Boston Criminal Attorney Blog

By now, many readers of this blog know that the U.S. Supreme Court ruled last month that people convicted of a crime have no constitutional right to DNA testing to prove their innocence, after they are convicted. What most people didn’t know until then, however, is that Massachusetts is one of only three states out of fifty that does not already have a law allowing people the right to try to prove their innocence, post-conviction, via DNA testing. The other two states are Alaska and Oklahoma. It’s baffling why Massachusetts, a state routinely considered progressive, has not taken any action on this issue.

In June, the U.S. Supreme Court, in a 5-4 ruling, declared that prisoners don’t have a constitutional right to submit DNA testing after their convictions, even if the convict is willing to pay for the tests himself. The majority’s reasoning was that the court should not to “constitutionalize” this right, when states appear to be already taking care of the issue. Chief Justice John Roberts wrote that “a criminal defendant proven guilty after a fair trial does not have the same liberty interests as a free man.” As a Massachusetts criminal defense attorney, I find that reasoning very troubling, and take profound issue with this ruling. It is plainly misguided. However, the state legislature in Massachusetts should also be faulted for not having acted in the past to join the 47 other level-headed states in enacting a measure to ensure the constitutional right of a convict to offer DNA testing evidence after a conviction, in an effort to prove their innocence.

The justices could have embraced a nationwide solution to wrongful convictions, and they chose not to. Over two hundred years ago, the framers of the Constitution could obviously never have foreseen the arrival of DNA testing. Had they been able to, it’s unthinkable that they would not have guaranteed a man the scientific chance to prove his own innocence. The framers of our Constitution were thinkers who justifiably viewed the power of government to imprison citizens with guarded skepticism. If a scientific method exists that can irrefutably establish guilt or innocence, it’s plainly ludicrous not to allow access to it. It isn’t a stretch to assume that most convicts who seek post-conviction DNA testing are probably innocent. How many guilty people are likely to demand that the proof that convicted them, become scientifically unquestionable?

According to The Innocence Project, an organization that advocates for people who say they have been wrongly convicted, DNA testing has exonerated 240 innocent people in the United States to date. At least 17 of those people had been on death row. These innocent people served an average of 12 years in prison for crimes they didn’t commit. Have you ever seen news footage of someone who has been released from years of imprisonment, thanks to DNA evidence that was admitted after trial? I’ve not only seen this in the news, I’ve met these people. They are the faces of exoneration. They’re people like you and me – and they were arrested, convicted and thrown in prison for crimes they didn’t commit. Crimes as serious as murder, to drug offenses, to rape, to simple assault and battery.

These wrongful convictions make clear that our judicial system is not infallible. A constitutional right to DNA testing in Massachusetts is needed, and if the Supreme Court’s ruling requires states to take the lead on this issue, then the Massachusetts legislature should do so, and fast. However, in the event you already don’t know, the Massachusetts legislature isn’t known for working overtime, let alone working. So if you agree that anyone convicted of a criminal offense in Massachusetts should have the right to submit evidence of DNA testing after they have been convicted, contact your legislator now.

Or someday you or someone you know could find yourself wrongfully convicted, with no way to free yourself though DNA evidence. And if you doubt that could happen to you, I can introduce you to some people who will convince you otherwise.

In my previous post, I discussed the arrest last week on rape charges of a recent Massachusetts prison parolee, one Richard Flowers, released two months ago in July. While this year isn't an election year in Massachusetts for statewide offices such as Governor, you can be assured that if it were, this case would be the "Willie Horton" of 2008. For readers who may not know, Willie Horton was a Massachusetts prison parolee who went on to kill someone after being paroled in 1988. The case was used by then-President George H.W. Bush, in the 1988 Presiential election race, as a centerpeice argument against voting for Massachusetts Governor Michael Dukakis, who came to embody charges of liberal prison parole policies.

Did the Parole Board make a mistake in this matter? Should Flowers’ application for parole have been granted? Critics of his release will probably argue that his release is an example of a system gone bad; that too many violent convicts are released on parole, when they should be kept in prison to serve their full sentence. In essence, that the corrections and parole system are too lax. But was that the case here? It doesn’t appear that way. To begin with, it needs to be understood that when anyone has been convicted and sentenced for a crime, that person cannot normally be held beyond the longest range of that sentence. For example, if the sentence is for 8 to 10 years in state prison, that convict cannot, under typical circumstances, be held for longer than ten years. Such prisoners cannot usually be held indefinitely. Secondly, predicting the behavior of any one individual, is often a complex process, taking into consideration a number of different factors, psychological assessments and behavioral history. Using all those tools, parole officials make the best decision they can, as human beings, to assess the likelihood of recidivism or future criminal behavior of the applicant. That is all anyone can do.

In this case, Flowers had served 12 of 12 to 15 years for his robbery conviction in 1995. In those 12 years, he received only a few minor disciplinary infractions. He had no history of violent behavior in prison. He had no history of sexual violence either in prison, or outside of prison. The Parole Board appeared to expended a considerable amount of time and reflection, between the time it first began reviewing Flowers’ application for parole in August 2007, and when the Board finally granted his release with the conditions that he wear an electronic monitoring bracelet, stay indoors from 10:00 PM to 6:00 AM, and report for mandatory alcohol and drug testing, in May 2008. Those conditions, in my opinion, were prudent and reasonable, given Flowers’ non-violent history for the previous 13 years in prison, as well as his criminal history preceding that prison sentence.

Doubtless the victim in this case, and many people, are enraged by this incident – and they want “something done”. But what? Refuse to ever release all prisoners on parole? Our criminal justice system is designed to offer prisoners the opportunity to rehabilitate themselves in prison, and show that they can change for the better. If you or someone you cared about were convicted of a crime, would you insist that no opportunity for parole ever be allowed? Most people don’t understand the various realities that guide and govern these situations. One of these realities – though it should not be the controlling one – is the reality of prison overpopulation in Massachusetts. The simple fact is, more people are convicted of crimes carrying prison sentences each year, than there is space to house those prisoners. A great deal of this problem has stemmed from mandatory minimum sentencing (mostly involving non-violent and relatively minor drug offenses,) which I’ve blogged about before and which has resulted in thousands of persons going to prison every year in this state, who should not be taking up space needed for violent offenders. While some might argue "that’s another debate", the fact is, prison overcrowding is central to why parole officials are under such presuure to create more space for violent offenders..

Convicts cannot normally be held forever after they have served their sentences – absent clear and compelling evidence that they pose a threat to a particular person or the public in general. Yes, we could insist that convicts serve the maximum of their terms, not less, and in some cases, they do. But the vast majority of criminal prison sentences provide a range of terms, minimum to maximum. Once the minimum is served, it is up to corrections officials and the state Parole Board to determine if the applicant is fit for release – and that is an imperfect science, at best. When an applicant who has been a problem prisoner, exhibited violence and shown little concern for his or her rehabilitation applies for parole, it is relatively easy matter to deny the application. But when, as here, the applicant was essentially a model prisoner, incurring only a few slight administrative violations, and had exhibited efforts to rehabilitate himself while in prison, is it unreasonable to grant him early release with the conditions that he wear an electronic monitoring device and be tested regularly for alcohol and drug use? I don’t think so.

This was a terrible, but I believe unpredictable, result here. To quote a spokesman for Suffolk County District Attorney Daniel Conley who was quoted in a Boston Globe story on this arrest: “It is appalling when (a crime like this) is committed. But there is nothing to suggest that it could have been avoided by any means other than the defendant’s own restraint.” There appears to be no indication that either Massachusetts state prison or Parole Board officials overlooked any signs that Flowers continued to pose a threat to the public. This incident should serve to do two things: 1) Remind advocates of mandatory minimum sentencing for non-violent offenses, that every time a non-violent offender is sentenced to prison, that person takes up the space needed to house truly violent offenders, and resultantly increases the pressure on Parole Board officials to release applicants to create more prison space. 2) Remind state Parole Board officials to ever more carefully probe the psychological makeup and present condition of parole applicants, but seeing into someone’s mind is a complex, and often impossible, task. Prison and parole officials are only human. They cannot see into the future, much less a person’s deepest, darkest thoughts. We are all only human.

An alleged rape and beating of a 25 year-old woman at Boston’s Back Bay Commuter Rail MBTA station is sure to raise the issue of releasing parole convicts sentenced for violent crimes, as well as raise questions of what, if anything, might be done in the future to predict violent behavior among parole applicants.

Richard Flowers, 48, of Roxbury, Massachusetts, was arrested Saturday night, September 6th and charged with assault and battery and rape. Police charge that Flowers approached a woman in a stairwell the Back Bay MBTA Commuter Rail station Friday night, September 5th, initially asking her for directions, then brandishing a gun and demanding money. When she told Flowers she hold only a few dollars, he allegedly dragged her to another stairwell, waving away witnesses who asked if everything was OK. According to the police report, when alone in the stairwell, Flowers ordered the victim to disrobe, then raped and beat her. The report states that after the attack, the victim was able to kick the gun that Flowers had placed on the floor during the attack, down a stairwell. As Flowers scrambled for the gun, the victim grabbed her dress and ran away screaming for help. By that time, witnesses who had earlier seen Flowers pulling the victim into a stairwell had already called 911, and police arrived shortly thereafter. The victim was able to provide police with a detailed description of her attacker, and based on that description, police arrested Flowers at his apartment on Saturday night, charging him with rape, and assault and battery.

The Massachusetts Parole Board and the Department of Correction will likely come under some fire for this incident, from various quarters, most likely victims’ rights groups. The central question: Was this predictable? Was Flowers released too early? Should his application for parole been more carefully screened? Could anything reasonably have been done to prevent this incident? Critics of parole in general, and of the Massachusetts Parole Board in particular, may believe there is much to criticize here, beginning with the fact that Flowers has a long criminal record, dating back to 1983. His offenses include a conviction of robbery in 1983, with a sentence of four to six years in state prison for that offense; a 1988 conviction for breaking and entering a motor vehicle with intent to commit a felony, for which he was sentenced to six to eight years. In 1994, he was charged with stealing audio equipment from a church in Tewksbury. In 1995, he was charged with robbery of a jewelry store in Cambridge, and was sentenced to 12 to 15 years in state prison.

In August of 2007, the Massachusetts Parole Board began reviewing Flowers’ application for parole, and recorded generally positive comments, including “Subject has worked hard at his rehabilitation and appears ready for community supervision.” At that time, however, the Board withheld final decision on Flowers' application. Three months later, Flowers was disciplined for minor prison infractions, but there were no violent offenses in any of his prison history. In May of 2008, the Board delayed a vote on his application, but two months later in July granted his release on parole because there had been no more prison disciplinary violations, noting “he accepts responsibility for his actions.” Flowers was ordered stay at home between the hours of 10:00PM and 6:00AM, wearing an electronic monitoring device and be tested regularly for alcohol and drug use. If he violated any of those conditions, he could be returned to prison.

More discussion of this case, in my next post.