that this disposition was extremely lenient. Prosecutors had called for Galluccio to serve jail time. He escaped that. One would think that this sentence would do the trick, but not so. Just days after this rather lenient sentence, Galluccio failed several breathalyzer tests administered through the Sobrietor at his home. That’s bad enough, but what follows is worse: Galluccio has claimed that his toothpaste caused the breathalyzer to record alcohol. Yes, that’s correct. “My toothpaste did it.” Galluccio issued a statement claiming that the breathalyzer recorded low-level alcohol readings as a result of his toothpaste, to wit: Colgate Total Whitening and Sensodyne Toothpaste. He said he arrived at that determination after consulting (read “desperately seeking”) a doctor (read” “any doctor”), who pointed out that these toothpastes both contain sorbitol, a sugar alcohol that has been reported to trigger positive breathalyzer results.

Full disclosure: This argument is not without legal precedent. It’s never been successful, but it has been tried. In 2006, a firefighter in Arkansas fought his punishment for testing positive on a breathalyzer by producing a chemist to testify that the mints he ate contained sorbitol, which “could have” caused his positive test result. The legal outcome? Thumbs down - and Galluccio failed to mention that in his most recent press release proclaiming his innocence on this latest offense.

As a Norfolk County, Massachusetts criminal defense attorney, in my professional opinion, this latest claim stretches credulity beyond the breaking point, and it poses an interesting professional question of when a defense lawyer should re-think accepting a client who clearly has a serious addiction problem, and who clearly poses a threat to public safety. Zealous defense of my clients is a trait I'm known for - and I'm proud of it. But at some point, a lawyer must make a decision in a case like this, a decision that will serve the client, protect the public, and allow the attorney to sleep at night.

In my next post, I’ll discuss what happens next legally – which will serve as a good backgrounder on probation violation hearings.

From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost - the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.

Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.

Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don't call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)

This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.

In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.

Before reviewing this case, let me say that almost anyone reading about this case – in particular of the SJC’s decision to overturn this conviction – is going to be disgusted over the facts within the case. Regarding the facts of this case, I’m equally disgusted. But when considering the ruling, it’s critical to bear in mind the legal elements of the court’s decision.

Back in 2004, the Worcester, Massachusetts Police Department was conducting an undercover sting operation to root out Massachusetts sex offenders – particularly child sex offenders. Posing as a prostitute, an undercover female police officer met with one especially perverted, twisted individual by the name of Kerry Van Bell. Van Bell met the “prostitute” in a convenience store parking lot, where the undercover officer offered to make a 4 year-old girl available to him for sex. The undercover officer informed Bell, however, that the child was not with her in her car, and that Bell would have to follow her in his car to drive to where the child was located. Bell, while voicing his displeasure that he child was not readily available to him then and there, agreed to follow the undercover officer in her car, and agreed to pay $200 for the child upon arriving at the “destination.”. Upon exiting the store parking lot, police cruisers in waiting swarmed in on Bell, arresting him and charging him with attempted rape of a child (M.G.L. c.265, Sec. 13B -13B-3, and solicitation of sex for a fee (M.G.L. c. 272, Sec. 2-8.)

At trial, Van Bell was convicted of both “attempted rape of a child” and solicitation of a prostitute. He appealed on several grounds, arguing that there was insufficient evidence to convict him on the attempted rape charge. This is where the legalese comes in. You see, while the police, the prosecutor, you, me, and even the judge knew this sickening pervert fully intended to rape a (unknown to him, fictitious) 4 year-old child, the legal issue on appeal was, “Did the defendant come close enough to the charged act (attempted rape,) to warrant a guilty finding on that charge”? The answer was no.

The reason? The legal definition of “attempt.” It’s not the same as a lay person understands it to be. It’s far more surgical and legalistic. You see, an “attempt”, in the eyes of the law, must go beyond mere agreement to commit an unlawful act; it must exceed “preparation” to commit an unlawful act, and progress or mature into “perpetration”. In this case, the SJC majority found that this defendant – while he fully intended to commit the act – hadn’t yet undertaken steps to legally “attempt” the rape. Specifically, this required an “overt act” under the relevant statute – and the court’s majority found that “overt act” to be lacking here. Hence, the court reversed the “attempted rape” charge – but they did find Bell guilty on the charge of solicitation of sex for a fee.

Sounds unfair, doesn’t it? I wouldn’t blame you for feeling this way. But these legal principles and maxims exist for sound reasons. Once they start to slide to accommodate individual prosecution objectives, no matter how laudable those objectives, and how horrible the crime, justice will suffer in the long term.

As a Boston sexual offenses lawyer, I’ve seen my share of detestable crimes. But I’ve also seen my share of cases where prosecution should not have been brought in the first place. Remember, if people want the law to stand up for them, they need to stand up for the rule of law.

An Arlington, Massachusetts high school football player has been formally charged with criminal assault and battery, as the result of a “head-butt” he inflicted against an opposing team’s player. Arlington Catholic High School football player James LaShoto was arraigned this Friday in Cambridge District Court, where his lawyer entered a plea of not guilty on his behalf. Authorities say the 17-year-old LaShoto deliberately “head-butted” Abington High School player Daniel Curtin in his (Curtin's) head, after Curtin's own helmet was knocked off during a Sept. 19 2009 game. Curtin suffered a concussion as a result, and could not play football for 10 days due to medical concerns surrounding his head injury. Arlington Cathlolic High School suspended LaShoto for two games as a result of the incident. (Can someone say "slap on the wrist"?) His lawyer, Ronald Martignetti, said although the play was "dirty," it did not constitute a criminal act, and thus his client should not have been criminally charged.

An interesting question. Legally, criminal assault and battery occurs when a victim is placed in imminent apprehension of an un-consented to physical contact, and when some type of harm results from that contact (however minor the harm might be.) The legal issue that is going to determine whether or not this particular defendant should be found guilty of this charge, centers on two legal elements here – the elements of “intent” and “consent”. Specifically, intent on the part of the defendant, and consent on the part of the victim. In contact sports such as football, aggressive physical contact is unavoidably expected, and so are injuries. Players provide what is known as “implied consent” to contact of the type that would be normally expected and required within the context of the sporting activity. (The consent is “implied” by virtue of voluntarily participating in the sporting activity; hence, there is no need for players to execute written or “express” consent.)

One of two central questions in this case will be, did the defendant, LaShoto, specifically intend to inflict harm on the victim here – harm of the type that would not be expected, or otherwise legally excused, under these specific circumstances (i.e., a contact sport such as football)? Concomitantly, the second question is did the victim here, Curtin, give his consent to be touched or contacted in the manner that caused his injuries? We’ve all seen countless examples of players being carried off a field on a stretcher, after being injured in a game. So why has this youth been charged? Because while the victim here, through his very act of participating as a player, gave his implied consent for physical contact of the type inherent in this sport, neither he nor police authorities believe that he gave his consent for this specific type of physical contact, which caused his injuries. The defendant here is charged with intentionally head-butting the victim in the head, when the victim did not have his helmet on, and the defendant did have a helmet on. The prosecution's argument will almost certainly be that the defendant had the specific intent to engage in a type of physical contact that the victim had not consented to, and that the defendant also had the specific intent to inflict serious bodily harm on the victim. A judge or jury could infer the specific intent, primarily from the fact that the defendant head-butted the victim with the defendant's helmet on, knowing that the victim was not wearing a protective helmet.

The defense will likely argue that the victim impliedly "consented” to this type of bodily contact by playing in the game, and that the defendant’s actions did not constitute evidence of specific intent to cause bodily harm. If the prosecution does not advance the “specific intent” (to harm) theory, it may also avail itself of another prosecutorial argument known as “reckless disregard.” This approach would argue that even if the defendant did not have the specific intent to harm, he nonetheless acted with “reckless disregard” for the safety of the victim. As a former Special Assistant District Attorney and now a Norfolk County, Massachusetts assault and battery defense lawyer, I think a strong argument can be made that the defendant in this case possessed what is legally known as “specific intent” to inflict unconsented-to assault and battery on the victim, and that the victim did not grant implied consent for such physical contact. That doesn't mean this defendant will be convicted, but it will make for an interesting trial, if the matter is not disposed of through plea agreement.

LaShoto was released on personal recognizance. He is due back in court Dec. 21.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: "When Wishes Are Few The Heart Is Happy." That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of "Buy, Get, Acquire." But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

My best wishes to all of you.

Thankfully,

Bill Kickham

That scheme can make sense from both a correctional, as well as public safety, point of view. Notwithstanding the fact that I am a practicing Massachusetts criminal defense attorney, I can easily acknowledge that it makes no sense to allow a serial rapist or serial child abuser to be released after completing a criminal prison sentence, solely because “X” number of months or years has been served, if that convict remains just as dangerous at the completion of his criminal sentence, as he was the day he began it. The critical issue is, however, who should decide this question – a judge or a jury? Historically in Massachusetts, it is the defendant who has been allowed to make that choice whenever the Commonwealth filed such a petition – not the particular District Attorney’s office filing the petition. What’s the big deal with that, you ask? Well, most defense attorneys representing a convict at such a trial would choose to have the matter heard by a judge, not a jury, and a prosecutor has had no say in the matter. The reason that most defendants choose to have the matter tried before a judge, is that many defense attormeys believe that historically, judges are more likely to release a convict, than a jury. Judges typically decide this issue based upon very formal, and justifiably demanding, legal criteria before granting a prosecutor’s petition. The Commonwealth must meet specific legal criteria in demonstrating that the convict suffers from a “mental abnormality or defect,” therefore making him likely to re-offend. A good number of judges have historically denied those petitions, because judges interpret those petitions very strictly. The result: Massachusetts sexual offense convicts are released, and many re-offend. This was witnessed most recently in a widely-publicized sexual assault at Massachusetts General Hospital.

In that particular case, the District Attorney’s office that was involved, had petitioned a court to civilly commit the convict at the end of his sentence. At the defendant’s request, the matter was heard before a judge, and the judge denied the prosecutor’s request, finding that the Commonwealth did not meet its burden of proof, and therefore that the convict did not pose a continued threat to the public if released. As fate would have it, the convict did re-offend, committing a sexual assault in Massachusetts against a woman, seriously injuring her. Predictably, the media in Boston and elsewhere reported that a judge released this person, and a public uproar (justifiably) followed. Many average citizens believe that too many judges are too lenient in deciding these petitions, and several media observers have noted that these petitions would be better decided by a jury chosen from the community, rather than a judge.

As a result, Middlesex County District Attorney Gerry Leone has filed a bill with the Massachusetts legislature, which would allow either the defendant or the Commonwealth to demand a jury trial. The thinking behind this approach is that a jury would be more sensitive to the risk of a convicted sex offender re-offending, and hence more likely to grant the prosecutor’s petition. As a Boston sex offenses lawyer, I don’t necessarily object to the idea of allowing a jury to hear the evidence in such petitions, and to decide the matter based on that evidence. Despite the perception held by some people that juries will grant these petitions more frequently than judges, the statistical evidence doesn’t necessarily bear this out. If, as a Norfolk County criminal defense lawyer, I truly believe that a convict who has served his or her sentence does not suffer from a mental abnormality or defect making him or her likely to re-offend, I have little doubt that I can make that case just as convincingly to a jury as I can to a judge.

And equally importantly, the public’s confidence can be restored in the criminal court system. When terrible incidents like the recent one I discussed above occur, many in the public decry “liberal judges.” This is despite the fact that most all the judges I know are responsible and fair jurists. If more of these decisions are placed in the hands of juries, that apprehension can be removed.

Truly dangerous sex offenders should be confined after their criminal sentences, and the public should be protected. (I wouldn’t want my wife, myself or someone I care about to be made a victim, either.) But let’s conduct this review process in a manner that maximizes public confidence.

It’s a case that some people might say warranted the admission of the evidence obtained by the police, but constitutional principles say otherwise. It seems that last December 15 2008, Lynn police officers on patrol spotted one Felipe Diaz and a passenger, driving in Diaz’ older-model pickup truck. One of the officers recognized Diaz from prior encounters with the Lynn Police Department, also recognized his truck, and knew that Diaz’ drivers license had been revoked for previous Massachusetts motor vehcile offenses. The officers stopped Diaz, arrested him for operating without a license, and placed him in handcuffs in the police cruiser. Diaz’ passenger was interviewed and allowed to leave. The officers had Diaz’ truck towed, and consistent with standard police procedure, conducted an inventory search of the vehicle. They discovered seven small bags of heroin hidden behind the front seat.

While he was being booked at the Lynn Police Department, Diaz’ cell phone rang several times. After “four or five” calls came in from different numbers within approximately twenty minutes, different officers at the station answered the phone, obviously acting as though they were the phone’s owner. One officer claimed, that a female caller say, "I'll take three.",at which Diaz yelled out "I'm at the police station." A separate officer answered another call and spoke with a man who identified himself as "Mike." According to this officer, this caller made "statements indicating an interest in buying drugs.” Aside from the possession charge on the heroin located in his truck, as a result of these phone calls, the defendant was charged additionally with “Intent to distribute,” which is an even more serious Massachusetts drug offense. Prosecutors introduced evidence of these calls in support of the “intent to distribute drugs” charge. Diaz’ defense attorney objected, filing what is called a “Motion to Suppress."

A Superior Court judge agreed with the defense.The central issue here, as almost always in “Suppression Motions,” was a constitutional one. The core of the defense’s argument here, was that the defendant had a legitimate “expectation of privacy” in his cell phone calls, and that, without a warrant, the officers use, manipulation, or examination of that phone, was an impermissible violation of the defendant’s constitutional right to privacy. The important element that lacking here – which if the police had it, might have resulted in the phone calls coming into evidence – was “probable cause” for the officers to answer the defendant’s cell phone. The court ruled that the police didn't have this 'probable cause', and as a result, any evidence obtained from the police answering those calls, is inadmissible. In his ruling on the defense’s suppression motion, Superior Court judge David A. Lowy wrote, "To allow government agents to answer a cellular telephone without a warrant under such circumstances would allow just the sort of ‘indiscriminate search ... conducted under the authority of "general warrants"' that courts are constitutionally bound to prohibit.” Exceptions to the normal requirement of a search warrant do exist, but Lowy found none under these circumstances. "The court agrees that the officers could not lawfully conduct a warrantless search of Diaz's cellular telephone where the facts known to them at the time they were booking Diaz did not create probable cause to believe that he was selling heroin through his telephone," he wrote.
By answering the defendant's phone, Lowy said, the Lynn police "... intruded into an area in which society recognizes a reasonable expectation of privacy."

Some people might find this judge’s reasoning to be shallow. I can understand that – especially when considering that cell phones are an acknowledged tool involving drug trafficking. The courts do recognize this fact, and in the past police have been allowed to glean evidence from cell phones, without a warrant, under limited circumstances. But this judge concluded that the police officers’ actions in answering the phone during booking, was unreasonable on several grounds. First, "The search of the cellular telephone was not contemporaneous with Diaz's arrest. A substantial amount of time elapsed between the moments when Lynn police took Diaz into custody ... and when the officers began answering his ringing cellular telephone at the station," Lowy wrote. Second, "By failing to identify himself immediately, an officer can take advantage of a caller's reasonable expectation that the person answering the cellular telephone is its owner and engage in the functional equivalent of eavesdropping, if only for a moment." Third, the prosecution was unable to demonstrate "the necessary link between evidence of criminality" and the phone.

Interpreting this ruling, the bottom lime is that the arresting officers “had no principled way of distinguishing between incoming calls to Diaz's cellular telephone that were likely to be perfectly lawful, and those calls that might produce evidence of criminality." The police did not have probable cause to justify a warrantless search of Diaz's cellular telephone for the purpose of securing evidence of an intent to distribute heroin. Accordingly,the court ruled that "the statements made by third parties to the officers who answered Diaz's cellular telephone, and Diaz's statements themselves, must be suppressed."

As I said above, I can see how a good number of people, especially police officers, would disagree with this ruling, arguing that it was reasonable to think that if a person was just arrested with a good deal of illegal drugs, and his cell phone rings several times while in custody, that person is probably dealing drugs. But as a Norfolk County, Massachusetts criminal defense lawyer, the correct way for police to have to handle that, under those circumstances, would have been to apply to a judge for search warrant to answer and manipulate this person’s cell phone. Those prescribed legal procedures must be followed. If we allow constitutional protections to be ignored, then slowly, over time, the protections we all enjoy could one day disappear.

And I don’t think anyone wants that.

A central issue here, is leveling the playing field between prosecutors and defense attorneys on the issuance of pre-trial subpoenas. As a Boston criminal defense lawyer, I can assure you that this issue is always lurking beneath the surface, in courtrooms across the state. The reason is that historically, District Attorneys’ offices in Massachusetts had always claimed that they had the authority to unilaterally issue subpoenas for the pretrial production of evidence in a criminal case, without having to obtain a judge’s prior approval - whereas defense attorneys were required to obtain judicial approval for such subpoenas. Doesn’t sound too fair, does it? Notwithstanding, Middlesex County District Attorney Gerry Leone responded to the SJC ruling, by saying that prosecutors will continue to seek recordings of inmates’ phone conversations. "This decision clarifies the process that the commonwealth must follow to obtain communications made by incarcerated defendants who have previously been informed that their calls are being recorded," Leone said. "It continues to be our position that this and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls and are confident that we will prevail in these efforts."

Odgren’s lawyer had argued that prosecutors were required to appear in front of a judge to request the tapes, and further that prosecutors needed to request specific days and times that were recorded, instead of large spans of recordings so they could try to “mine” the recordings for anything useful for the Commonwealth’s case. The court agreed, and as I read this opinion as a Norfolk County Massachusetts criminal defense attorney, it appears to me that the court may have left the door open to a future ruling that depriving a juvenile of any opportunity to communicate privately with his family about his case, might constitute a violation of constitutional rights. The other side to this argument, of course, (and not a completely illegitimate one,) is the fact that inmates, and those who are either visiting them personally and/or talking with them over the phone, are clearly informed beforehand that their conversations are being recorded.

Odgren, who remains in jail awaiting trial, faces life in prison without the chance of parole if convicted of first-degree murder in Massachusetts. He is scheduled to appear in Middlesex Superior Court on Oct. 26 for a pretrial conference.

The case concerns a shocking event that occurred in January 2007, at Lincoln-Sudbury Regional High School, which I’ve blogged about previously (actually, it was my very first post on this blog). The defendant was a then-16 year old high school student by the name of John Odgren, now a guest of the Commonwealth at the Middlesex Jail in Cambridge (he was previously held at a juvenile facility in Plymouth, until he turned age 17). On January 19 2007, Odgren is accused of luring a fellow student into a boys bathroom in the high school - a student he didn't even know and had apparently no history with - and plunging a 13-inch carving knife into his heart five times, killing him in a savage bloodbath. When the attack was finished, Odgren openly admitted to bystanders that he killed the boy. Witnesses reported that he even helped to try and stop the victim’s bleeding. His attorney does not dispute that Odgren committed this murder. His defense will be based on a legal principle known as "Lack of Criminal Responsibility," which essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. Reportedly, this defense will be based on Odgren’s assertion that he suffers from "Asperberger’s Syndrome" – a type of autism that can allegedly cause uncontrolled, violent behavior.

Prosecutors aren’t buying this claim, and to prove that Odgren does not suffer from any such mental disorder, Middlesex County District Attorney Gerald Leone’s office tried to obtain tape recordings of Odgren’s phone calls to family and friends outside the jail, as well as recordings of his conversations with visitors inside the jail (visitors are separated from inmates by a glass pane, and the inmate must communicate with such visitors through a phone). Inmates and visitors are advised in writing that all such conversations will be tape-recorded. The District Attorney wanted tapes of Odgren’s conversations, presumably to use them as evidence at trial to try to prove that he relates in a perfectly normal manner to other people – that he does not suffer from a mental disease or defect. If a jury were to hear recordings of conversations that Odgren has had with friends, family and visitors while in jail - in which he displayed no discernible evidence of a failure to understand his actions or exhibited no other evidence of mental illness - that would present a formidable problem for the defense.

From a prosecutorial point of view, that's not a bad strategy. But it's the manner in which prosecutors had tried to obtain the tapes, that resulted in the SJC's ruling here - not the tapes themselves. The vehicle by which prosecutors tried to obtain the tapes is known as a “subpoena dues tecum." This is an instrument that is used to obtain documents from a witness (in this case, prison administrators who kept the tapes of Odgren’s recorded conversations). Subpoenas are usually issued automatically by a court clerk, and must be served personally on the party being summoned. In this case, prosecutors issued the subpoena to jail administrators without prior court approval, and the jail turned the tape recordings over in lieu of a hearing in front of a judge. Note to county sheriff's and state prison administrators: Think twice about this from now on.

I’ll tell you what the SJC specifically had to say about this, and why, in my next post.

In a 4-3 ruling, the SJC ruled earlier this month that both prison inmates, and detainees (persons who have been arrested but not yet tried,) have "no objectively reasonable expectation of privacy" in their phone conversations. The ruling means that prosecutors and grand juries may access the recordings of those phone calls. The ruling applies to all kinds of detainees and inmates, from those accused of assault and battery to those convicted of sexual assault, rape and drug offenses.

The majority opinion, written by Justice Roderick L. Ireland, ruled that due to the fact that inmates and detainees are informed when they are first incarcerated that their calls are being recorded, "no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena." The decision affirms a contempt order issued previously against Suffolk County Sheriff Andrea Cabral by Suffolk Superior Court Judge Thomas E. Connolly. Cabral had previously declined to provide a grand jury with telephone recordings of a particular pretrial detainee, even though she had received a subpoena for them. According to the decision, Cabral supported turning over the tapes to the grand jury, but was concerned that an unrelated Superior Court decision "called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees' and inmates' telephone calls." It was through her act of refusing to turn over the calls, that she sought a clarifying opinion from the SJC. And she got it.

Predictably, law enforcement officials supported the decision, arguing that it will help prosecutors capture crucial information in order to secure convictions of suspected criminals. Prisoners’ rights advocates, equally predictably, termed the decision a major departure from previous case law in this area. Principally, they feel that the ruling will disproportionately impact poorer detainees, who cannot afford bail, and hence have no other access to a phone.

Notably, the decision was graced by a stinging dissent from Chief Justice Margaret H. Marshall, who accused the majority of enacting "sweeping" and "erroneous" changes to existing case law. She felt that the state's Declaration of Rights does and should apply to recorded prisoner phone calls. She also expressed concern that the ruling will unfairly impact low-income detainees, who typically cannot post bail.

As a Norfolk County Massachusetts criminal defense lawyer, I think prisoners' rights must always be viewed through the prism of the constitutional presumption of innocence. However, emphasizing the indispensable prior warning given to all pre-trial detainees and convicted inmates, that their phone calls are being recorded while they are in custody, I think the the ruling is a reasoned one. Were that warning not clearly made, I would join Chief Justice Marshall in her dissent.