Boston Criminal Attorney Blog

First, let me say that there hasn’t been a post here in a while, and I’m sorry about that. December saw me distracted with an extremely busy combination of court appearances, trials, and a vacation beginning December 20 – all of which caused me to be extremely busy. However, there was an additional matter requiring my time and attention, that I’d like to let my clients and readers know about, now that that work is almost completed.

That additional matter is the redesign and reorganization of my present one website (click on the “Website” tab above if you haven’t visited there yet,) into a stand-alone website dedicated entirely to Massachusetts criminal law (presently, the site includes both criminal law and personal injury.) The new website will have all the same valuable information as the present one, with added features and a lot more valuable content that can assist you with a wide variety of questions about Massachusetts criminal law.

The new web site should be up and live on the internet by Wednesday, January 18 at the latest, so please, check it out and call me if my firm can be of help to you!

Thank you again to all my loyal readers of this blog, and to all my valued clients!

The U.S. Department of Homeland Security (DHS,) in its understandable efforts to rid our cities and communities of immigrants who have committed violent crimes, has developed an interactive cross-referencing program with local police and law enforcement departments, known as the Secure Communities Program. The program is administered and enforced by a division of DHS, which is U.S. Immigration and Customs Enforcement (ICE.) This collaborative effort with local police departments requires that fingerprints obtained from arrests made by local police be automatically cross-referenced with federal immigration databases at ICE. The objective is to identify immigrants with serious and violent criminal records, and use that criminal record as the basis for deporting that person. (While deportation of an immigrant following conviction of a crime is not always done, federal immigration laws do allow for deportation if an immigrant has been convicted of a crime. The Secure Communities Program builds upon that legal foundation.)

On the surface, this approach sounds like common sense. I believe we should deport immigrants who have come here promising to obey our laws, only to commit violent crimes and infect our communities with fear and all the related consequences that violent crime brings to communities. Except that as with so many government programs, good intentions and common sense often get lost in the process of bureaucratic program enforcement. Exhibit A is ICE’s Secure Communities Program: Under the present program structure, an immigrant who is arrested and has a record of any criminal convictions at all – minor or major, nonviolent or violent – is subject to immediate deportation by DHS. Translation: If an immigrant were arrested for a traffic violation, and a fingerprint check showed that he or she was previously convicted of passing a bad check, that person would be deported. This enforcement scheme contradicts and confuses the laudable objective of the Secure Communities program, which is to rid our communities of immigrants who have been convicted of violent crimes.

For this reason, a considerable number of cities and towns across the U.S. and in Massachusetts have had second thoughts about participating in the Secure Communities Program. The City of Boston has been one of those municipalities. The original idea of the DHS/ICE program is a good one, and despite calls for the program’s dismantling, the original goal should not be abandoned. Instead, the program should be re-written to develop specific legal criteria, listing precisely what types of prior offenses constitute a “violent crime.” By no means do I suggest that the list be unnecessarily short, or that the list comprise only extremely violent crimes – only that hearings be held and a consensus reached as to what crimes are to be defined within the Program as meeting the definition of “violent” crimes, and hence subjecting the person arrested to deportation by DHS & ICE. Such a list of crimes, obviously, would include Massachusetts rape, Massachusetts sexual assault, Massachusetts kidnapping, Massachusetts assault and battery and, Massachusetts gun and firearms violations and of course, Massachusetts attempted murder and murder. Further, the final list would of necessity include more violent offenses than listed immediately above.

But the point is to spare immigrants who have a prior criminal record, but not for any violent crimes, unnecessary deportation. As a Boston/Dedham Massachusetts criminal defense lawyer who has seen a lot of violent crime, I think that narrowing the list of deportable offenses under the Secure Communities Program to violent crimes only, will achieve the Program’s sensible objectives, will make us all safer in the process, and will still treat nonviolent immigrants in a rational manner.

In my previous post, I talked about the legal mechanics of how someone might be falsely accused in court of a crime. If you’ve been accused falsely of a crime, such as Massachusetts assault and battery, what are the steps you should take? Pay attention to the following:

1) Do not take the matter lightly, no matter how unimportant the charge may seem to you. Too many people think that unless the accusation is extremely serious, such as a Massachusetts sex offense, they needn’t take the matter seriously. Or they think, “I’m innocent, and the judge or jury will see this.” Not true. If you are charged and found guilty of the least serious of Massachusetts crimes, you will still have a criminal record, all your life. The record is open, public information, and will follow you everywhere. That is not good. Period.

2) Do not skimp on either the qualifications of the attorney you hire, and do not skimp on the expense of the attorney’s fee. Don’t go “bargain-hunting” for your defense attorney. Find an experienced and successful Massachusetts criminal defense attorney – and unless the fee is clearly unreasonable (e.g., 4 or 5 times what other lawyers charge,) then find a way to pay for it. Many criminal offenses carry a high risk of conviction, and trying to “save money” on a matter as important as this, is not a smart move. Make sure that your choice of defense attorney has handled – successfully – at least dozens of the type of case that you are facing. Too many people in such situations think that if they hire an attorney who handles these types of criminal cases only “now and again,” and hence charges a low fee, they’ll be alright. Thinking this way is a big mistake, and if you make either of these mistakes, you will probably find yourself in a much worse legal situation than you started out with. Ask the attorney for references. Ask anything that comes into your mind.

3) Document all the evidence that you can. Write down all the details that you possibly can – as soon as possible after the event. Record these details, no matter how small you may think they are. Your attorney will decide later what information is and isn’t needed. Preserve any physical evidence that you think your attorney might be interested in.

4) Make a list of all possible witnesses to the underlying event, detailing the names and contact information of any and all persons that could be witnesses. Write these names down on either index cards, or type them into an appropriate file on your computer and make backup copies. Aside from names and contact information, you should also record a brief background on any witnesses, what information he or she might be able to testify to – and why you feel that witness’ testimony would help you. Your attorney will decide what to do with this information.

5) If you are called or questioned by police, do not say anything to them until you have been retained by an attorney, and unless that attorney is physically present with you at the time of questioning. If you have not yet been arrested by police, you are usually free to leave any place where you are being questioned. The exception to this is if you are being temporarily detained by police. If you feel unsure what the police are doing, then ask them directly whether or not you are being either arrested or detained. In either circumstance, SAY NOTHING until your attorney is present. Even if you are arrested, you are not obligated to tell police anything other than your name, address and date of birth. Offering up additional information beyond that, will not help you. Leave it to your lawyer to answer or not answer any further questions.

I hope this outline has helped somewhat. If you need any further information about this subject, contact our office for a free consultation. We’ve been at this a long time.

One of the most upsetting things that can happen to anyone is to be falsely accused of a crime that you did not commit. While certainly police departments can sometimes unintentionally conclude that a person has committed a crime that in fact he or she did not commit, most of the time that false accusations are made, they are made by a party to a dispute, or within the context of a Massachusetts domestic violence case.

While it would be comforting to think that the criminal justice system and the courts will inevitably “see” that an innocent person is, in fact, truly innocent, and that it will exonerate anyone falsely accused, thinking this way would be extremely unwise. As a Dedham, Massachusetts criminal defense attorney, I can assure you: If you have been falsely accused of a crime, you must marshal all the evidence, assets, and legal resources that you have, to defend yourself vigorously against any charges.

The seriousness of any criminal charge will, of course, depend on the particular crime that a person is accused of, and the accompanying criminal penalties. As a Norfolk County Massachusetts criminal defense lawyer, I’ve defended clients that have been wrongfully accused of all kinds of offenses, from Massachusetts rape and sexual assault charges, to accusations of Massachusetts assault and battery, to Massachusetts kidnapping charges, to Massachusetts OUI./DUI offenses, to Massachusetts gun & firearms offenses. While some offenses are more serious than others, all Massachusetts crimes carry considerable penalties.

How does a person prove his innocence before a judge or jury? Well, first of all, the question of whether or not an accused will be formally charged with committing a crime is not decided by a judge. Surprised? Don’t be. As my website page dealing with Massachusetts Clerk-Magistrate’s Hearings (or Massachusetts Show-Cause Hearings,) discusses, often a party will accuse someone of committing a criminal offense through the mechanism of what is known as an Application for Criminal Complaint. That “party” (usually a police department or another person,) will complete this form and file it with a local Massachusetts District Court. At that point, the Clerk-Magistrate will send the accused a notice that a “Show-Cause Hearing” or “Clerk’s Hearing” has been scheduled to hear evidence in the matter. At this hearing, the Clerk hears evidence from both parties regarding the accusations, and renders a decision as to whether or not the accused should be formally charged with the crime alleged. In the event the Clerk-Magistrate finds probable cause exists, the accused will be formally charged with the crime alleged, and he or she becomes a criminal defendant. The matter is then prosecuted by the District Attorney. My office has successfully defended literally hundreds of these cases.

I’ll discuss what steps you should take in the unfortunate event you are accused of a crime, in Part Two of this post in a couple of days.

Springfield, Massachusetts has been suffering recently from a spike in violent crime; most of it gang and drug-related. That’s not an easy environment to live in, or work in. This is especially so for police officers that are assigned to violent crime units. These units can be either plainclothes or uniformed, and either way it is difficult and often highly dangerous work.

This reality was put on full display last Saturday, April 30, when a prison inmate held at Massachusetts Correctional Institute/Shirley escaped, and headed to Springfield to reportedly avenge the recent, non-fatal shooting of his mother on April 23. No arrests have been made in that shooting. MCI/Shirley is a minimum-security state prison. The convict, Tamik Kirkland, 25 and originally from Springfield, reportedly made his way to a barbershop on State Street, where he shot two men, a barber and a customer. The customer was killed in that shooting, and the barber critically wounded. Police have not yet released the names of either man. After the shooting on State Street, Kirkland allegedly fled to a Cambridge Street residence, where he opened fire on police from the trunk of a car where he was hiding. At a press conference held outside Springfield Police Headquarters late Saturday afternoon, Springfield Police Commissioner William J. Fitchet. Fitchet said that after the State Street shooting, Kirkland fled up Montrose Street on foot. Based on intelligence that police had about Kirkland, they sped to a duplex that they suspected that Kirkland had ties to, and where believed that he would run for assistance. Special police units watched a silver sedan back into the driveway at that location, and saw Kirkland jump into the trunk. As the car tried to exit the driveway, police surrounded it, pulling a female driver from the car. To see a video of that press conference, click here.

Fitchet said that before police were able to pull the female from the car, “The trunk had been popped the suspect (emerged from the trunk) and started shooting It happened over a matter of seconds.” A Springfield police officer, Raul Gonzalez, a 15-year veteran of the force, was hit with gunfire in the chest, as was an unnamed Massachusetts State Police trooper. The only reason these officers were not killed or not critically wounded is because each of them was wearing a Kevlar vest. Both officers returned fire on Kirkland, shooting him several times. Kirkland is in serious condition but is reportedly recovering from his wounds. The back-to-back shootings prompted an immediate and massive police response – due to both officers being down and because Kirkland was already being hunted by a fugitive task force.

Immediately after the shooting, police were even more shocked to discover a 6 month-old baby in in the back seat of the vehicle. The infant was unharmed. Police refused to release the driver’s name or her relationship to Kirkland, if any. Since Kirkland was in the trunk and could not have harmed the baby, it is a reasonable assumption that the female driver was known to Kirkland and was voluntarily assisting him in his escape. Translation without elocution: A real dirt bag. Kirkland, prior to his escape from MCI/Shirley, was serving time for Massachusetts gun & firearm offenses and Massachusetts drug charges.

This is all pretty scary stuff, and I wanted to write about it here for one reason: Even though, as a Boston criminal defense attorney I am on the opposite side of the courtroom aisle from police, I know that the work that many of them do is very dangerous, and the work that officers do in gang units, organized crime units and drug units, is extremely admirable. These types of officers are placed in far more dangerous positions than the average patrol officer in most police departments, and I want to say that I admire them for their work. While, as a Massachusetts criminal defense lawyer, I utilize every procedure and legal talent I have to provide the best legal defense possible, I nonetheless admire these officers. And one more thing: I’m grateful to them. Because whether I’m on the opposite side of a case with them or not, they make my life, and the lives of the people I care about, safer. So here’s to them.

Gov. Deval Patrick likes to fashion himself as a typical “man-of-the people” Democrat. Except that he’s anything but that, and knows very little about the everyday workings of the “average person” on the street. That should come as no surprise to anyone, given that he’s a multimillionaire who made his money in the corporate world, but his latest legislative proposal concerning legal practice only underscores his cluelessness about real world economics, and the way state government really, actually works.

Patrick’s latest proposal revolves around how indigent criminal defendants are provided legal counsel in Massachusetts. As anyone who’s ever heard of the Miranda Rights knows that if a person is charged with a crime in any state in the United States, and cannot afford an attorney, one will be provided for him or her free of charge. Different states fulfill this federal requirement in different ways. In Massachusetts, for decades now, defense lawyers for indigent criminal defendants have been provided almost completely by a network of private attorneys, who are contracted with the state to provide these services. The agency that administers this program is called the Massachusetts Committee for Public Counsel Services (“CPCS”,) and operates under the Massachusetts Judicial Branch.

These attorneys, known as “Bar Advocates”, must first complete appropriate CPCS training and certification requirements before they can become eligible to represent indigent criminal defendants. It is Bar Advocates who defend 90% of indigent defense cases in courtrooms across the state, from Pittsfield to Provincetown; Methuen to Martha’s Vineyard. The other 10% of these cases, the vast minority, are handled by lawyers who are full-time state employees, complete with annual salary and benefits. Private duty Bar advocates are paid anywhere from $50 to $65 per hour, to defend people charged with a variety of crimes, 99% of which can land them in jail for anywhere from a day to life. However, court-appointed attorneys also represent indigent clients in extremely important non-criminal cases, such as representing families that are involved with the Department of Social Services, and people who are at risk of civil commitment and forced medication.

As a Norfolk County criminal defense lawyer, I used to be a Bar Advocate, and I know first-hand how hard these attorneys work and how devoted they are to the clients they are appointed to represent. Given that most criminal defense lawyers charge much more than what Bar Advocates are paid, these services are a bargain for the state. Not so, according to Gov. Patrick. He wants to create a new state bureaucracy (operating under the aegis of the Executive Department, not the Judiciary as CPCS now does,) staffed with 1,000 full-time lawyers to provide these services – each receiving a full-time salary and benefits. In total, the new agency could employ as many as 1,500 employees.

Not only is this a foolish use of state money, it is the more important issue of the quality of legal services that indigent defendants would receive under such a scheme, which makes the case against the proposal. Indigent criminal defendants would cease to become clients of individual attorneys with whom they have a unique attorney-client relationship and who are dedicated to their defense; they’d become numbers in a bureaucratic nightmare. Have you ever tried to deal with a state agency? If you have any doubts about how such a new agency would operate in the real world – not the high-minded, theoretical one envisioned by Gov. Patrick, but the real, everyday world - think of the Wal-Mart of criminal defense services. Is that what you’d want for yourself or someone you care about, if you were in such a situation? If you lost all your money today, were charged with a crime tomorrow and needed a dedicated defense attorney to defend, is this what you'd want? Supporters of this plan should think about that, long and hard.

This plan should stop before it starts. The Massachusetts Association of Court-Appointed Attorneys plans to fight this proposal vigorously, and I wish them well. Everyone concerned in this debate – principally criminal defendants who cannot afford attorney, as well as taxpayers, will be better served if the idea is dropped now.

More stringent financial screening of defendants claiming indigency, to assure that these services are being provided to people who truly don’t have the money to pay for a private attorney? Absolutely. Demolish the present CPCS/Bar Advocate system and replace it with massive state bureaucracy that will surely deliver inferior legal services to people threatened with imprisonment? No way.

The Supreme Judicial Court ruled this week that foreign nationals, including illegal aliens, must be provided with the opportunity to be in contact with diplomats from their home country when facing criminal charges in Massachusetts. The court ruled that the right is guaranteed by the Vienna Convention, which is an international treaty adopted by the United States in 1969.

More so, the SJC also ruled that foreign nationals who are convicted of a Massachusetts crime will be allowed to seek a new trial if they can satisfy two tests: 1) That they were not informed about this right; and 2) That the lack of this information played a role in their conviction. At least one prosecutor reacted to the decision by saying that it has the potential to unleash a flood of costly litigation. Essex County District Attorney Jonathan W. Blodgett commented that “There is no limit to this, we will be flooded with motions for a new trial.’’ Blodgett asserted that even though the Vienna Convention is a treaty between sovereign nations, the SJC has made a foreign treaty part of the fabric of individual rights in Massachusetts. Blodgett plans to file legislation asking the Massachusetts Legislature to reverse this decision. On the opposing side, immigration lawyers and criminal defense lawyers say the court’s ruling merely reinforces rules that have already been on the books in Massachusetts for many years.

The unanimous 7-to-0 ruling noted that even though the United States had ratified the Vienna Convention in 1969, the International Court of Justice in The Hague ruled in 2009 that the United States had not complied with the Convention’s rules on diplomatic contact when dealing with Mexican nationals. Justice Robert Cordy wrote that Massachusetts will now take steps to bring the state into compliance with that treaty: “In order to enable the full effect to be given to [the Vienna Convention], we conclude that the notifications it requires must be incorporated into the protocols of the state and local law enforcement agencies of Massachusetts.’’

As a Dedham, Massachusetts criminal defense lawyer, I can assure my readers that many of the criminal defendants who appear before the District Courts and the Superior Courts of the Commonwealth, are foreign nationals -- whether here legally or not. Therefore, this decision will indeed have a very large impact on police and prosecutorial actions in the future.

In my previous post on this subject, I discussed how the U.S. Supreme Court is currently weighing the constitutionality of a statute passed by the state of California in 2005, to limit the sale of graphically violent, interactive video games to minors under the age of 18.

Once again, the First Amendment is front and center here. This Amendment to our constitution – literally, the first Amendment made to it, allows us all to speak openly against the government, a fundamental right that many nations do not allow their citizenry. There are forms of speech that are not protected by the First Amendment, such as obscenity. Other forms of such “unprotected speech” include speech which creates a “clear and present danger” of imminent illegal action; speech which contains narrowly predefined "fighting words"; written or spoken falsities (libel or slander, which can be punished by civil suit); and speech that is restricted because the government can demonstrate a "narrowly tailored" "compelling state interest".

So free speech is not absolute, but in my view as a Boston criminal defense lawyer, the meaning of the First Amendment has been distorted in recent years to allow for all manner of violence and savagery to be paraded throughout our nation – under the aegis of “free speech.” The result has been a “quicksand effect”, dragging down a nation that was once admired for its morality and decency, to a country infected with violence, moral perversity and the cultural degradation that accompanies such permissive thinking.

Too often, the First Amendment has been used as the constitutional basis to allow for the most destructive, offensive and dangerous forms of “speech” imaginable. You see, from its original intent of protecting the public’s right to speak out against government officials, the First Amendment has been judicially expanded over recent decades, to encompass what is now known as “commercial free speech” – and it is this concept (commercial free speech) that is being used presently to prevent the state of California from prohibiting the sale of violent video games to minors. The argument advanced by business organizations like the video game industry, is that their product is “commercial free speech” and thus that the government cannot abridge their right of “free speech” by preventing the sale of its product to underage minors.

That is an argument as twisted as the products that these companies manufacture. If these manufacturers wanted to market a game that criticized the government or government officials in some manner, then I would fully support its right of “free speech” in that manner. But the First Amendment should not be used as an excuse to allow anyone at all to manufacture the most dangerous, pernicious, and violent of products imaginable – products that interactively entice and reward the player for committing the most barbaric of violence - all under the aegis of “free speech.” Not when violent crime committed by youths is rising exponentially. Not when scientific, medical evidence exists to prove that exposure to such violence detrimentally harms underage minors. Not when sociological evidence demonstrates that these games encourage “copycat behavior” in the real world. Not when our culture has descended from a nation that once prided itself on moral values and civic decency, into one where the most vile of acts are witnessed all around us every day.

Need further evidence of these effects on our youth? Look no further than the October 2009 home invasion and murders in New Hampshire: 18-year-old Steven Spader, the alleged brains behind a nightmarish plot to burglarize a random New Hampshire home and kill its occupants “for fun”, has stated that he frequently played such violent video games. One of Spader's co-defendants testified that when Spader was stabbing to death the 42 year-old woman he murdered, Kimberly Cates, he "was ecstatic"; this co-defendant testified that when the woman was still gasping for breath, he sliced open her throat, and when he was finished, he jumped around the room, saying he felt like he was more powerful than he ever had before. Spader and co-defendant Christopher Gribble wielded a machete and knife in the pre-dawn attacks on Oct. 4, 2009, slashing 42-year-old Kimberly Cates to death and seriously injuring her 11-year-old daughter, Jaimie, who survived the attack by feigning her own death while being beaten. Numerous other examples of barbaric behavior in youths fueled by violence in media, abound.

What is wrong with supposedly intelligent, educated minds, which cannot see the direct link between such barbaric video games, and the barbarism that is rising in our communities?

Despite this obvious causal relationship, I feel a majority of the justices on this Supreme Court will once again use the First Amendment, and its noble, original goals, to allow this degradation to spread further throughout this country. I feel it likely that the court will rule in favor of the video game industry’s “free speech” rights, and against the state of California’s laudable efforts to stem the flow of damage being inflicted on our youths, and its efforts to decrease the all-too-often sadistic violence that plagues our cities and towns. It isn’t hard to see the writing on the wall. In oral arguments before the court last month, questions from the bench posed by several justices already show where they are leaning. Some of these questions belie attitudes that are shocking to me, as a practicing attorney.

Some excerpts:

• Justice Anthony Kennedy (considered by many court observers to be a moderate conservative,) acknowledged, when questioning the attorney for the state of California, that there has existed for many years a consensus that the sale of sexually obscene material to underage minors does not enjoy complete First Amendment protection, and that states can regulate the sale of such material to underage minors. He then added, however, “You’re asking us to go into an entirely new area where there is no consensus.”

• Justice Antonin Scalia questioned whether a state could define “deviant” violence, adding, “Some of the Grimm fairy tales are quite grim.”

• Of fairy tales, comic book and video game violence, Justice Ruth Bader Ginsburg asked, “What’s the difference?” Thankfully, the attorney for the state of California answered the important difference lay in the interactive nature of the video game, where the young adult is encouraged to become a violent, barbaric aggressor.

• Yet the most shocking of the Justices comments seemed to come from the court’s newest member, Justice Elena Kagan, who termed the first of such violent video games to be manufactured, Mortal Kombat, as “iconic”, and further claimed that many law clerks know how to play this game. Notes to Justice Kagan: Number One: “Iconic” is a term that has been generally reserved to describe persons, places or things that are admirable, not the opposite. Choose your words carefully. Number Two: Mortal Kombat is a game so violent, that it rewards players who conquer their opponent by ripping out their spine. Is this what we want the developing brains of our young teenagers to be filled with? Would Kagan really hire a law clerk who she knew played these games – and if so, what would that say about her ability to judge character? Does the average person not know what kinds of adults will develop from children who have been exposed to this savagery?

Some hope shone through from questions and comments posed by Chief Justice John Roberts and Justice Stephen Breyer. Roberts read a description of a recent video game (I won’t name it here,) in which a girl begs for mercy before being decapitated and then doused with gasoline. Breyer expressed revulsion about some of these video games, and said that it made “common sense” to keep children from engaging in reward-filled games in which they torture and kill human figures.

Let us all hope and pray that such common sense prevails in the court’s decision in this case, because the decision will either begin the process of this country righting itself morally and culturally, or encourage a process in which we descend down even further into the crevasse of violence, incivility and barbarity. All – of course – under the noble, intellectually highbrow concept of the First Amendment and “free speech.” Let us hope that the Justices on the court will embrace Justice Potter Stewart’s philosophy over "hard-core" pornography, or what is “obscene,” saying, "I shall not today attempt further to define the kinds of material I understand to be embraced . . but I know it when I see it . . . " Hopefully, the Justices on the court today know such violent perversity when they see it, and vote to allow California and other states to prevent the sale of this barbarity to teenage minors.

Unfortunately, I’m not optimistic about the outcome. I hope and pray that I'm wrong.

Each October, the Supreme Court of the United States (SCOTUS, in the legal community,) hears arguments on cases that it has announced earlier in the year, that it will hear. Last month, it heard oral arguments on a California law that sought to ban the sale or rental of violent video games to teenagers under the age of 18. What happens with this decision, which may be announced next June (2011) will impact the moral direction of this country in ways that most people cannot yet even imagine.

As I wrote this post, I considered where I should publish it: Here on my criminal law blog, or on my Boston Accident Lawyer blog. I decided to publish it here, not only because the issues involve criminal law, but for a more important reason: I consider the gradual erosion of decency, dignity and public morality in this country to be a crime. I also consider it a “crime” (symbolically speaking) that we have a Supreme Court that routinely fails – using liberally expanded interpretations of the First Amendment and definitions of “free speech” - to allow state and local governments to enact laws that will stem the rapidly growing spread of violence and barbarism that infects our nation. I say this as a Boston criminal attorney who believes that the court should always intone the First Amendment to safeguard the individual’s right of free speech against government. I do not believe the First Amendment should be misused to allow any and all kinds of speech, no matter how destructive or dangerous, anywhere, on any subject, in any form, at any time. That is not what the First Amendment was intended to protect, and its perversion has produced devastating social and cultural effects in this country.

This current case before the Court is not a standard, run-of-the-mill case about the First Amendment and “free expression.” Nor, despite its facial appearance, is the case really about “commercial free speech.” Don’t let liberal-leaning reporters and writers fool you that this case is about such high-minded, deep-thinking constitutional principles (though, as with all cases before the Court, this case does involve constitutional issues.) This case is about moral integrity, and human integrity. It is about the protection of minors, whose brains under the age of 18 are not fully developed and medically proven to be vulnerable to the suggestive and pernicious effects of violent imagery. It is about the protection of our country from the rapid and virulent infection of violence that plagues seemingly every corner of our society – from gritty urban streets, to bucolic rural towns in New Hampshire. It is about the protection and promotion of dignity and decency – and of the rapid decline of those once so American of values. In essence, this case is about the frighteningly rapid degradation of morals and the escalation of savagery in this country, accelerated under the aegis of “free speech” and “constitutional principles.” Make no mistake: This case will be a barometer of where this country is headed – sinking into an ever-deepening sewer of moral filth and cultural degradation – or rising once again to be the decent, values-laden country that it once was.

The background: In 2005, the California state legislature passed, and Governor Arnold Schwarzenegger signed into law, a ban on the sale or rental of extremely violent video games to minors under the age of 18. The law defined a violent video game as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being,” in a manner that a reasonable person would find appeals to “a deviant or morbid interest” of minors, is “patently offensive” to prevailing standards of what is suitable for minors, and causes the game — as a whole — to lack “serious, artistic, political or scientific value” for minors. Since all that language probably sounds overly-legal to the average person, let me give you an example of the kinds of videos we’re talking about here: In the best-known of these videos (one of the first to be sold) “Grand Theft Auto,” players are rewarded for graphically killing and dismembering as many police officers as possible. In one of the more recent, (I won’t name the title) a girl begs for mercy before being decapitated and doused with gasoline by the player. These sadism-filled, twisted “games” encourage and reward the most barbaric, violent of human impulses. Picture seeing a teenager (usually a boy, though not exclusively,) staring at a TV or computer screen, a facial expression filled with glee and pleasure, as this perversity infects his young brain, and what he perceives to be "desirable."

The law mandated package labeling of video games containing this kind of violence, and provided for civil penalties of up to $1,000 for violations of the statute. The law didn’t outlaw or punish the sale of these twisted displays of truculence and sadism to anyone over the age of 18, only to teenage minors under 18. Sounds reasonable, right?

Not to a federal judge. The law was blocked before it ever even had a chance to go into effect on Jan. 1, 2006. Why? The video game industry, of course, brought suit in federal court in California’s Ninth Circuit Court of Appeals, arguing what were essentially First Amendment “free speech” rights - and it won. The state of California appealed that ruling, urging the U.S. Supreme Court to adopt a new constitutional standard that would allow states to ban the sale or rental of violent video games to teenagers under the age of 18. The case is Schwarzenegger v. Video Software Dealers Association (08-1448).

In its appeal, attorneys for the state of California urged the Court to adopt a constitutional standard created over 40 years ago to allow states to protect minors from the sale of patently obscene materials. Adopting this standard would also allow states to ban the sale or rental of video games containing graphically violent content (content that is described above, and that meets the definitions of the 2005 California statute.) That 40-year-old standard, originated in the Court’s 1968 decision in Ginsberg v. New York, specifically allows states to enact laws banning the sale of obscene materials to minors, if the law represents a reasonable judgment by a state legislature that exposure to such material will harm minors. To date, that 40-year-old standard has only been applied to prohibitions on the sale of sexually explicit, obscene materials to minors – but not yet to violent video games (which, of course, didn’t yet exist 40 years ago.)

When California’s state attorneys made this argument before the Ninth Circuit Court of Appeals, the court refused to apply that standard. Instead, it applied the most rigorous constitutional standard under the law for reviewing laws that curb expression — “strict scrutiny.” (Note: Legally speaking, almost no limitations on free speech pass this standard, which is why the Ninth Circuit judges used it.) According to that court, (believe this, if you can,) there was “no proof” that playing sickeningly violent video games would cause physical or psychological harm to minors. As a practicing attorney, I find this stunning. But sadly, perhaps it shouldn’t be so surprising: The Supreme Court justices only two weeks ago released another decision involving depictions of violent savagery and the First Amendment. In U.S. v. Stevens (08-769) the Court struck down a federal law banning the video depiction of sadistic cruelty to and torture of defenseless animals. These are videos which, if you can believe it, are produced by the sickest of human beings solely for one singular purpose: the “entertainment” of seeing helpless, defenseless animals tortured to death on video. They’re referred to on the street as “crush” videos, as small animals are typically crushed to death by women wearing spiked heels. Wonderful, isn’t it?

And the U.S. Supreme Court – the highest court in this land, the court of last resort to uphold any sense of human decency and morality in this country – struck down that law – a noble attempt by Congress to prevent the viral spread of savagery and banality that is infecting this country. The Justices refused to create any new exception to the “free speech” granted by the First Amendment. This legal reasoning was wrapped, as always of course, in the swaddling cloth of noble and high-minded constitutional precepts of “First Amendment principles of justice.” This should give readers a clear idea where the court is going to rule on California’s appeal to allow that state to protect minors under 18 from the viral spread of such violence.

I’ll discuss what the U.S. Supreme Court justices have had to say about this case so far, in my next post on this subject.

Here’s an interesting case – controversy, actually – that involves a hybrid of criminal law and tort law – specifically, the tort of wrongful death.

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.

I've been traveling out of office for a couple of weeks, and I haven't posted anything for too long - my apologies to my loyal readers. Today, I want to send this brief message: I've been given a lot of good things in this life. I've had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less then we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

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

I’m sure you read and hear of cases every day where judges hand down sentences to criminal defendants. Less frequently reported, are cases of a judge being threatened with some type of harm as the result of the sentences they mete out.

Just such a case occurred recently in Suffolk Superior Court, where a man who was previously sentenced by a West Roxbury District Court judge for an OUI offense, allegedly threatened the judge after she handed down her most recent sentence against him. Peter Hrycenko was charge with intimidation of a Massachusetts judge after he allegedly sent a threatening letter to the judge's home on Dec. 23, 2007. Three days prior to that date, judge Coffey had sentenced Hrycenko to serve one year of a two-year jail sentence for operating after the suspension of his license for a prior OUI conviction.

At issue in this trial, was not so much the letter itself, but the intent behind the letter. The letter, which was introduced into evidence during Hrycenko’s trial that began August 11, recited the following language: “"I am as shocked writing this letter, as you may be receiving it. I've known of your residence for years and as upset as I have been towards you, I have never retaliated against you or your property because it is not who I am. Please take the time to read this as I want you to fully understand the toll your harsh sentences have taken on me and my family." The letter goes on to complain about the sentence Coffey imposed on him in 2007 as well as a previous occasion in 2000. Hrycenko also describes a knifepoint attack "behind your court" and mentions an earlier conviction for rape. According to court documents, Hrycenko was found guilty of aggravated rape and sexual assault of a hitchhiker in 1988.

Suffolk County Assistant District Attorney Joseph M. Ditkoff, along with Assistant District Attorney Stacie M. Moeser, argued that "[T]he defendant's description of rapes and knifepoint attacks combined with assurance that he knew where [Coffey] lived and that he was upset with her was adequate evidence from which [a] judge could infer that the defendant was threatening the judge with harm if she did not accede to his demands," The relevant law, known in legal circles as the “intimidation statute”, M. G.L. Ch. 268, §13B(1)(c)(iii), makes it a crime for anyone to "directly or indirectly, willfully ... intimidate or harass another person who is ... a judge ... with the intent to interfere thereby with a ... criminal proceeding." This crime is a felony, and provides for a penalty of up to 10 years in prison if convicted. Intimidation, whether directed at a witness or a judge, is similar to assault, (and assault is distinct from battery.) Hrycenko’s defense attorney, Daniel Beck, argued his client had no intent to intimidate: "I told the jury that his big mistake was sending the letter to her home, but that it was not done to intimidate her," he said. "It was a pathetic plea for mercy."

A few minutes into the jury’s deliberations, the jury asked Superior Court judge Linda E. Giles to clarify what the term “willful” means, indicating that the issue for the jury was whether or not Hrycenko intended to intimidate judge Coffey. This point illustrates the importance of the issue of “intent”, or, in latin, mens rea, in a specific-intent crime like this: While the effect of Hrycenko’s letter may have been to intimidate this judge, unless the jury could agree that Hrycenko had this specific intent to intimidate, (versus just complaining or airing his feelings,) then a guilty finding is going to be quite difficult.

And difficult it apparently was, because after one day of deliberations, on August 14, Judge Linda E. Giles declared a mistrial after jurors advised her they were helplessly deadlocked. As a Boston criminal defense attorney, I’ve seen juries deadlock on issues like this several times. Undeterred, a spokesman for Suffolk County District Attorney Daniel F. Conley, said the office will retry Hrycenko. A new trial date has yet to be announced.

Like seemingly everyone, I’ve watched this incident take over the media cycle for the past several days, and sweep across the globe (as in the world, not the Boston Globe,) who seem to be doing all they can to ring the racism bell, with frightening speed. I shook my head when I saw Al Sharpton jump in. But when I saw the President of the United States not only address this incident during a nationally televised press conference, but essentially endorse Mr. Gates’ version of these events, I was truly shocked.

As a Boston criminal defense attorney who has seen his share of racially-motivated crimes and offenses, from assault and battery to rape and murder, I’m offended that Henry Gates Jr. dared to blame this incident on racism. “Racism”, by the way, is a vastly overused term, by both the public and the media. In its purest form, “racism” is a virulent, hateful belief system that regards certain categories of people (whether based on ethnic background or national origin,) to be inherently inferior – and undeserving to live or enjoy any of the dignities or freedoms that a “superior” race enjoys. The most notorious examples of this: Hitler’s death camps in World War II; the mass exterminations in Rwanda, Bosnia and Darfur. If this incident occurred as Gates described it – which by all credible accounts it did not – then it would be accurately characterized as “bigotry” or “prejudice”. But most people don’t know or care to know the difference, and the media loves the word racism.

So unrealistically sympathetic has been the overall media reporting of Gates’ version of these events, the vast majority seem dare not even suggest what all the objective facts indicate: That Gates’ overblown and bombastic ego caused him to make accusations against the arresting officer, which have no basis whatsoever in reality.

Led by the major print media in Cambridge’s backyard, the Boston Globe, most print media’s reporting refuses to acknowledge that this officer had not only a right, but a duty to verify Gates’ identity, in calling the Harvard campus police to make sure that Gates was who he claimed to be. And that, in my and many other informed observers’ opinions, is what ticked Gates off – that he wasn’t recognized immediately. That is when he pulled his “Do You Know Who I Am?” attitude. And when the officer offered to leave but was chased outside by Gates, by all credible accounts screaming wildly at the top of his lungs, that is when he was arrested – for disorderly conduct, and not for any reason whatsoever related to his color.

Honorable people like Martin Luther King, Jr., who suffered horrible injustices, gave their lives to true, actual forms of racial hatred and injustice, and to invoke their fight over something so pathetically benign, is shameful. But when you’re a black Harvard professor and you’ve made a fool out of yourself due to your own overblown ego, what better way to get out of it than to scream “Racism!”?

Claims like that ought to be reserved for real instances of racially-motivated hatred. Not overblown exaggerations like this.

Here’s an interesting story about Massachusetts crime, which features (among other Massachusetts communities) a Cape Cod town near and dear to me, and where I own property: Wellfleet, Massachusetts.

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.

As the Boston Globe has reported, recent high-profile accidents in the Boston area caused by elderly drivers, has raised a lot of discussion about the subject of elderly drivers in this state. Seven people were recently injured in Plymouth after a car driven by a 73-year-old woman jumped a curb and ran into a crowd gathered at a war memorial. It was the woman's third accident since turning 70, authorities said. In Danvers, a 93-year-old man recently drove his car into the entrance of a Wal-Mart, injuring six people, after he mistook the gas pedal for the brake. These incidents have caused a lot of people to re-think the idea that elderly drivers have a right to drive ‘just like anybody else.’

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?

As we wind down 2008, here are a few wishes from me:

That my readers will be spared from the violent crime that infects so much of our world, near and far.

That if accused of a crime, my readers will benefit from a system that presumes innocence before guilt, and that provides due process for all.

That lawyers, legislators and judges continue to work together, to improve the delivery of criminal justice to all who seek it.

That the innocent will be exonerated, the guilty punished, and the doubtful reassured.

A happy and healthy New Year to all.