Boston Criminal Attorney Blog

In my previous post on this shocking story, I discussed the horrific details of how the stench of rotting flesh led a Worcester, Massachusetts landlord to discover the apparently murdered body of one of his tenants, 23 year-old Darlene Haynes. His discovery afterward that the once-pregnant victim’s abdomen had been sliced open, the fetus ripped from the womb and stolen, has sent shock waves through the world. News outlets from Britain to Australia have reported this event, and once the murderer(s) and “kidnappers” of this now-born baby are found, charged and tried, the story will only get larger still. So far, only one suspect has been arrested in this case: One Julie A. Corey, a 35year-old woman who was found in a New Hampshire homeless shelter with a newborn baby that authorities believe was ripped from the Massachusetts murder victim’s uterus.

As sickening as this case is, it presents interesting legal questions - at least, from a Massachusetts criminal defense attorney’s perspective I want to address these, initially, here.

• Why has the defendant not been charged with murder? Because while authorities believe that Julie Corey was either involved in this Massachusetts murder or possibly committed the murder herself, they have yet to either secure enough forensic evidence to support a charge of murder, or obtain a confession from Corey. Investigators are now developing that evidence.

• Why has the defendant only been charged with kidnapping? Because at this stage in the investigation, the only thing that police can determine is that Corey did not, as she claimed to several persons, deliver that baby (or any baby) in the past week, or recent past. Hence, because this premature infant could not be hers, and because she can not produce any documentation supporting legal custody of this child, the appropriate legal charge at this stage is “kidnapping.” DNA testing is presently being done on both the victim and the baby, and that will confirm for certain whether or not this baby was taken from the mother’s body. Regardless, kidnapping in Massachusetts is a felony charge, carrying a lengthy state prison sentence.

• But if police suspect Corey actually cut this baby out of the victim’s body, why aren’t there more serious charges than just kidnapping? Depending on the evidence investigators obtain, there may well be – soon. But it’s important to understand: Two separate acts of violence seem to have been committed against this victim: One, the apparent blunt force trauma to the victim’s head, which at this point investigators believe killed the victim – or at the least rendered her unconscious; and two, the act of cutting into the victim’s abdomen to pull out the fetus. An autopsy will first need to be completed on the victim, to determine what the exact cause of death was, and whether or not she was still alive (conscious or not,) at the time her abdomen was sliced open and the fetus removed.

If the autopsy confirms that the mother was killed by blunt force trauma to the head and police can develop enough evidence to tie Corey to this act, she will be accordingly charged with this Massachusetts murder, most likely murder in the first degree. If police determine that someone else actually struck the blows that killed the mother, but determine that Corey was involved, present or assisted in the killing, she can be charged with accessory to murder (before or after the fact.) If the investigation determines that Corey was the person who sliced into the mother’s abdomen and pulled out the fetus, she can be charged with mayhem and battery. (Mayhem basically involves mutilation or dismembering of a body.) If the victim was unconscious at the time of the mayhem, then no assault charge would result. If the autopsy determines the victim was conscious at the time of the attack, assault charges would likely be filed.

• What’s even more interesting here, is the “kidnapping” charge. Consider: I’m sure you’ve heard of the savage stories of people sometimes being unwittingly drugged at a bar, for example, then dragged off somewhere, to have a kidney cut out of them. These horrid stories reflect the growing black market trade for human organ transplantation (most often occurring abroad.) If occurring in Massachusetts, the most likely charges that would stem from such an incident would be: assault, battery, mayhem and possibly attempted murder. Kidnapping? Of course not – though something was illegally and violently removed from the victim’s body, a kidney is a human organ, not a human being. But something was removed from this victim’s body here – so why the “kidnapping” charge? Because at 8 months, a fetus is legally considered “viable” – that is, it can live outside the mother’s womb – and hence the law considers the fetus a “person”. That is why you’ve been reading and hearing this fetus referred to as a “baby”. If the fetus had been under 6 months in development, a charge of kidnapping would not be likely. Rather, the charges of battery, mayhem and attempted murder would be filed.

I’ll continue to monitor legal developments on this story.

In my previous post on this story, I said I’d explain more what the insanity defense is and isn’t. Aside from the possibility that this defendant may have committed two murders over 23 years ago and had been walking around scott-free until this parental kidnapping charge, this whole story doesn’t merit an asterisk in a conversation.

That being said, Gehartstreiter’s (or, as he’s been referred to elsewhere, “Whateverhisname’s”) defense lawyers are going to have one hell of a hard time convincing a jury that this defendant was legally insane to the point where he should be acquitted of this charge. The reason for this is that, in order for a jury in Massachusetts to find a defendant “not guilty by reason of insanity”, it must be proven beyond a reasonable doubt that the defendant was not just mentally unstable, but so mentally ill that he or she could not comprehend or understand the criminality of his conduct, or comprehend the difference between (legally) right and wrong. As a Massachusetts criminal defense lawyer, I don’t doubt that Gehartstreiter’s lawyers can demonstrate the Gehartstreiter suffers from Narcissistic Personality Disorder, or that he harbors delusions of grandiosity. The defense’s psychological experts can make that clear fairly easily (as could reportedly almost anyone who has spent ten minutes with this defendant.)

But insane to the point of not recognizing or understanding the criminality of his conduct in crafting an elaborate plan to abscond illegally with his daughter, assaulting his daughter’s social worker, then crossing multiple state lines in an attempt to avoid capture? A single juror's simple question: If he were so insane that he didn’t comprehend the criminality if his conduct, why the elaborate escape plan to run and hide?

Gehartstreiter’s defense team (ever recognize how losers like this guy – recall OJ – always have not just one defense lawyer, but defense “teams”?) will do their best, as they are ethically and duty-bound to do. But in my professional opinion as a Massachusetts criminal defense attorney, they shouldn’t hold their breath.

And neither should the rest of us.

I thought awhile about posting something on the Clark Rockefeller trial here in Boston. (I posted previously about this case, and recently considered that perhaps I should omit further attention to it.) Part of me says that this is an overblown, media-driven case that is no different from dozens of other similar cases of “parental kidnapping” and criminal defense. But then, such could be said of almost any case or trial reported in the media: Few of them are dramatically different than the vast majority of similar criminal cases that run through the courts every day. What makes a case a “media case?” Pick one: a) Celebrity; b) Upper-Class murders and sex crimes or violent crimes (something too many people falsely think is antithetical); c) Sex; d) Con-artists and “The Con”; d) Graphic brutality; e) Sex; f) Sex; g) Sex, and so on.

Judging from the majority of posted comments to the Boston Globe’s website (which has been covering the story extensively, and has published over 100 reader posts on this subject on its website to date,) the Globe’s readership seems to feel that this case is, to quote Shakespeare, “Much Ado About Nothing.” Here is a sample of recently posted reader comments to the Globe:

• “I don't get why this case grabs headlines. Whateverhisnameis got a raw deal from divorce court and wanted more time with his daughter. He's got plenty of company with the thousands of other men in Massachusetts who get the short end of every divorce in this state. But if he didn't have a funky name that he changed, as many legal immigrants to this country do, this would be just another domestic case resulting from a bad probate court decision. Let Whateverhisnameis off with the crazy defense and focus on the real problem, men all over the Commonwealth suffering from one-sided legal decisions.” Posted by Andrew Palmer May 28, 09 08:56 AM
• “No one cares about this story. Once the girl was returned safe, that was it. Enough of this loser.” Posted by CB May 28, 09 09:01 AM
• “I think Single Dad has missed the point. As a father I can tell you this is not an issue of "fathering." This is about an evil individual putting his needs above those of his child. This may also be about a profoundly dangerous individual continuing his pattern of anti-social behavior...” Posted by Lorne D. Gilsig May 28, 09 09:35 AM
• “I’m still trying to understand why the media thinks this is a “major story.” Posted by Slim Pickens May 28, 09 09:39 AM
• “It grabs headlines because he's suspected of murdering a couple while living in California.” Posted by Brad May 28, 09 09:29 AM

“Brad’s” observation, above, comes half-way closest to the truth. The unsolved murders over twenty years ago of a married couple that Gerhartstreiter, a/k/a Rockefeller, or (as one Globe reader has dubbed him, “Whateverhisnameis”) rented an apartment from, and who are thought to have been murdered, is an unsolved case, a cold case that never really went anywhere in terms of suspects. Mix an unsolved mystery with the Upper-Crust exterior and elite life that someone with (allegedly) the name of “Rockefeller” has lived, add “The Con,” and you’ve got the perfect mix for a media case. How many murders do you think have involved spouses? If you answered “too many,” you’d be right. Sadly, they’re far too common. Yet it was the trial of Claus von Bulow, accused of murdering his wife Sunny von Bulow for millions in inheritance, that captivated the world and led to a major film, “Reversal of Fortune,” starring Glenn Close, Jeremy Irons, and Ron Silver. The story line? Wealthy Sunny von Bülow lies brain-dead, husband Claus guilty of attempted murder. A Harvard Law professor comes to his defense… That case provided the perfect mix of Upper-Crust elite, Murder, “The Con,” and Celebrity.

Standing alone on the charge of parental kidnapping, does this case merit the attention it is generating? Absolutely no – not on that charge alone. But be aware: This man has not been held in jail without bail for the past nine months because of that charge alone. If that were the one and only charge he faced, the public would have never heard his name, and he would very likely have been released with modest bail, soon after his arrest. This trial is not about simply the charge of parental kidnapping, of a daughter no one has disputed that he loves very much. It’s about getting to the bottom of much darker crimes. And in that sense, perhaps it merits our attention – if only to provide hope to the surviving victims of hundreds of other unsolved crimes across the country, that cold cases can be solved.

Is “Whateverhisnameis” a con man? Yes to that in my view. Is he a loser? Yes again. Is he a murderer? Quite possibly. But he’s raised an insanity defense to this kidnapping charge. Hence the salient question: Is he legally insane? I’ll discuss that defense, in my next post.

A little too much time has passed since my last post, so let’s resume where I previously left off. First, let’s look at the legal facts of this case. Of the 12 charges filed against Simpson, the most serious in terms of penalties are the charges for armed robbery and kidnapping. As at least one member of Simpson’s party was armed with a gun, that charge appears legally appropriate, as it hasn’t yet been shown that the property Simpson was seeking was, as he claims, legally his property. If that property were later proven to in fact belong to Simpson, it may be difficult for a jury to convict Simpson of “robbing” someone of property that they did not have “rightful possession” to. As to the kidnapping charge, I’d have to say – without at all being a Simpson apologist – that is quite a stretch, legally speaking.

Technically speaking, a charge of “kidnapping” (also sometimes spelled “kidnaping”) necessarily includes the act of either holding or transporting someone against their will by force or threat of force. A common legal definition is: “The taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation.” In Las Vegas, conviction on a kidnapping charge is punishable by five years to life in prison. A conviction of armed robbery carries a mandatory sentence of at least two years behind bars, and could bring as much as 30. Sentencing for Simpson has been set for Dec. 5. Obviously , the stakes are very high for Simpson.

"When they (Simpson and his party) went into that room and forced the victims to the far side of the room, pulling out guns and yelling, `Don't let anybody out of here!' — six very large people detaining these two victims in the room with the intent to take property through force or violence from them — that's kidnapping," prosecutor David Roger said.
Are those the words of an objective, dispassionate prosecutor who would have felt the same way had this charge been brought against any of the anonymous millions who come to Las Vegas with the now well-known attitude, “What Happens In Vegas Stays In Vegas”, or are these legal hairs being split because the person charged is O.J. Simpson? The odds are, both are true. It’s accurate that Simpson’s conduct meets the definition of the charges of armed robbery (so far, that is.) As to the “kidnapping” charge, while it may be technically accurate, as I said, it’s somewhat of a legal stretch. Typical kidnapping charges almost always conduct involving ransom demands, sexual offenses, or a noncustodial parent taking and holding a child in violation of a court order (such as seen recently in the case of the Boston suspect known as “Clark Rockefeller.”) While the men in that room who were allegedly threatened by Simpson and his party were apparently detained against their will under threat of harm, it’s not very likely that a kidnapping charge would ever have been brought if these suspects did not include O.J. Simpson (or a person of his equal repute).

Therefore, speaking legally and on a technical level, it’s true that both of these charges of armed robbery and kidnapping, apply here. However, as a Massachusetts criminal defense attorney, I think it’s also true that ‘Payback’ is operative here. Since Simpson was acquitted in 1995 of criminal charges of murder in the deaths of his wife Nicole Simpson and Ron Brown, he’s widely been thought of as guilty man who slipped through the criminal justice system as the result of a biased jury, a defense-oriented judge, and a legal “dream team.” At the end of this story, Simpson may become more known for the adage “What Goes Around, Comes Around,” than anything else in his life.

Apologies to my readers for my having not posted something for so long. I’ve been very busy lately with some demanding legal issues. Let’s turn the focus back to what’s current in the news of criminal law.

O.J. Simpson finds himself again behind bars. This time, football star and celebrity-in-exile was convicted of kidnapping, armed robbery and ten other charges for joining five men a year ago and storming into a room at a Las Vegas hotel-casino, where the group seized several game balls, plaques and photos allegedly belonging to Simpson. Prosecutors claimed two of the men with him were armed; one of those men said he brought the gun at Simpson’s direction. Simpson's longtime friend and co-defendant, Clarence "C.J." Stewart, 54, also was found guilty on all charges and taken into custody. From the beginning, Simpson and his lawyers argued the incident was not a robbery, but an attempt to reclaim mementos that had been stolen from him. He said he did not ask anyone to bring a weapon and did not see any guns during the incident.

Simpson’s defense attorney, Yale Galanter, tried to portray Simpson as a victim of shady characters who wanted to make money off his famous name, and of police officers who saw an opportunity to "get" Simpson and avenge his acquittal in the Nicole Simpson/Ron Goldman murders. Prosecutors said Simpson's ownership of the memorabilia was irrelevant; that it was still a crime to try to take things by force, and that the charges filed against him were appropriate.

So what’s really going on here? Whose version is closer to the truth, and do these verdicts represent justice or vengeance? I’ll take a closer look at the legal issues involved in this case, in my next post, later this week.

In my last post, I talked about the Clark Rockefeller case, closing with the question of what, if any crimes Rockefeller might be charged with in this case.

Given the incredible, yanked-from-Hollywood story that seems to be this man’s life for the past thirty years, complete with multiple identities and con jobs throughout his long trail across the United States, it would seem to many people that he would face a long list of criminal charges. Now that the FBI, Los Angeles and Boston police investigators have all confirmed that “Clark Rockefeller” is in fact Christian Karl Gerhartsreiter, born in Germany, “Rockefeller” (I will continue to refer to him under this name until I verify FBI reports,) poses an appealing target for prosecutors, most importantly because he remains a ‘person of interest’ in the disappearance and suspected murders of Jonathan and Linda Sohus of San Marino, California in August 1985. The Sohus’ were Rockefeller’s landlords at the time. Shortly after the Sohus’ disappearance, Rockefeller had dug a large pit in the backyard of the Sohus’ property (where Rockefeller lived in the Sohus’ renovated garage.) At the time, Rockefeller told at least one person he had dug the pit due to “plumbing problems.” Nine years later, in 1994, the then owners of the property were excavating the backyard as part of work on an in-ground swimming pool, and workers discovered human remains (of a man) stuffed into a bag. The remains were never definitively identified.

So what happens now? Can Rockefeller be charged with the murder of at least Jonathan Sohus? That’s not as easily said as done. First, let me explain the charges Rockefeller can be, and is now, charged with in Massachusetts. At present, those charges are: 1) Felony parental kidnapping; 2) Assault; 3) Assault and battery with a dangerous weapon. These charges all stem from Rockefeller’s forcible abduction of his daughter Reigh from Boston Common in July, during a supervised custodial visit of his daughter with a social worker from the Massachusetts Department of Social Services. The most serious of those charges, the count for felony parental kidnapping, carries a penalty of up to twenty years in state prison. Rockefeller remains in custody in the Suffolk County House of Correction in Boston pending trial on those charges, so he isn’t going anywhere for the time being.

But what of his living a life of aliases for the past thirty years, and what of the highly suggestive evidence implicating him in the disappearance and presumed murders of Jonathan and Linda Sohus? Bringing criminal charges in these two areas is much more difficult. The reasons? First, as to the living a life under various aliases: While it may surprise you, using an alias is not a crime in most states. Unless a clear intent to defraud (usually in a business or commercial setting,) can be demonstrated on the part of the part of the person using an alias, the act of using an alias is not, in and of itself, a crime. Secondly, as to the issue of the disappearance and presumed murders of Jonathan and Linda Sohus, bringing murder charges and successfully obtaining a conviction against Rockefeller – based on the evidence that exists as of today’s post – would be extremely difficult. Reason Number 1) As of today’s date, no eyewitnesses to the Sohus’ disappearance or presumed murders have come forward. 2) Successfully identifying the buried remains discovered in the Sohus’ former backyard, even using DNA analysis, may not be possible, due in large measure to the fact that Jonathan Sohus was adopted, and no living relatives have yet been identified to come forward to avail themselves of DNA testing. 3) Much of the evidence gathered in the 1985 investigation of the Sohus’ disappearance has been reportedly lost or destroyed.

As of this post, the evidence linking Rockefeller to the Sohus’ disappearance, while certainly suggestive, is entirely circumstantial. It is nowhere near the level or quality of evidence required to obtain a conviction on murder charges. That may be highly frustrating to police investigators, but it is the legal reality.

Stay tuned for more developments later on this interesting case.

The tangled story of the Boston man who claims to be known as “Clark Rockefeller”, continues to fascinate. This is quite a story. For those of you who may not know, Rockefeller first splashed onto the front pages (at least in Boston) when he allegedly kidnapped his young daughter, Reigh, while on a supervised custodial visit with her in July. The kidnapping caper itself was pretty creative: Rockefeller, lying to a limousine driver about wanting to safeguard his daughter from a person he recently concluded was a danger to her, arranged to have the limousine driver show up at a predetermined time at a certain date on Boston Common, then pushed aside a Department of Social Services (DSS) social worker who was accompanying his visit with his daughter, (the person he told the limo driver he was allegedly trying to protect her from,) threw his daughter into the limo, and had the driver speed away. That set off a massive, multi-state manhunt for Rockefeller and his daughter, complete with televised pleas for the girl’s safe return by her mother. Rockefeller, with his daughter, was apprehended by police in Baltimore, Maryland a few days later.

But that was just the beginning, and it makes the kidnapping caper on Boston Common seem very small by comparison. As part of the manhunt to locate Rockefeller, police discovered a fingerprint on an old application for an SEC brokerage license, under another name, which matched Rockefeller’s fingerprint. Subsequent investigation has uncovered that “Rockefeller” has apparently operated under over at least twenty five years under various aliases, including: A German student named "Christian Karl Gerhartsreiter", who lived with families in Connecticut until he wore out their hospitality; "Christopher Chichester", which he allegedly used while living in San Marino, California; "Christopher Crow", which he allegedly used while working as a bond trader in the late 1980’s in New York (where he reportedly never closed a deal,) and "Clark Rockefeller" in Boston. At almost all times, wherever he was and whatever identity he assumed, Rockefeller allegedly painted himself as either a millionaire or the son of European royalty. Now, he is not only behind bars on multiple charges related to the alleged kidnapping of his own daughter, but his name is front and center in a long-unsolved mystery from California, allegedly involving the murder of a young couple who were his landlords in San Marino, California, in the mid-1980’s.

What crimes, if any, might Rockefeller be guilty of? I’ll address that in my next post.