Boston Criminal Attorney Blog

The U.S. Supreme Court's recent decision striking down California’s law banning the sale or rental of brutally violent, interactive video games to teenagers is a low point in this country's culture. To say that the day this decision was issued (Brown vs. Entertainment Merchants Association,) was a “sad day,” is far, far too inadequate: It struck a new low point in this country's culture - a culture once civil, dignified and decent; now soaked wet with the sewage of violence, depravity and perversity.

Readers of this blog know that I've written preemptively, and passionately, about this critically important decision that the court was weighing. If you haven’t read my previous posts on this case and this subject, I'd encourage anyone reading today's post to click on that link immediately above in this paragraph, and read my two previous posts on this subject. If the above link doesn't take you to the first of those two previous posts, you can simply go to the "Search" field on the right side of this page, at the bottom of the "Topics" directory, and enter the words "violent video games." The results page should show you both of my previous two posts on this case. Click on each and you’ll be taken to the full post for each.

People know how I feel about the moral degradation of this country being openly fed by a judiciary that is all-consumed with the right of "commercial free speech." This doctrine, extrapolated from the laudable original goals of the First Amendment, has been perverted to allow all sorts of depravity in this country. While some (primarily liberals and corporate media interests) will argue that this decision is technically accurate on a purely legal level, it is morally - dangerously - flawed. These depraved, and highly interactive and realistic video “games” are so barbaric and depraved that words fail an adequate description. If you care to know just what they are like, and what’s in them, I suggest you read both of my Part One and Part Two posts previously published on this blog.

Shockingly, one Justice (Antonin Scalia,) was reported to have partially justified his vote to strike down this law with the hollow observation that some fairy tales have violence within them, and since they’re not banned, why should violent videos? To say that I’m stunned that this kind of a vapid, shallow, response came from the mind of a Supreme Court justice, is like having a nationally-renowned heart surgeon not know how to remove a Band-Aid. “Shocking” is far too minimal to describe this intellectually vacant analogy. As an experienced Massachusetts criminal defense attorney in practice over twenty years, I can assure you of this.

Note to Justice Scalia and the other justices striking down this law: Hansel and Gretel, and their analogous progeny:
A) Were largely comforting stories, intended for extremely young children, and did not have as their central focus and purpose the depiction of sadism and barbarism that words cannot adequately describe;
B) Were written, not videos, which influence the developing teenage brain far more powerfully than anything written;
C) Were not graphically violent;
D) Did not encourage and require the interactive, sadistic participation by children in the most barbaric of violent acts; and
E) Did not reward children or other readers for interactively engaging in the most violent, barbaric acts imaginable.

• Shouts of glee from children were not shrieked when a police officer was cut to pieces.
• ‘High-fives’ weren’t flying as a young child was encouraged and rewarded for slitting the throat and decapitating a woman.
• “Points” weren’t awarded to a young child watching an animation of a young woman begging for her life, as he douses her with gasoline and sets her on fire.

Neurologically, without question, audiovisual interaction and “rewards” stimulate areas of the developing brain to a degree never previously imagined. Numerous independent medical studies have confirmed this fact. Legitimate debate on this point, has long since passed. And the animation in these videos is NOT your parents’ Warner Bros. or Hanna-Barbera type of “cartoon": The computer-generated imagery that is depicted (“CGI”) is so realistic that you would swear you are seeing an actual video of real people being tortured to death, in ways that shock the conscience of any sentient, decent human being. As in my previous posts on this subject, I will not give these twisted video game manufacturers free publicity by mentioning the names of some of these products here.

It is absolutely indefensible that the Supreme Court in the late 1960’s used sexual “obscenity” as the basis for allowing the sale of adult magazines like Playboy and Penthouse, yet now refused to expand the definition of “obscene” to include these perverse, twisted violent video games. (And that is all they would have constitutionally needed to do, to uphold the California statute.) Our country is not only a less dignified, less civil, less moral country as a result – it a far less safe one. Mark my words, as a Boston/Dedham Massachusetts criminal defense lawyer, I can assure you: Teenage and youthful participation in violent crimes such rape/sexual assault, Domestic Violence, kidnapping, and even murder, will all increase.

Regardless of your faith, pray for this country. Honestly.

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

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

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

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

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

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

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

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

In my previous post on this subject, I wrote of the guilty verdicts returned by a jury last week in Springfield, Massachusetts, against Jason Strickland, the stepfather of Haleigh Poutre. The evidence against Strickland was compelling, he’s been found guilty, and hopefully his sentencing on December 11 will be extremely severe, as it should be. I say this as a Massachusetts criminal defense attorney who believes every person has the constitutional right to a zealous defense of any charges against him or her. But now that guilt has been established, someone like this deserves as severe a sentence as can be handed down. It isn't at all inconsistent for a defense attorney to believe in punishment after guilt had been established beyond a reasonable doubt, and Mr. Strickland's appellate rights will remain unchanged under the Massachusetts sentencing parameters for this crime.

But there are other guilty parties in this sad story, and at the center of them is the Commonwealth of Massachusetts, through its child protection agency, the Department of Social Services (DSS.) The negligence exhibited by DSS caseworkers in this case is appalling. On numerous occasions over five years' time, several people reported their suspicions to health workers and DSS officials that this young child was being badly abused by her step parents. Reporting parties included doctors and nurses at hospitals and medical offices that Haleigh was treated at on various occasions over those five years, as well as teachers, and even neighbors. According to sources, after each of these reports, DSS workers made inquiry to Haleigh’s stepmother Holli Strickland, and her stepfather Jason Strickland. Both Stricklands told DSS workers that Haleigh was responsible for casing her own injuries – and shockingly, DSS believed it. Repeatedly. Over five years. These injuries included cigarette burns, whip marks, ligature (rope) marks, welts and bruises from being beaten by something resembling an electric cord, cuts, lacerations, bruises, concussions and sprains. Yes, you read correctly: In the face of injuries and evidence like this, DSS officials bought repeated stories offered up by these twisted step parents that this young girl had “A habit of hurting herself.”

Incompetence and negligence on this level strains credulity. But it happened. Now, what to do about it? Plainly put, heads should roll here: There should be a top-to-bottom review of who was in charge at DSS when this incompetence was allowed to take place, and all responsible people involved in this inexcusable tale should lose their jobs, immediately. Further, DSS leaders and its caseworkers should not only be sued civilly for gross negligence, they should be held criminally responsible for what occurred here. Legally accomplishing this would be a tough task – something known as “reckless disregard” would likely need to be shown on the part of DSS executive leadership and its caseworkers, as opposed to ordinary negligence. There is also the problem of something known as the "sovereign immunity" of DSS leaders and workers acting in their official capacity. Notwithstanding, I believe a state prosecution should be undertaken here. It is not enough for DSS to “have the best of intentions.” It is not enough that it “means well.”

True, DSS workers handle many cases at once, and each is doubtless difficult. But that is no excuse for the type of gross incompetence and recklessness that occurred here. A strong message needs to be sent to this agency and the officials within it, from the commissioner of DSS, on down: This type of incompetence won’t be tolerated again: Drop the ball again on a scale like that which occurred in the Poutre case, and you’ll face criminal charges. Legislative action may be needed to create statutory language that would expose such personnel to criminal penalties, and politically as well as practically, the objections to such a statutory mechanism would be numerous. Obviously, any such language would need to be carefully crafted so as not to expose every DSS caseworker or supervisor to criminal charges should a mistake be made, as mistakes are unavoidable. Granted, that may be difficult to do. But if there are not stiff penalties to face for this type of negligence, what is to prevent it from happening again?

This past Wednesday, November 26, a Hampden County jury found Jason Strickland, stepfather of Haleigh Poutre, guilt on five of six counts of child abuse and neglect. This case has become famous for several important reasons: First, Haleigh has tragically become an icon for child abuse and neglect by parents and caregivers within many homes in this state, and across the country as a whole. Secondly, the case has raised right-to-life issues: Haleigh’s multiple injuries were so severe that several doctors determined that she had suffered irreversible brain damage, was in a “persistent vegetative state”, and would never emerge from that state. Based on those medical diagnoses, the Massachusetts Department of Social Services (DSS – the state child protection agency,) waged a four-month legal battle to remove life-support from the girl. Shortly after the state won that battle, Haleigh emerged from unconsciousness, and began breathing on her own. Now 14 years old, she can speak simple sentences, and communicate with an alphabet board.

Third, this case exposed the incompetence and neglect practiced far too often by the Massachusetts Department of Social Services (DSS), the state’s child protection agency. Evidence in the case made clear that for five years, state officials failed to detect the abuse this child was suffering, and failed miserably in their charge to protect this tragic, and innocent, figure.

Strickland, who was married to Haleigh’s adoptive mother, Holli Strickland, was found to have not only abused Haleigh himself, but also to have recklessly permitted multiple instances of abuse to be perpetrated against Haleigh by Holli Strickland, who the jury apparently concluded was the chief abuser in this horrid story. Shortly after the Stricklands were arrested on charges of abusing Haleigh, Holli Strickland was killed in an apparent murder-suicide committed by her (Holli’s) grandmother, who raised her. The world became a better place when that day arrived.

Jason Strickland now faces a maximum of approximately thirty years in state prison, and he should serve every day of this sentence. Notwithstanding my status as a Massachusetts criminal defense attorney, who believes strongly in the principle that every person charged with a crime is entitled to a zealous defense and a fair trial, I also firmly believe that people who have been found guilty of horrible crimes after a fair and just trial, ought to be punished accordingly. The crimes that Jason Strickland has been convicted of, are so horrendous as to stun the most hardened in the criminal justice system. Sentencing is set for December 11 by Superior Court judge Judd Carhart, and one can only hope he imposes the maximum allowable term(s) for these horrendous crimes.

But guilt here doesn’t – and shouldn’t – end with Jason and Holli Strickland. The Commonwealth of Massachusetts, through its officials and personnel within the DSS, also bear enormous responsibility for what happened to this child. More on that aspect of this case, and what perhaps should be done about it, in my next post.