Boston Criminal Attorney Blog

Most people who were asked what “Double Jeopardy” is, would think it has something to do with the TV game show. Not exactly. OK - to be fair, you’d probably need to have taken at least one college-level course in criminal justice or pre-law, to understand the answer.

What the answer has to do with, is the U.S. Constitution’s prohibition on a person being tried twice or punished twice for the same crime. This clause in the Constitution is known as the “Double Jeopardy Clause,” which is found in the Fifth Amendment to the Constitution. In other words, you can’t be charged with a crime, acquitted or convicted, then tried again for the exact same crime. The framers of our Constitution intended for this protection, against potentially overzealous government prosecutors.

The Massachusetts Supreme Judicial Court (SJC) released a decision yesterday, clarifying this principle. In case you think that cases like this always involve murder or such, they don’t. In this case, the crime involved possession of an unlicensed gun; importantly, not use of the gun, just possession of it. Not exactly shoplifting, but not the worst crime under the sun, either - not compared to what I’ve seen, as a Dedham, Massachusetts criminal defense lawyer. In the case the SJC reviewed, a man had been arrested for illegal possession of a firearm, a Massachusetts gun & firearms offense. The police charged him with both illegal possession of a loaded gun, and illegal possession of ammunition – even though the only bullets he was in possession of were in the gun itself. He wasn’t, for example, carrying an extra supply of bullets. Prosecutors had argued that since more than one bullet was found in the gun, a jury could “reasonably” conclude that some of the bullets could satisfy the charge of carrying an unlicensed, loaded gun and the other bullets could be “used” to reach the additional ammunition charge.

That reasoning missed the bulls-eye, according to the SJC. The court ruled yesterday that people arrested for Massachusetts gun offenses cannot be tried for both unlicensed possession of a loaded gun and illegal possession of ammunition, ruling that these dual charges violate the constitutional prohibition against double jeopardy. Quoting from the court’s decision, which was opinion written by Justice Francis X. Spina, “The Commonwealth has cited no authority to support this proposition, and we decline to draw such a distinction where, as here, all of the ammunition was loaded in the revolver. “We conclude that the defendant’s convictions of unlawful possession of ammunition and unlawful possession of a loaded firearm are duplicative, and his separate sentences for each crime violated the double jeopardy clause because he was punished twice for possession of the same ammunition.’’

This decision isn’t important because a great deal of people are running around with unlicensed firearms (though, obviously, there are those who do.) The ruling’s importance stems from the reinforcement of the principle that the government cannot use “creative” methods to skirt the constitutional ban on double jeopardy.

Last Friday, a Hampden County Superior Court jury returned a verdict that a lot of people on either side of the gun control debate had been watching closely.

Called informally the “Uzi Death Case,” the former Chief of the Pelham, Massachusetts Police Department, Edward Fleury, was charged with involuntary manslaughter and multiple counts of Massachusetts firearms violations in the October 2008 death of an 8 year-old boy, Christopher Bizilj of Ashford, Connecticut. The young boy was attending a gun fair that was held at the Westfield Sportsman’s Club in Westfield, Massachusetts. While the gun fair was held on the grounds of the Westfield Sportsman’s Club, the event was organized by a company that Edward Fleury owned and operated. While attending the fair with his father, Dr. Charles Bizilj, the young boy lost control of an Uzi submachine gun he was holding, and shot himself in the head in front of shocked onlookers. Those onlookers included the boy’s father and his brother. Prosecutors alleged that Fleury was criminally reckless by allowing children to illegally shoot loaded machine guns, while being “supervised” by a firing range “officer” who was 15 years old at the time, and who possessed neither proper licensing nor firearms training.

Sounds pretty bad, but Fleury’s defense lawyer had some powerful facts to argue to this jury: 1) Principally, the boy’s father, (Dr. Charles Bizilj) had signed a waiver at the fair, acknowledging the risks (including death) involved in letting his son shoot a loaded gun; and 2) The fact that the event had been held for several years previous to this accident, without any problems. Legally, what these two facts did, was seriously damage (if not altogether destroy) the Hampden County District Attorney’s argument that Fleury was “criminally reckless”, a core of the Commonwealth’s charges against him. These facts also undercut prosecutors’ counts of illegally furnishing a machine gun to a minor. Had the above two facts not been present, Fleury may well have been convicted on these charges. If he were, he would have faced combined sentences of up to 50 years in state prison.

Even with these facts present, this case could have gone either way. One principal reason for this, was emotional rather than strictly legal: Young Bizilj’s tragic and violent death was captured on video tape - by his own father, who was recording his son’s turn to fire the gun that killed him. Prosecutors played the 15-second video tape to the jury. It was reported to be (naturally) horrific: The Uzi submachine gun that the boy was firing, suddenly tilted upward and then backward toward the boy, a bullet piercing his skull. To spare the jury and avoid inflammatory footage, the video was frozen at the precise instant when the bullet pierced the boy’s head, but with him still standing yet mortally wounded. The jury did not see his body fall. Before jurors viewed the footage, the boy’s Charles Bizilj, testified that immediately after the gun fired he rushed to his son’s side, discovering that “a large portion of his cranium was missing.’’

Fleury cried at the jury’s verdicts, saying that he regretted holding the machine gun event and vowing that he will never do it again. He said that his arrest and the trial were devastating and that he would "rather be dropped into hell than go through this again.’’ >“I want to express my heartfelt sympathy to the Bizilj family,’’ Fleury told reporters. “It was always meant to be an educational event for people, and it’s unfortunate this terrible accident happened.’’

This is the kind of terrible thing that can happen to people facing Massachusetts firearms charges: Most of these defendants are not violent criminals, but otherwise law-abiding people who got caught in terrible circumstances surrounding the use or ownership of guns and other firearms. Exhibit A on that point? Edward Fleury was the former Chief of Police in the town of Pelham.

If you or someone you know faces charges involving Massachusetts firearms violations, contact us. We are very expereinced with these types of cases, and we can very effectively defend you, securing the best legal outcome possible. To use slang, don't "mess around" with these types of charges: These cases can become extremely complicated. Don’t take chances with an attorney who isn’t adequately experienced in this area of law. We know what we’re doing. And we’ll stand in front of you until the best legal outcome is achieved.

In my previous post on this subject, I discussed the recent Supreme Judicial Court ruling that persons found to be in illegal possession of a firearm in Massachusetts can no longer be held in jail prior to trial, based on the grounds that such persons present a danger to the public. This ruling has caused a lot of controversy in the legal community, and justifiably so. Very predictably, the opinions on the ruling run straight down the liberal-conservative divide: The “get tough on crime” conservatives feel (with a fair amount of good reasons) that anyone who illegally carries a gun is almost certain to be a violent criminal (commonly gang members,) and that violent criminals should locked up so that the rest of us are made more safe. The liberal bloc, often characterized as “soft on crime,” feel that law enforcement and the courts shouldn't’ wield this kind of power to lock someone up so easily without that person first committing any violent crime. (Liberals are also often characterized as advocating that criminals should be rehabilitated, not incarcerated. Depending on the nature of the crime(s) involved, this is often a very valid and sound argument.)

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

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

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

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

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

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

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

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

In a classic liberal-conservative split, a recent Massachusetts Supreme Judicial Court (SJC) ruling has held that persons who are found to be in illegal possession of a gun or firearm cannot be held in jail pending trial. The ruling is important because many such defendants have been held pending trial, under a state law passed in the 1990’s that was designed to curb domestic (i.e., family) violence. That law, known as the "Dangerousness Statute" was initially enacted as a way to cut down on domestic violence by giving prosecutors and judges the power to hold someone who had only a minor criminal record, but was considered a threat to a spouse or significant other.

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

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

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