Boston Criminal Attorney Blog

The twisted saga of the Amy Bishop case became (hopefully) a little clearer today, with the release of a press statement by Congressman William D. Delahunt, who was the Norfolk County District Attorney at the time of the May 1986 incidents surrounding the shooting death of Bishop’s brother, Seth Bishop.

Much has been made in the past week, concerning the fact that Amy Bishop was never charged with a crime in connection with her actions following the shooting death of her brother Seth. Those actions several Massachusetts firearms violations wich included Bishop aiming a loaded shotgun at several people, including two employees at Dave Dinger Ford in Braintree, where she demanded a getaway car and keys. Armed officers from the Braintree Police Department had to tackle Bishop from behind to wrest the shotgun from her, yet she was never arrested, or charged with any Massachusetts crimes. Twenty-four years later (with some disturbing and highly suspicious criminal conduct in between,) Bishop shot five people on the campus of the University of Alabama, killing three and wounding two. The central question on everyone’s lips for the past week: How could Bishop have been released? How is it she was never even charged with a crime? The response from all the various law enforcement and prosecutorial parties involved has, so far, largely been finger-pointing.

The question is, whose finger is pointing in the right direction? The parties involved here were: 1) The Braintree Police Department. They had primary law enforcement and investigative jurisdiction, as the crimes occurred in the town of Braintree. 2) The Massachusetts State Police. They were brought in because a killing and possible murder may have been involved, and when such an event occurs, it is standard procedure that State Police investigators are called in. (Actually, a state Police unit is already assigned to and housed within each District Attorney’s office.) 3) The Norfolk District Attorney’s Office. They would have been responsible for prosecuting any crimes that police investigators referred to them. Let’s review who should have done what:

As a Norfolk County criminal defense lawyer who has practiced for over 15 years, I can advise my readers that it is the local (city or town) police department that is tasked with the primary responsibility of investigating any reported or suspected crimes, and of fully informing the office of the District Attorney regarding the results of that investigation. From the information that is available to me so far, the State Trooper who investigated the death of Seth Bishop, a Brian Howe, had concluded that Amy Bishop shot and killed her brother by accident. But from what has been discovered to date, Braintree police never alerted Howe or any prosecutors in Delahunt’s office of the fact that Amy Bishop had then fled the house with a loaded shotgun, and that she later tried to steal a getaway car from two men at gunpoint, inside Dave Dinger Ford, nor that she was arrested after that brief armed standoff with police. How this information could not have been communicated to then-District attorney Delahunt, is, to quote current Norfolk District Attorney William Keating, “inexplicable.”

But to blame Delahunt, at this stage in this investigation, is premature. District Attorneys’ offices do not investigate crimes. Local and state police do. A District Attoneys' office also does not, initially, preserve evidence. The police do. Neither do DA's offices – initially, that is, immediately following the commission of a crime – interview witnesses. Police do. District Attorneys don’t have the power to make direct arrests under typical circumstances – police do. DA's offices don’t seek criminal complaints in the District Courts – they prosecute the criminal complaints in those courts, once those complaints are first filed by police departments. DA’s offices can also, if provided with enough evidence developed by police investigators, present that evidence to a grand jury, to seek an indictment. In sum, District Attorneys' offices don't go out looking for crimes, or, very initially, investigate them. They prosecute what police departments place in front of them.

And here, it appears - so far, anyway - that the Braintree Police Department, for reasons not yet fully explained or fully known, did not provide either the State Police or the Norfolk District Attorney’s office with the full scope of what Amy Bishop had done, immediately following the shooting death of her brother. It was the Braintree Police Department who advised the state police investigator that Seth Bishop’s death was accidental. Those statements came from the highest level of the Department: Former Police Chief John Polio, who had publicly commented, "Every indication at this point in time leads us to believe that it was an accidental shooting.’“ That information was corroborated by the Massachusetts state medical examiner at the time, who ruled the death was due to an ‘accidental discharge from a shotgun.’

• With the command staff of the Braintree Police Department telling Delahunt that Seth Bishop’s death was accidental, and with them not telling him of Amy Bishop’s criminal acts immediately after her brother’s shooting;
• With the Braintree Police informing, and importantly not informing, the state Police investigator of the same things;
• With all the reports uniformly saying that Seth Bishop’s death was an accident, and with no other information to lead him to believe that any crime had been committed by Amy Bishop,

- what else, legally, was Delahunt to do? Without this critical information that we now know to be true, and that presently appears for some unexplained reason was not transmitted to both the State Police and Delahunt’s office by Braintree Police, on a purely legal and prosecutorial level, there wasn’t much if anything that the-then District Attorney could do. It was the Braintree Police Department that had primary investigative jurisdiction over this incident. Everything that they did or didn’t do following that shooting incident, formed the basis of the actions and inactions that followed in this sorry matter.

More information will be forthcoming in the days ahead. Let’s reserve judgment until every sheet possible has been pulled back on this story. If it was the then-District Attorney who failed in some respect here, that will become obvious. As of right now, that doesn’t appear to be the case. Some people might expect a Norfolk County murder defense lawyer to come down hard on a DA’s office (practicing on the opposite side of the legal aisle as I do.) I think the truth is more important. Some people (primarily within law enforcement, understandably,) will see a rush to judgment in my opinion that the core of the communications failures that apparently occurred in this incident, seem to lay within the Braintree Police Department. I am commenting on the information available to date. If more information develops to counter what is presently available, then a reassessment will be needed.

An investigation is now being headed by current Norfolk District Attorney William Keating, which I hope will be thorough. But as of today’s date, I’d say the finger-pointing, should point away from Bill Delahunt.

The recent media coverage about the death of Nancy Kerrigan’s father, which has now been ruled a homicide by the Massachusetts Medical Examiner’s office, illustrates how fast and furious an argument can escalate into something far more dire: Potentially a murder charge. Kerrigan, of course, is the 1994 Olympic figure skater who was the target of a physical attack by associates of her rival, Tonya Harding.

Kerrigan’s brother, Mark Kerrigan, 45, was arrested on January 24 on a charge of assault and battery after Stoneham police responded to a domestic disturbance call from the Kerrigan home. On arriving, the police reportedly found Kerrigan’s father, Daniel Kerrigan, lying unconscious on the kitchen floor at the house at about 1:30 AM. He later died at the hospital he was taken to. The medical examiner’s office determined that Daniel Kerrigan suffered from high blood pressure and clogged arteries, but that the cause of death was “cardiac dysrhythmia” — which is an interruption of the normal heart beat — after a “physical altercation with neck compression” that fractured the cartilage in his larynx. In other words, that Mark Kerrigan precipitated the events that led to the elder Kerrigan’s death, through the act of putting his hands around his father’s neck and attempting to strangle him.

Officers said Mark Kerrigan appeared intoxicated and was found in the basement trying to hide a bottle of Scotch. Police reported that the younger Kerrigan was combative, that they had to use pepper spray to subdue him, and had to forcibly carry him out of the basement. The report filed by the arresting officers says, “(Mark Kerrigan) said he wanted to use the phone and his father would not let him. He said he struggled with his father and put his hands around his father’s neck and his father fell to the floor.” The younger Kerrigan reportedly has a long history of domestic violence, substance abuse and mental illness. Last year, he was released from prison after serving more than two years for assaulting his wife and threatening her with a knife. He was staying in his parents’ home, even though they had sued him recently for what they said was over $100,000 in unpaid debts. He was reportedly taking medication for post-traumatic stress syndrome, and is presently being held under psychiatric evaluation. Nancy Kerrigan, joined by her brother Michael and their mother Brenda, have criticized the coroner’s finding as “premature and inaccurate,” insisting that her brother is not to blame for the elder Kerrigan’s death.

Legally, what could Mark Kerrigan be charged with? Not likely murder. In Massachusetts, a charge of murder in the first degree must be supported by evidence of premeditation or extreme cruelty or atrocity. Neither seems to be indicated by the evidence here. Much more possible, is a charge of involuntary manslaughter or voluntary manslaughter. The differences? If you click on either of these two links, my web site makes it all pretty clear, but I’ll sum it up very briefly again, here:

Voluntary Manslaughter:

The definition by Massachusetts case law: "The unlawful killing of another, intentionally caused from a sudden transport of passion or heat of blood: (1) upon a reasonable provocation and without malice or upon sudden combat; or (2) from the excessive use of force in self-defense." Voluntary manslaughter involves a killing without malice, distinguishing the crime from murder. Under voluntary manslaughter, the defendant did intend to kill the victim or inflict serious bodily harm, but due to the existence of some mitigating circumstance(s), the law infers that malice was not present. This can apply when the killing occurs out of passion or the heat of the moment that results from a "reasonable provocation" or a spontaneous fight. It applies when “adequate provocation” causes the defendant, in essence, to lose the self-control that would be expected of an ordinary, reasonable person. Exactly what does and doesn’t constitute "adequate provocation", is an objective test of whether an ordinary person would have been provoked by the situation in question. It’s possible that an aggressive prosecutor might opt for this charge here, but, as a Norfolk County criminal defense lawyer, I don’t see this charge as applying to the police report filed in this arrest.
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Involuntary Manslaughter: "(1) an unintentional killing occasioned by an act which constitutes such a disregard of the probable harmful consequences to another as to be wanton or reckless; or (2) an unintentional killing resulting from a battery." This is the much more likely charge that will result in this case. (Particularly given the victim’s family’s insistence that Mark Kerrigan had no intent to cause death or serious bodily harm to the victim.)

This sad family story should send a message to anyone inclined to think that a simple fight will stay that way - a few punches thrown, and no big deal. As a Boston asault and battery lawyer, I have seen more cases than I care to remember, where either one person thinks he/she has the right to physically attack another, or two people agree to engage in mutual combat – only to have it end in the serious injury or death of one or both. All it takes is a fractured larynx, a punch landing on the head, all fall backward splitting the skull, a blow to the chest causing sudden heart failure, and it’s over. If not “over” as in death, definitely “over” as to the rest of that person’s prospects in life. I’ve seen more assault and battery cases escalate into far more grievous legal charges, such as manslaughter or even murder.

Translation: Unless in self-defense, keep your hands to yourself.