Boston Criminal Attorney Blog

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.