Boston Criminal Attorney Blog

The Massachusetts Supreme Judicial Court (SJC) keeps churning out some interesting decisions, this one on the subject of the privacy, or lack thereof, that inmates and detainees in Massachusetts prisons can expect in their telephone conversations.

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.

The Massachusetts Supreme Judicial Court (SJC) recently announced that, from July 20 2009 forward, judges will generally be required to issue rulings within 30 days of the completion of any civil commitment proceeding sought by the Commonwealth against someone previously convicted of rape or a sexual assault crime. On many occasions, when a person who has been convicted of rape or a crime involving sexual assault is nearing the end of his (or her) criminal prison sentence, a District Attorney’s office may seek a civil commitment of that prisoner, indefinitely, as a “sexually dangerous person (SDP)”. Prosecutors are allowed to do this under a specific statute, M.G..L. Chapter 123A, known among Massachusetts criminal defense lawyers as the “SDP statute.”

When a prosecutor moves for such a civil commitment, the District Attorney’s office seeking the commitment is essentially saying to a judge, “While this convict may have served out his criminal prison sentence, he (or she) remains a sexually dangerous person, and should not be released to the public, but committed civilly at a facility to treat sexually dangerous persons.” That civil commitment facility, by the way is almost always Bridgewater State Hospital. The court issued the ruling in the case of a man who had previously been convicted of child rape and indecent assault and battery on a child. Shortly before he was scheduled for release from prison in 2002, prosecutors moved to have him civilly committed to the Bridgewater facility. Superior Court Judge C. Brian McDonald heard the commonwealth's request in 2004, but did not subsequently enter judgment in the state's favor until 13 months later. In the meantime, the convict was held incarcerated at Bridgewater State Hospital.

The SJC affirmed the lower court's decision, finding that sufficient evidence had been presented to prove that the convict in question, a Joseph Blake, was a "sexually dangerous person" and also that the 13-month delay before the judge issued his decision did not violate Blake's due process rights. However, the court went on to rule that the delay was "unacceptably long." Consequently, the court announced that henceforth judges must make decisions in sexually dangerous person proceedings not later than 30 days after the end of trial, absent "extraordinary circumstances."

The justices said that the new timeline adopted by the court would "accommodate the State's legitimate interests in protecting society from sexual predators, while ensuring that a person held in the treatment center pending the outcome of a civil commitment hearing, (and) who is ultimately determined not to be sexually dangerous, is detained no longer than necessary." Hence, the ruling provides no greater limitation on the state to seek to have a convict held civilly after his (or her) prison term, but speeds up the decision process. As a Massachusetts sex crimes lawyer and Massachusetts criminal defense lawyer, I think this is a fair ruling. It preserve’s the Commonwealth’s legitimate interests in seeking to protect the public from persons who have been deemed to be “sexually dangerous”, but assures that defendants aren’t held unreasonably long while they await a decision.

File this under: “It Doesn’t Just Happen At Abu Ghraib”

The vast majority of Massachusetts Police Departments do a good job of enforcing the laws that the rest of us are required to obey, as well as observing the laws they are required to obey when it comes to arresting and detaining someone. Most don’t abuse persons who have been arrested and are being held in custody pending bail or arraignment. That being said, it’s not impossible that a few police officers or police departments can break the law, or cross ethical and moral lines when it comes to arrest and detention of criminal suspects.

So in that vein, imagine that you are arrested by a police officer, who seems to think his badge gives him the right to be abusive, verbally or physically. Maybe he or she is in a bad mood; maybe he or she doesn’t like the way you look. Imagine that the officer makes this clear to you through his or her attitude, and the next thing you know, you’re arrested for “disturbing the peace” and “resisting arrest”. At the police station, you’re forcefully stripped of your clothes, and thrown into a cell, naked, along with another prisoner who is clothed, and just so happens to be held for intent to murder. The justification that is given for this at the time, and later, is that you ‘were violent with the arresting officers and thought to be a suicide risk’. You are humiliated, frightened, and psychologically abused.

Sound like a movie at the multiplex? It happened not so long ago in the Lawrence Police Department, and the city of Lawrence is now being sued in U.S. District Court as a result. A Lawrence resident, one Juan A. Figueroa, 29, recently became Exhibit A at the center of this story. Figueroa says that on August 13 2006 he was arrested around 2:40 a.m. after he got a $20 parking ticket for parking the wrong way on Amesbury Street in Lawrence while waiting to pick up a cousin from a nightclub. Figueroa claims that when he complained to two police officers at the scene, Alberto Inostroza and Thadeus Czarnecki, about the parking ticket, they became physically abusive toward him, accused him of disturbing the peace, and arrested him.

The suit filed in U.S. District Court in Boston claims that Inostroza slammed Figueroa into the door of the police station and punched him several times in the face, bloodying his nose, according to the eight-page complaint. The complaint also alleges that Czarnecki choked Figueroa when he did not take his ring off for booking. The suit names officers Alberto Inostroza and Thadeus Czarnecki, along with the city of Lawrence as defendants. Figueroa suffered no permanent injuries but has blood on his nose in his mug shot, according to his lawyer, Howard Friedman, of the American Civil Liberties Union of Massachusetts.

The officers then stripped Figueroa and placed him in a cell with a clothed detainee who had been charged with assault with intent to murder, according to the complaint. The officers claim this was necessary because Figueroa was “despondent and “suicidal”, and they feared he would use his clothing to possibly hang himself. According to Friedman, Figueroa was not despondent, and the officers' real goal was to teach him a lesson for allegedly resisting arrest. Friedman said the officers were instead thinking, "We'll punish him … by making him so humiliated and embarrassed that he'll be more respectful to the police." "I've never heard of anywhere else in the country where they would strip a prisoner naked and then place them in a cell with a clothed prisoner to prevent them from attempting suicide," Friedman said. "It would make a person feel embarrassed, humiliated, and vulnerable."

On a relevant and important note, one of the defendants, Inostroza, was previously disciplined by the Lawrence Police Department five times from 2002 to 2007, for misconduct ranging from using harsh and obscene language to insubordination, according to internal affairs records provided by Figueroa’s lawyer. The Lawrence Police Department confirmed that officer Inostroza had been previously disciplined but said he had never physically abused anyone. Figueroa’s lawyer Friedman said the two misdemeanor charges against Figueroa for disorderly conduct and resisting arrest were later dismissed.

I’ll be watching this case closely. Hopefully, a lot of people will.

Here’s a sobering thought: A shocking one in 24 Massachusetts adults were either in jail or under probation at the end of 2007, according to a study released earlier this week by the respected Pew Center on the States. The report, entitled “One in 31: The Long Reach of American Corrections,” analyzed prison populations at the federal, state and county level. The study ranks Massachusetts as being fifth in the nation when measuring the number of adults that are either incarcerated (in both state and federal prisons in Massachusetts), or under probation or parole. The cost to Massachusetts taxpayers: A stunning $1.25 billion (yes, that with a “b”.)

“In any year, spending $1.25 billion dollars on corrections is stunning. In a fiscal crisis, this kind of spending is unacceptably foolish. If finances is what finally moves the state to revamp its correctional policies, so be it,” said Leslie Walker, executive director of Massachusetts Correctional Legal Services. But while Massachusetts ranks fifth overall, we rank even higher when measuring parolees and probationers living in the community, vs. incarcerated in jail or prison. On that score, Massachusetts had the third highest rate of probation supervision, with 1 in 28 adults or 179,854 people answering to parole and probation officers at both the state and federal level.

But what to do about this overall problem? According to this study, parole is a more cost-effective way of monitoring offenders, reporting that it costs $130.16 to incarcerate an adult for one day. That same figure pays for 18 days of parole supervision in the community, the report said. The Pew Center said that for every dollar Massachusetts spent on prisons in 2008, it spent four cents on parole. The Pew report affirms state Department of Correction figures that indicate an exploding prison population. As proof, last year, the state began installing bunk beds in single cells at the maximum security Souza-Baranowski Correctional Center in Shirley to address system wide overcrowding.

By comparison, in 1982, one in 127 adults were involved in the Bay State correction system, the Pew report found. If we wish to continue to incarcerate people at this rate, we will have little choice but to build more prisons in Massachusetts, and fast.

Observers of recent developments in Massachusetts criminal law couldn’t avoid the news of one Che Blake Sosa, a particularly vicious excuse of a human being currently housed as the state’s esteemed guest at MCI-Cedar Junction prison in Walpole, Massachusetts. In February 2007, Sosa made news when he concealed a knife or "shiv" in his prison jumpsuit, made out of carved plexiglas, brought it into court, and in front of an entire courtroom, stabbed the very – and only – man in that courtroom willing to defend him – his own lawyer. Since then, Sosa has never been taken anywhere without at least a half-dozen armed guards surrounding him, shackled hand and foot. He seemed to relish the attention.

Now he’s got some more attention to be happy about: It seems Sosa was able to persuade a registered nurse who was contracted by the state to work at MCI-Cedar Junction, to assist him in a plot to break out of the maximum-security prison. Deborah Girouard, 44, confessed to police and prosecutors this past Wednesday that she had developed a “relationship” with Sosa, and had agreed to smuggle saw blades, a disguise, and other weapons into the prisoner’s custody to facilitate his escape. According to police investigators, Girouard had gone so far as to obtain and store all of the weapons and disguises in her locker at the prison, but backed out of the plan at the last minute, when Sosa reportedly threatened to kill her if she didn’t follow through with the scheme.

This news has more than a few people asking: How could such an irresponsible, arguably unstable person such as Girouard, end up being granted access to some of the most dangerous criminals in Massachusetts? Several observers have begun to question the process of how independent contractors like Girouard (she was not a state employee, but contracted by the state to work inside the prison as a nurse,) come to be placed inside some of the most sensitive security situations possible, such as inside a maximum security prison. Had Sosa’s plan been carried out and he successfully escaped, several people – prison personnel as well as residents of surrounding communities – would likely have been killed or seriously injured.

So far, no comment has been issued by state officials, and an inquiry will likely follow. Hopefully, adequate changes will be made, and soon, to a prison contractor hiring system that has obvious flaws within it. Every person charged with a crime is entitled to a vigorous defense, no matter how violent the offense he or she is accused of. But if and once convicted, the public and prison personnel must be protected from such individuals.

Massachusetts Department of Correction officials should act swiftly to assure that screening and hiring practices for such security-sensitive contractor positions are reviewed and if necessary corrected.