The judge hearing the case at that time, then-Superior Court Judge Barbara J. Rouse, overruled the defense objection, and allowed the lab certificates to be admitted into evidence pursuant to Massachusetts General Laws Chapter 111, Sections 12 and 13, which requires the Massachusetts Department of Public Health to “make … a chemical analysis of any narcotic drug … when submitted to it by police authorities … provided, that it is satisfied that the analysis is to be used for the enforcement of law.” Section 13 states that the “presentation of such certificate to the court by any police officer … shall be prima facie evidence that all the requirements [of section 12] have been complied with.”

At trial, prosecutors introduced the lab reports asserting that the substance inside the bags that were recovered by police was cocaine. The lab technicians who wrote the report did not appear as witnesses at trial. Without success, the defendant’s lawyer objected to the reports being allowed as evidence, arguing that the unavailability of the laboratory technicians who wrote the lab reports, for cross-examination, violated the defendant’s rights under the Confrontation Clause. No luck: The defendant was convicted and sentenced to a three-year to three-year-plus-one-day state prison term.

In an unpublished decision, the Massachusetts Appeals Court affirmed the Superior Court Judge’s ruling, and later the Supreme Judicial Court denied review without comment. The defendant then appealed to the U.S. Supreme Court for review, and the case was accepted for review (very, very few cases are accepted by the court for review.) In a 5-4 ruling authored by Justice Antonin Scalia, the court reversed the conviction.
Scalia wrote, “Under our decision in Crawford v. Washington, the (laboratory) analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.” Justice Anthony M. Kennedy wrote the dissenting opinion, was joined by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel A. Alito Jr.

Massachusetts Attorney General Martha Coakley, who personally argued the case, said she was “very disappointed” with the decision. “It is particularly disappointing that the majority failed to appreciate that its ruling today will significantly burden our ability to prosecute countless drug cases in the Commonwealth’s courts,” she said. Although we are still reviewing the implications of today’s decision, our office is prepared to work with other law enforcement officials in the Commonwealth to adjust our practices to comply with this new constitutional rule while still holding accountable those who violate our drug laws.”

As a Massachusetts drug crimes defense lawyer, I believe this U.S. Supreme Court ruling to be the fair and correct one. I acknowledge that producing laboratory technicians, in-person, for every criminal trial where they are needed, will be cumbersome and at times difficult. But it is a superior option to trumping the rights guaranteed by the U.S. Constitution.

Along those lines, this next case illustrates the definition of murder in Massachusetts, and when someone is “dead.” Nathaniel Turner was a 7-year-old boy who by all accounts was a pleasure to be around. According to those who knew him well in his hometown of Eufaula, Alabama, the 7-year-old liked to stay home and play in the yard. In school, He was an excellent student at Eufaula Primary School, whose school principal Suzann Tibbs, now thinks of his smile: “The smile in the picture - he has it all the time,” she said of a recently-taken photo. He was raised by his grandmother Chrissy Taylor, from the time he was born. Now, it seems, that promising life is ended. Far too young, and far too cruelly. Nathaniel was declared “clinically dead” Tuesday June 23, 2009 by doctors at UMass Memorial Medical Center after he was allegedly beaten by his father, Leslie G. Schuler, on Father’s Day.

The 36-year-old Schuler now faces multiple charges, including several counts of assault and battery and assault with intent to murder. News sources, including The Worcester Telegram & Gazette, are reporting that Schuler allegedly slammed Nathaniel’s head into a wall on Father’s Day. It was reportedly the latest in a series of abusive acts that have occurred since Nathaniel was ordered by a court to spend the summer with his father. A Massachusetts Juvenile Court judge is expected to rule soon whether Nathaniel will be taken off of life support at UMass Memorial Medical Center University Campus.

How a 7-year-old could be placed in such an abusive situation is disturbing. According to the Worcester Gazette-Herald, Schuler was also charged with a 2006 assault stemming from an alleged attack of a man with a pipe. Schuler has reportedly paid child support for three years according to the Boston Herald, but this summer was apparently the first time that Nathaniel has spent this much time with his father in Massachusetts. Family members stated that Nathaniel did not want to leave his hometown of Eufaula, Alabama for the summer. The boy had allegedly been abused both physically and mentally by his father for several weeks, according to media reports. Schuler’s girlfriend, Tiffany Hyman, 28, allegedly watched the abuse take place. She was charged with two counts of assault and battery on a child causing serious bodily injuries. Schuler has been held on $250,000 cash bail and Hyman on $50,000.

Is this a horrid case of child abuse, or murder? As the murder section of my web site makes clear, at present, in Massachusetts it has been ruled by the Supreme Judicial Court that death essentially occurs when a patient exhibits no spontaneous respiration, when no positive electroencephalogram (EEG, or brain waves) exists for a period of 24 hours, and when the patient does not respond to painful stimuli. Together, these factors constitute brain death. Hence, were someone to walk into a hospital room and unplug the respirator from such a patient, there would be no "murder." Tragically, that seems to be the case for Nathaniel Turner. If so, Leslie G. Schuler, his father, will stand trial for murder or manslaughter. If convicted, one can only hope that his mental torture that haunts him from this act will last each day he is in prison, and for the rest of his life. I say this as a Massachusetts murder defense lawyer, who believes that each defendant should receive a strong, vigorous legal defense in court. Schuler deserves no less under our system of justice, like anyone else accused of a serious crime. But if the evidence convicts him, I hope he suffers long and hard. And I say that, as a man of conscience.

The report I’m referring to, released Thursday June 18 2008 by the Massachusetts Bar Association, places the truth front and center. The report's title: “The Failure of the War on Drugs.” This study, which is the result of more than a year's work by a task force of respected lawyers, law enforcement and mental health professionals, comes to the conclusion that state politicians have almost universally ignored: Massachusetts’ drug laws and policies, like so many other states, are “wasteful, ineffective and cruel.” As a Massachusetts drug offenses lawyer, I can attest to the accuracy of that conclusion.

Among the task force’s findings:

• Drug ‘education’ programs fail to teach anything useful and show no signs of preventing drug abuse;
• Addiction treatment programs are underfunded and out of reach of those who need them most.
• Incarceration isn't an effective deterrent to drug use or to recidivism, and never has been.
• Most of those who are imprisoned for drug-related crimes receive no treatment and, thanks to mandatory minimum sentencing laws (which I’ve blogged about previously,) receive no post-release supervision.

Does anyone wonder so many ‘offenders’ them find themselves behind bars again?

Even those who don’t tolerate alcohol or drugs should care about the massive public finances and judicial resources wasted on policies that don't work. Between 1980 and 2008, the state's prison population rose by 368 percent and the county jail population grew by 522 percent. Why? Largely due to mandatory minimum drug sentencing laws, that’s why. Believe me: I’ve seen the most inoffensive people, who might have been caught selling a small amount of marijuana to a friend within 1000 feet of a school, go to jail in a heartbeat as the result of these laws: People no more dangerous than you or me. Have mandatory drug sentencing laws like these reduced serious drug-related crime? You’d be a fool to think so. As a Massachusetts criminal defense lawyer, I can assure you they have not. I've seen judges shake their heads in regret at being forced (that's where the "mandatory" comes in - it takes away a judge's sentencing discretion) to sentence a non-dangerous, low-level frug offender to jail time.

What should be done? I’ll talk about that in my next post.

It seems that without much public knowledge, and under the radar, several communities in Massachusetts that are not exactly known as hotbeds of criminal activity, have received high-powered and high-tech assault rifles and combat weapons from the U.S..military. Few people would question the need for or wisdom of having such weapons in large, urban police departments like Boston, Lawrence, Brockton or Springfield (not to disparage those communities, just to note that they are large urban cities that have seen more than their share of urban violence and gang warfare.) However, the sleepy summer resort community of Wellfleet, and the upscale town of Belmont?

Those towns aren’t alone in quietly receiving such assault weapons, either: At least 82 local police departments in Massachusetts have obtained more than 1,000 assault/combat weapons over the last 15 years, under a little-known federal program that distributes surplus guns from the U.S. military. At Salem State College, where recent police calls have included false fire alarms and a goat roaming the campus, school police received two M-16 military assault rifles. In West Springfield, police acquired even more powerful weaponry: two military-issue M-79 grenade launchers.

Military assault rifles? Grenade launchers? Is Massachusetts crime so bad that this type of firepower is needed by small, local police departments? More so, an inquiry by the Boston Globe found that most towns receiving these military weapons, did not notify their community of the acquisitions. Now that the story is out, a lot of people are asking legitimate questions. Asked Kevin M. Mullins, 25, who works at a Belmont bookshop, "Is this a war zone? "For what logical purpose do they need semiautomatic rifles in Belmont?" A resident of Wellfleet commented, "About the worst summer time crime that occurs here is that someone steals their fries along with a meal.” Many police departments take a different view, and say they are taking advantage of free weaponry in the event they might need it to ward off terrorists or stop a shooting rampage. In my experience as a Massachusetts criminal defense attorney, the potential need for that is pretty remote. Almost all murder, rape or sexual assault, drug offenses or assault and battery crimes can be dealt very effectively with the standard firearms that all police departments carry.

As a Massachusetts criminal defense lawyer, I believe that police departments should have the weapons they need to deal with the threat level they hisorically and typically face: A city like Boston, Brockton, or Lawrence (as examples,) face far more serious threats than a small, historically peaceful community (such as Wellfleet, Marblehead or Belmont, as examples.)

I’d be interested to know what my readers think. Fill out a Contact form on this blog, or email me at: bill@kickhamlegal.com.

In my view as a Massachusetts criminal defense attorney as well as a Massachusetts personal injury attorney, that idea is plainly ridiculous. Simple deductive reasoning can expose this, if more people took the time to actually think about a problem as serious as this, before spouting out unfounded and unjustified opinions. Try to defeat this reasoning: Every state in the United States, including Massachusetts, legislates that persons under a certain age – usually but not always age 16 – are unqualified to operate a motor vehicle. Unqualified in what respect? According to almost all states, persons under age 16 lack the mental, emotional and developmental skills necessary to operate two tons of glass and steel on the public roads. Wisely and logically, we require that such persons be of a certain age or older before they can apply for a driver’s license and operate a motor vehicle on the public roads. That makes sense; it always has.

Yet on the extreme other end of the spectrum – when persons have reached an age that I think all reasonable people could logically conclude disqualifies them from operating a motor vehicle – we dare not say so. Why? Two reasons: 1) Because senior citizens have the right to vote – minors do not. (Hence, legislators in any state don’t care what minors think, but pay scientifically close attention to what elderly voters think. And 2) The numbers of those elderly voters are growing every day. The U.S. Census Bureau projects there will be 9.6 million people aged 85 and older by 2030, up 73% from today. Don’t think every elected state legislator and governor doesn’t have those numbers emblazoned in their minds.

Want visceral proof of this? Not one state has an upper age limit on drivers.

The political result? Barely anything is done, and seniors well into their 80’s and 90’s are behind the wheel in Massachusetts and across the country. In many cases, these unqualified drivers, who in their upper 80’s (and beyond) simply cannot physically possess the visual acuity or responsive motor skills needed to safely operate a motor vehicle, are just as dangerous as drunk drivers. That may sound severe, but it’s true. Road safety analysts predict that by 2030, when all baby boomers are at least 65, they will be responsible for 25% of all fatal crashes. For comparison, in 2005, 11% of fatal crashes involved drivers that old.

The aging of our population has resulted in more and more elders clinging to the independence that cars give them, but losing their ability to operate those vehicles, causing more accidents. Many of these accidents are fatal. Would the person who cares to be maimed or killed next please raise their hand?

Debates over how to deal with the growing problem of elderly drivers are resonating in statehouses across the nation. No single approach has developed, but Texas has proposed a measure that could lead to more frequent vision tests and behind-the-wheel exams for drivers 79 and older. As a recent piece by USA Today made clear, the only measure scientifically proven to lower the rate of fatal crashes involving elderly drivers is forcing seniors to appear at motor vehicle departments in person to renew their licenses. This has been documented by the Insurance Institute for Highway Safety (IIHS), citing a 1995 study in the Journal of the American Medical Association (JAMA.)

Safety and health specialists are especially concerned about drivers 85 and older, who, federal crash statistics show, are involved in three fatal accidents a day. And that’s where, notwithstanding the fact that I am a Massachusetts criminal defense lawyer and conscious of civil liberties, I draw the line. In my view, seniors from 79 to 85 should be required by Massachusetts law to be examined in person at an RMV, for the visual and motor skills necessary to operate a motor vehicle in Massachusetts. After reaching age 85, it should be deemed illegal to operate a motor vehicle upon a public road in Massachusetts. While I believe that the state legislature should enact such a law and that violation of such a law should be a crime, I do not believe that the penalty should incorporate jail time. Rather, there should be an escalating series of fines, from a first offense fine of perhaps $500, to several thousand dollars for multiple offenses.

Massachusetts public safety officials are fond of slogans: “Don’t Drink and Drive – Stay Alive”; Click It or Ticket.” (Seat belts.) My solution to the elderly driver problem: “It's The Law: If You’re Over 85, You Can’t Drive.” Persons over the age of 85 should be denied drivers licenses in Massachusetts. And for those who disagree, I’ll repeat my question: Would the person who cares to be maimed or killed next on the road, please raise their hand?

Now, to the legal reasons why: The Appeals Court ruled the way it did here, based largely upon two legal concepts: “Retroactivity,” and “Due Process.” Of these two concepts, most people are more familiar with due process. This legal maxim, embedded in the United States Constitution and the Massachusetts Constitution, requires (very basically and broadly) that anyone subjected to a criminal proceeding be given notice and an opportunity to be heard as to the charges or proceedings against them. “Retroactivity” refers to the process of punishing someone in the present, based upon an unsupported inference or assumption that the person still poses a threat that the legal proceeding seeks to protect against. Retroactivity played a key role in the Appeals Court’s decision here, as the appellant’s offense, which SORB argued made him subject to its continuing registration requirement, was a single offense that took place almost 25 years ago. More important than that, there was compelling evidence that the incident was fueled by a drinking problem that has not existed for many years since the time of the offense, and there was strong evidence that appellant had reformed his life in many respects since that time.

In this case, the hearing officer at SORB found that Doe presented a "low" risk to reoffend and a "low" degree of danger to the public. Resultantly, she classified him as a level one sex offender (the least serious level) but notwithstanding, the finding subjected him to the continuing registration requirement as a sex offender. The court noted that in so finding, it could be argued that the hearing examiner based her reasoning on the fact that Doe had not shown that he presented “no” risk of re-offense or threat to the community. But the court found that this “inferential leap,” was not sustainable here where: a) such a finding was legally foreclosed by the sex offender registration statute; b) the record did not show that the hearing examiner considered the issue of his present risk level; and c) the hearing examiner, at the time she made her ruling, did not have the benefit of a prior Massachusetts Supreme Judicial Court (SJC) ruling preventing such inferential conclusions.

In view of these facts, the Court remanded the hearing back to SORB, ordering that the SORB hearing examiner must explicitly consider, and make written findings pertaining to, whether Doe currently poses a present risk of re-offense or present danger to the public. In its ruling, the Court noted that the Supreme Judicial Court has emphasized that retroactivity and due process concerns are implicated where registration is required solely based on the characteristics of an offense committed more than two decades earlier. In order to avoid retroactivity concerns, the court ruled that sex offender registration can be required only based on an assessment "of the person's current level of dangerousness and risk of reoffense" (emphasis added). Thus in this case, if upon reconsideration the hearing examiner again concludes that SORB has met its burden of showing that Doe presents a "low" risk of re-offense or a "low" risk of danger to the public such that he must register, the facts upon which that assessment is based must be specifically found, particularly identifying any facts that postdate the appellant’s offense, as well as the evaluative process used to balance the characteristics of Doe's offense against Doe's life for the past 25 years.

In addition, the court ruled that the explanation of that evaluative process “Should also include the basis upon which the hearing examiner concludes (if she does so) that any predictive value can be placed on Doe's 25-year-old offense, and to the extent that the offense has any predictive value, how that value is to be balanced and weighed against the totality of the other circumstances. These include, for example, the role alcohol may have played in the offense (and Doe's subsequent abstinence); the fact that Doe has no previous or subsequent history of sex offenses; his medical, vocational, and living situation; and any other factors that would bear on the predictive value of Doe's 25-year-old crime.”

The court emphasized that SORB's burden is to show that Doe presents a "cognizable risk of reoffense," not merely a hypothetical or speculative potential risk. The court’s ruling made clear that the term "low" must be given a reasonable interpretation; it should not be taken to mean "anything more than no."

Hence, while someone who is convicted or otherwise pleads guilty to a Massachusetts sex offense will be required to register as a sex offender with SORB, hearing officers at SORB will in the future be required to consider the petitioner’s “whole life” story, and specifically consider the recent and current state of that person’s broader life history, before requiring that he or she continue to register as a sex offender in Massachusetts.

The Massachusetts Appeals Court handed down an interesting decision this past week, dealing with the requirement that sex offenders in Massachusetts must register potentially for life as such, with the state Sex Offender Registration Board (SORB.) SORB is the state agency that is charged with registering and monitoring persons either convicted of, or who have accepted guilty pleas on, sexual offenses. To date, if a defendant in a criminal prosecution either pled guilty to or was convicted of a sex crime, he or she would be required to register with SORB indefinitely – no matter what circumstances surrounded the original crime, or how old the offense was. The Massachusetts Appeals Court has now modified that requirement.

In John DOE, Sex Offender Registry Board No. 24341 vs. SEX OFFENDER REGISTRY BOARD, the Appeals Court heard the case of “Doe” (a pseudonym,) who claimed that he was wrongly being required to continue to register with SORB as a sex offender, based upon a single offense 25 years ago, which he claimed was fueled by a drinking problem that he no longer has. The appellant was convicted in 1984 of assault with intent to rape, after leaving a Quincy bar. Since his conviction 25 years ago, “Doe” had enrolled in Alcoholics Anonymous (AA,) given up drinking, led a responsible life and had experienced no trouble with law enforcement or been involved in criminal offenses of any kind. A hearing officer at SORB concluded that though Doe posed a “low” risk, he still posed a risk, that the details of his personal rehabilitation were not material, and that he therefore was still required to register as a Level One sex offender (the least serious level classification within SORB.) Doe appealed to a Superior Court judge, who affirmed SORB’s findings. Doe’s attorney then brought the matter to the Appeals Court for review.

The Appeals Court ordered SORB to reconsider their decision, taking into account the man’s broader life history since his arrest, before determining whether he is still a risk and requiring him to continue to register as a sex offender. I’ll explain the legal reasoning and the details of why they did this, in my next post.

To combat what many perceive to be a growing problem here, some prosecutors across the country have suggested that emailing such images (by underage teens of themselves or others,) could constitute dissemination of illegal “kiddie porn.” While dissemination of nude and semi-nude images of persons over 18 is legal, such images of anyone under 18 are considered illegal pornography in almost all states. Dissemination of these images over the internet, via ‘sexting,’ might constitute a federal crime. Most sexting involves girls who intend to send the photo to a boyfriend or someone they are interested in. It used to be that if a high school kid were interested in another student, she or he would try to get into a study group with that student, or strike up a conversation. Not so any more. If these pictures stayed with the intended recipient and strayed no further, perhaps there wouldn’t result any real problems.

But of course, that’s not what happens. The “innocent” photo soon enough is forwarded to friends, and friend of friends, and faster that you can say “swine flu,” it spreads like a virus, and the whole school (if not half the town) has seen the images. Clearly, this is a bad idea and a foolish practice. Before she or he knows it, aside from being the talk of the school, the person who took the photo of him or herself, is the target of cyber-bullying, with threats made by enemies or extortionists to post the images on YouTube and the internet. A California-based nonprofit agency, i-SAFE, which provides an online safety curriculum for students in Grades K-12, recently coordinated “Cyber Safety Week” across various schools in Massachusetts, to warn of these dangers, and this is a good first response to this problem. The Verizon Foundation donated $100,000 for the training sessions. At the Greater New Bedford Vocational School where one such program was held recently, Bristol County Sheriff Thomas M. Hodgson commented, “This is a whole new crime prevention program for a threat facing our children and our parents.” Hodgson’s department has been sponsoring an Internet safety campaign for the last two years.

Clearly, ‘sexting’ is a bad idea and a foolish practice, and anyone familiar with the speed and ubiquity of the internet ought to know that – especially a teenager, as (believe it or not,) they tend to be far more proficient in internet use and applications than most adults. But should ‘sexting’ be a crime? Most anyone would agree that cyber-bullying should be a crime. But ‘sexting’? Should that be considered “pornography” in the commercial sense? (This is how nude and semi-nude images of children under 18 are restricted in magazines and publications.) Should teens found to have ‘sexted’ be required to register as “sex offenders”?

As a Boston sex offenses defense lawyer, I think that’s an extreme response. Let me know how you feel about this. Fill out a Contact Form on any page here, and send me your comments.

That being said, Gehartstreiter’s (or, as he’s been referred to elsewhere, “Whateverhisname’s”) defense lawyers are going to have one hell of a hard time convincing a jury that this defendant was legally insane to the point where he should be acquitted of this charge. The reason for this is that, in order for a jury in Massachusetts to find a defendant “not guilty by reason of insanity”, it must be proven beyond a reasonable doubt that the defendant was not just mentally unstable, but so mentally ill that he or she could not comprehend or understand the criminality of his conduct, or comprehend the difference between (legally) right and wrong. As a Massachusetts criminal defense lawyer, I don’t doubt that Gehartstreiter’s lawyers can demonstrate the Gehartstreiter suffers from Narcissistic Personality Disorder, or that he harbors delusions of grandiosity. The defense’s psychological experts can make that clear fairly easily (as could reportedly almost anyone who has spent ten minutes with this defendant.)

But insane to the point of not recognizing or understanding the criminality of his conduct in crafting an elaborate plan to abscond illegally with his daughter, assaulting his daughter’s social worker, then crossing multiple state lines in an attempt to avoid capture? A single juror's simple question: If he were so insane that he didn’t comprehend the criminality if his conduct, why the elaborate escape plan to run and hide?

Gehartstreiter’s defense team (ever recognize how losers like this guy – recall OJ – always have not just one defense lawyer, but defense “teams”?) will do their best, as they are ethically and duty-bound to do. But in my professional opinion as a Massachusetts criminal defense attorney, they shouldn’t hold their breath.

And neither should the rest of us.

Judging from the majority of posted comments to the Boston Globe’s website (which has been covering the story extensively, and has published over 100 reader posts on this subject on its website to date,) the Globe’s readership seems to feel that this case is, to quote Shakespeare, “Much Ado About Nothing.” Here is a sample of recently posted reader comments to the Globe:

• “I don't get why this case grabs headlines. Whateverhisnameis got a raw deal from divorce court and wanted more time with his daughter. He's got plenty of company with the thousands of other men in Massachusetts who get the short end of every divorce in this state. But if he didn't have a funky name that he changed, as many legal immigrants to this country do, this would be just another domestic case resulting from a bad probate court decision. Let Whateverhisnameis off with the crazy defense and focus on the real problem, men all over the Commonwealth suffering from one-sided legal decisions.” Posted by Andrew Palmer May 28, 09 08:56 AM
• “No one cares about this story. Once the girl was returned safe, that was it. Enough of this loser.” Posted by CB May 28, 09 09:01 AM
• “I think Single Dad has missed the point. As a father I can tell you this is not an issue of "fathering." This is about an evil individual putting his needs above those of his child. This may also be about a profoundly dangerous individual continuing his pattern of anti-social behavior...” Posted by Lorne D. Gilsig May 28, 09 09:35 AM
• “I’m still trying to understand why the media thinks this is a “major story.” Posted by Slim Pickens May 28, 09 09:39 AM
• “It grabs headlines because he's suspected of murdering a couple while living in California.” Posted by Brad May 28, 09 09:29 AM

“Brad’s” observation, above, comes half-way closest to the truth. The unsolved murders over twenty years ago of a married couple that Gerhartstreiter, a/k/a Rockefeller, or (as one Globe reader has dubbed him, “Whateverhisnameis”) rented an apartment from, and who are thought to have been murdered, is an unsolved case, a cold case that never really went anywhere in terms of suspects. Mix an unsolved mystery with the Upper-Crust exterior and elite life that someone with (allegedly) the name of “Rockefeller” has lived, add “The Con,” and you’ve got the perfect mix for a media case. How many murders do you think have involved spouses? If you answered “too many,” you’d be right. Sadly, they’re far too common. Yet it was the trial of Claus von Bulow, accused of murdering his wife Sunny von Bulow for millions in inheritance, that captivated the world and led to a major film, “Reversal of Fortune,” starring Glenn Close, Jeremy Irons, and Ron Silver. The story line? Wealthy Sunny von Bülow lies brain-dead, husband Claus guilty of attempted murder. A Harvard Law professor comes to his defense… That case provided the perfect mix of Upper-Crust elite, Murder, “The Con,” and Celebrity.

Standing alone on the charge of parental kidnapping, does this case merit the attention it is generating? Absolutely no – not on that charge alone. But be aware: This man has not been held in jail without bail for the past nine months because of that charge alone. If that were the one and only charge he faced, the public would have never heard his name, and he would very likely have been released with modest bail, soon after his arrest. This trial is not about simply the charge of parental kidnapping, of a daughter no one has disputed that he loves very much. It’s about getting to the bottom of much darker crimes. And in that sense, perhaps it merits our attention – if only to provide hope to the surviving victims of hundreds of other unsolved crimes across the country, that cold cases can be solved.

Is “Whateverhisnameis” a con man? Yes to that in my view. Is he a loser? Yes again. Is he a murderer? Quite possibly. But he’s raised an insanity defense to this kidnapping charge. Hence the salient question: Is he legally insane? I’ll discuss that defense, in my next post.

So who’s right? Is this ruling by the SJC good for the residents of Massachusetts, or not?

Think about it: The conservative view has its logic: If someone is carrying a concealed and unlicensed weapon, they’re almost certain to be a dangerous criminal, and it is a logical and reasonable conclusion that such persons present a danger to the public -- the very type of "dangerousness" that this statute contemplates. But what about the liberal view? If someone bought a firearm solely for the purpose of self-protection and not for the purpose of committing any crime, and then for some reason neglected to secure a Firearms ID Card (otherwise known as an “FID Card”,) and a police officer discovered it, should that person be locked up in jail prior to trial? Before answering, consider: Under Massachusetts law, mace and pepper spray are considered “firearms”. If the SJC had delivered an opposite ruling in this case, and a law-abiding person were to carry pepper spray solely for self-protection (against the risk of sexual assault, murder, or other violent crimes,) and were found by police during a traffic stop to not possess a valid FID card, that person could be thrown in jail, without bail -- without first committing any violent crime. Is that fair or just?

Writing for the majority on the court, Justice Francis X. Spina wrote that the relevant statute, M.G.L. Ch. 58A, does not include illegal gun possession on the list of criminal charges that qualify for the “dangerousness hearing” that several District Attorneys’ offices were using to hold such suspects in jail, pending trial. In the ruling, the court also rejected the argument that a catch-all phrase included in the statute gave prosecutors the legal authority to demand dangerousness hearings for dozens of criminal defendants in the past several years. "While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime," Spina wrote. "It is passive and victimless." Spina added: "That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result."

Five of the court's seven justices heard the case. In a stinging, lone dissent, Justice Judith M. Cowin ridiculed the court's conclusions, saying the ruling ignores the reality that illegal guns are at the heart of crime in the state."When a handgun or automatic weapon is involved, the purpose of the firearm is to injure or kill; there is no other reason for that weapon's existence," Cowin wrote. "We have recognized in various contexts that firearms are, by nature and design, dangerous instrumentalities." The majority, Cowin wrote, "reduced to its minimum, is simply a reiteration of the tired slogan that 'guns don't kill people, people do.' We know this to be a dangerous oversimplification. The fact is that people kill people with guns, and in a substantial number of cases those guns are unlicensed."

Contrary to the position many people would expect me as a Massachusetts criminal defense attorney to hold, I agree with Justice Cowin’s dissent. I find the majority’s opinion lacking in reason and logic. In my view, to write “That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result”, strains credulity and fails to incorporate simple logic, and ignores the realities of human behavior. It is an overly-pedantic exercise in illogic.

Commenting on the SJC ruling, the District Attorney who brought the challenge, Bristol County District Attorney C. Samuel Sutter, rejected the majority's thinking. "They are not as closely connected to the reality of urban, violent firearms crimes as I am," said Sutter, who noted that holding gun violators without bail before trial has resulted in a reduction of “Shots Fired” police reports by 25 percent in Taunton, 34 percent in Fall River, and nearly 40 percent in New Bedford since 2006, when he was elected and began employing this statute. ("Shots Fired" reports refer to police dispatchers sending officers to the scene where gunshots have been heard or witnessed.) Translation: Sutter was saying that because of his get-tough incarceration policy on gun violators, the sheer number of gunshot reports in his county declined dramatically since he began using this statute. I find that both impressive, and persuasive on this argument.

Surprised that I would agree with this position? Don’t be. While I firmly believe that everyone accused of a crime has the right to a full and vigorous defense - and while I zealously fight for every client using every legal tool and technique available to that client, I am also a realist. If someone’s carrying around a concealed, illegal weapon, there’s a reason that person is doing that. The reason involves violent crime, and that’s a danger to everyone. That defendant is entitled to a zealous defense on the charge, but law-abiding citizens of the Commonwealth are also entitled to be protected from violence the results from unregistered weapons.

That position may not make me popular among some of my more civil liberties-oriented colleagues at the criminal defense bar, but I believe it reflects the realities of the world we live in. And I don't want someone I care about, shot or worse because of short-sighted and pedantic legal reasoning.

After its passage, some District Attorneys’ offices in Massachusetts began to use the Dangerousness Statute to argue that illegal possession of a gun or firearm constituted adequate “dangerousness” to the public, to satisfy a motion to hold the gun violator in jail pending trial. Some District Attorney’s offices saw in the statute, a new tool to rid the streets of violent offenders who are found by police to be carrying a gun illegally. (It will surprise no one that, typically, violent offenders do not carry firearms licenses, or "FID Cards".) In a 4-to-1 ruling earlier this week, the SJC ruled that gun possession violators can no longer be held in jail under this statute, while awaiting trial. In an extremely controversial decision, the court ruled that illegal gun possession is a "passive and victimless crime." The court ruled that persons charged with possessing illicit firearms can no longer be held without bail (under this particular statute) as a "danger to society." (Note to the Justice Spina: While perhaps technically accurate, using the words "passive and victimless crime" to describe the carrying and concealment of an illegal gun, is not exactly the wisest of grammatical choices. And I say this as a Massachusetts criminal defense attorney.)

While several District Attorneys’ offices had used the statute for holding such defendants without bail, it was the office of Bristol County District Attorney C. Samuel Sutter which used it the most. He did so as part of his get-tough law enforcement strategy to cut down on gun violence, by seeking pretrial detention for every person charged with illegal gun possession in his jurisdiction, which includes the high-crime area of New Bedford. His office used it as standard procedure in all illegal firearms arrests, and since taking office, Sutter has sought 269 gun detention cases and prevailed in 163 of them. The case went to the high court after a lower court refused Sutter's request to hold several suspects on gun charges without bail for 90 days, and Sutter appealed to the SJC. In practical terms, the high court in this case was acting to end confusion among judges: In Bristol County, a Superior Court judge refused to apply the law to one defendant found to be illegally carrying a gun, while a Taunton District Court judge concluded the statute did apply to another defendant charged with the same crime.

Predictably, this ruling has caused a storm of controversy. I’ll talk about that in my next post.

A lot of people, especially advocates for victims of sex crimes, are understandably upset by this ruling. It is not uncommon for someone accused of a sex crime to be released on pre-trial probation, and without any means to monitor such a suspect, he or she is effectively released back into the community, where they may possibly re-offend. On the other hand, a person can be innocent of a crime they are accused of. Not everyone charged with a crime is guilty of that crime; people are often accused unjustly. In such a situation, it can be humiliating and onerous to be forced to wear a GPS tracking bracelet, 24/7. It is effectively a “Scarlet Letter”. This can be a tough issue. I’d like to know what my readers think about this issue. Email me at: bill@kickhamlegal.com, and let me know your thoughts.

Do police investigators and the Suffolk County District Attorney’s office believe that this was a pre-meditated murder (such as with the recent Massachusetts case convicting Neil Entwistle? Not likely.

Instead, Markoff is being charged with murder almost certainly because of what is known as the “Felony Murder Rule”. This legal maxim provides that a charge of murder will apply if a death occurs during the commission of a felony (think of a bank robbery.) When this happens, the homicide can be considered first degree murder, without establishing intent to kill. This rule "injects" the malice element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged underlying felony, and the death must have resulted from the "natural and probable consequence of the felony." Again, the prosecution doesn't have to prove intent to kill; only that a death resulted during the felony, or during the attempt to commit the felony. Here, Markoff was allegedly in the act of kidnapping and robbery of the victim when the death occurred, hence the charge of murder. I’m told by persons close to the investigation that so far, prosecutors do not believe that Markoff intended to kill the victim, but that the shooting and death resulted when the victim resisted the robbery.

That doesn’t change the legal reality for Markoff. If a jury finds him guilty of first degree murder, the mandatory sentence for this conviction in Massachusetts is life imprisonment without the possibility of parole. Looking ahead, it’s possible that a jury could find Markoff guilty second degree murder. The difference between a first and second degree murder verdict is that, for a second degree felony murder conviction, the underlying felony must carry a penalty of less than death or a life sentence. In Massachusetts, a second degree murder conviction carries a maximum sentence of life imprisonment with the possibility of parole after 15 years. Another major difference from first degree murder felony murder, is that a defendant charged with second degree can waive the right to a jury trial, and argue the case before a judge. This is otherwise known as a "bench trial."

Another possibility is that Markoff could be found not guilty of the murder charge, but found guilty of a lesser-included offense. As hard as it may be, remember: Our system provides that until convicted, the law presumes an accused to be innocent.

The answer is that circumstantial evidence can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. A suspect like Markoff is not at all prevented from advancing any particular defense he wishes (including self defense,) but that doesn’t mean a jury or judge would ever accept it as plausible. (Parenthetically, a defense invoking self-defense isn’t likely here, and would almost certainly fail, as the victim wasn’t armed, was shot three times and bludgeoned in the head. She weighed about 100 pounds; Markoff is over six feet tall and easily weighs 160-170 pounds.)

The earlier victim of kidnapping and armed robbery on April 10 2009 at the Westin hotel, later identified Markoff from hotel surveillance tapes. Police said they discovered forensic computer evidence showing that emails were sent from Markoff’s computer in his Quincy apartment to the victims, as well as forensic evidence of text messages sent from Markoff’s cell phone to the victims. Investigators also found plastic ties in the search of Markoff's apartment, and several pair of women’s underwear that Markoff allegedly took from his victims. Notably, despite the discovery of this underwear, none of Markoff’s alleged victims were sexually assaulted. Police have alleged that Markoff booked appointments with prostitutes and “masseuses” who advertised on Craiglist, not to sexually assault them, but to rob them at gunpoint for cash to feed a gambling habit that he had. Investigators theorize that Markoff (logically) assumed that a) High-end, “private” prostitutes who book luxury hotel rooms for services likely carry large amounts of cash; b) In a locked hotel room, there would be no witnesses to the robberies; and c) No prostitute was going to fight a man with a gun, nor, more importantly to the plan, report the robbery to police. Logical enough thinking, if you’re a criminal. But police and prosecutors theorize that everything went wrong and ended in murder when Brisman tried to resist Markoff from robbing her and tying her up.

I’ll have more on why the legal charges are what they are here, in my next post.