Boston Criminal Attorney Blog

In a ruling bound to enrage victim’s rights advocates and conservative legal and political commentators, the Massachusetts Supreme Judicial Court yesterday issued a decision restricting District and Superior Court judges’ ability to require that GPS monitoring bracelets be worn by convicted Massachusetts sex offenders, regardless of whether offenders have violated the conditions of their probation. While differing viewpoints can argue the constitutional validity of this decision, it is the underlying which gave rise to this ruling that is certain (understandably) to evoke a lot of visceral reaction about this ruling.

The facts of that case are unquestionably ugly and revolting, so let’s lay them out up front: One day twenty years ago, in 1990, a particularly loathsome individual by the name of Ralph Goodwin abducted and raped a 7 year-old boy. I said the details are revolting, and they are: Goodwin lured the young boy away from his parents while the family was attending an event at a Portuguese-American civic club in Lowell. He did this by enticing the boy in a game of hide-and-seek. According to prosecutors at his trial, Goodwin separated the boy from his parents and a friend and carried him outside the building, threatening to kill him if he called for help. He then took the boy to a secluded area underneath a nearby bridge and raped him. When Goodwin was done, he then took him to a house, where he sexually assaulted the boy again. Goodwin held the boy prisoner in the cellar of the house overnight, and raped him again the following morning, according to prosecutors. He then placed the injured and traumatized boy in a large cardboard box, deposited him on a street corner, and called a taxi to take the boy to his home.

Goodwin was convicted at trial, and then-Superior Court Judge Patti B. Saris, (who is now a federal judge,) sentenced Goodwin to two concurrent terms of 10 to 15 years in prison for two of the Massachusetts rape charges, and nine to 10 years concurrently for the kidnapping. She sentenced Goodwin 30 to 40 years for the third rape but suspended that sentence, but ordered that it be automatically imposed if he reoffended. Goodwin then spent the next 15 years as a guest of the Commonwealth in state prison. Prior to his scheduled release in 2005, he was civilly committed to Bridgewater State Hospital (basically the state prison for the insane and the sexually dangerous,) after a judicial determination that he was still sexually dangerous. In 2006, the Massachusetts Legislature passed a law to require that all convicted sex offenders wear GPS monitoring devices. Fast forward to June 2009, when Goodwin was released after a jury concluded he was no longer dangerous. He was given several conditions of probation at his release. However, wearing a GPS monitoring device that would allow authorities to track his movements, and staying away from schoolyards, was not among the listed conditions of probation, because he was convicted prior to enactment of the 2006 law requiring all convicted sex offenders to wear the devices. This is key here.

Shortly after Goodwin’s June 2009 release, prosecutors asked a judge to add to his probation conditions, and order that Goodwin wear a GPS device, and also asked for additional probation orders that would restrict his movements (these requests were asked by prosecutors, in addition to the previous probation conditions that were imposed upon his release in 2009.) At a hearing on these additional requests, a Superior Court judge ruled against the prosecutors’ requests. It is extremely important to note that the judge did this, primarily due to the fact that the SJC had just issued a ruling the day before this judge’s ruling in favor of Goodwin, prohibiting judges from applying the 2006 GPS law retroactively. This is also key here.

Yesterday’s 4-3 SJC ruling, upholding the lower court judge’s refusal to add GPS monitoring to Goodwin’s prior probation conditions (as well as their refusal to prohibit Goodwin from going near playgrounds, schools, and libraries) seems, at first glance, illogical and ill-advised. But the SJC’s decision was based on two facts: 1) Their prior decision in 2009, preventing judges from applying the GPS law retroactively; and 2) The fact (stipulated to by both prosecutors Goodwin’s attorneys,) that Goodwin had not, at the time prosecutors moved to impose the additional GPS monitoring, violated any conditions of his June 2009 probation. (Note: In the interests of full disclosure, Goodwin did eventually the terms of his June 2009 probation, by failing to attend a mental health day treatment program, and as a result, was ordered by another judge to wear a GPS device, (though that judge did not restrict where him from going near schoolyards or playgrounds.)

Writing for the majority, Justice Ralph D. Gants wrote, “Here, the (trial) judge correctly found that there had been no material change in the defendant’s circumstances after the terms of (the June 2009) probation were initially imposed that would justify the proposed additional probation condition of GPS monitoring and exclusion zones.’’ This decision essentially reaffirms the 4-to-3 decision the high court issued in August 2009, ruling that the Legislature’s 2006 law requiring convicted sex offenders to wear GPS devices cannot be automatically applied retroactively to defendants who were convicted prior to the statute’s enactment. The majority said the devices were “punitive” rather than “remedial”, and that they create an unconstitutional burden on the individuals’ freedom.

The court’s ruling drew criticism from the District Attorney who sought the increased probation conditions on Goodwin, Middlesex County District Attorney Gerald T. Leone, Jr., as well as criticism from and victims’ rights advocates. Goodwin’s attorney, Jeannine Mercure, said the court’s ruling was a victory for civil liberties, and noted that the ruling had implications beyond solely GPS monitoring of sex offenders. Certainly, many people will disagree. Even though I practice as a Massachusetts sex offender attorney, I full understand why people would disagree with this argument.

These decisions aren’t easy. It’s argued that decisions like this are needed, to protect the constitutional rights of the larger population. The case is Commonwealth vs. Ralph W. Goodwin, Slip Opinion No. SJC-10647.

In my previous posts on the subject of what can happen when a defendant who has been sentenced to probation, violates one or more of the terms of his probation agreement, I discussed the case of Massachusetts state senator Anthony Galluccio. Galluccio was sentenced to probation recently for leaving the scene of an accident last October 4 2009, in which a 13-year-old boy was I injured. Because Galluccio had previously been convicted twice on Massachusetts drunk driving charges, (one of which he had been pardoned for) and because investigators suspected that alcohol was involved in the October 2009 vehicular accident where Galluccio left the scene, a judge placed Galluccio under house arrest and placed him on probation. One of the terms of that probation order, was that Galluccio abstain completely from ingesting alcohol. To monitor his compliance with that order, an electronic alcohol monitoring device (called a “Sobrietor”) was installed in Galluccio’s home, and he was required to submit to random alcohol testing with that device.

Three days after receiving that sentence, Galluccio tested positive (on three separate tests) for alcohol. He was then arrested for a Massachusetts probation violation. As part of his defense, he initially claimed that his toothpaste caused a false alcohol reading (he later abandoned that defense). At his court appearance earlier this week, Galluccio showed up in court with two defense lawyers, several public relations representatives, and expert witnesses testifying on his behalf that the “Sobrietor” accuracy might be questionable.

The result? Handcuffs and a trip to a Billerica jail cell for the next 12 months. This very public story illustrates just how serious probation agreements are. Especially when it comes to Massachusetts OUI charges and alcohol abuse. Some defendants think that they can ignore probation agreements – but they’re serious business. The judge in this case, Matthew J. Nestor of Cambridge District Court, had (generally speaking,) three options in front of him, after hearing Galluccio’s defense at this probation revocation hearing: 1) Terminate probation, 2) Re-probate him with more serious conditions – including mandatory alcohol treatment at an inpatient detox center – or 3) Impose a one-year jail sentence. Galluccio and his lawyers probably thought he’d get one of the first two sentences. But as a Dedham Massachusetts OUI defense lawyer, I can assure you: With multiple offenders, luck always runs out.

The buzz in the Massachusetts media right now, is whether Galluccio’s sentence for this probation violation was too harsh. Some observers, including some criminal defense lawyers, are saying that a defendant who wasn’t a public figure would have received a lesser sentence. As a Boston criminal defense lawyer, I’ve seen these cases go either way. Perhaps it’s true that because Galluccio is a high-profile figure, the judge thought that a very powerful message could be sent about alcohol abuse and probation violations with this sentence. Regardless, this case makes clear: Massachusetts DUI/OUI charges are dealt with very seriously, and any probation violations involving alcohol won’t be tolerated lightly.

In my last post, I discussed the most recent Massachusetts OUI arrest involving state senator Anthony D. Galluccio, and his most recent, and rather novel, legal defense. I made the argument that while as a Boston criminal defense lawyer I zealously and aggressively fight for my clients in court, there comes a time, if a person is arrested multiple times for the same offense (such as OUI or a Massachusetts sex offense,) to own up to the problem, cease the excuses, and get effective treatment.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.

In my experience as a Massachusetts OUI defense lawyer, most of my clients who receive probation sentences, understand and appreciate the importance of adhering to any terms of probation they might receive. Any client that I’ve advised to accept a probation sentence (which is not always advisable, as many of my clients are in fact not guilty of OUI,) “gets it” – they know how important it is to obey any terms they are given. But occasionally, I’ve seen other people who take a “Yeah, yeah – sure, sure,” attitude when agreeing to probation – never intending to adhere to the terms. It’s these people that I have no patience for: The ones that couldn’t care less what consequences their conduct may bring. For these people, they either simply don’t care, or they can’t control themselves. When I see such a person, and I’m asked to represent them after they’ve committed multiple offenses involving public safety, I’ll take a close look at their history. If I become convinced that this person has undeniable addiction or behavioral problems beyond their control, I won’t represent them.

I began this post by saying that I fight tooth and nail to defend my clients zealously and aggressively – but I also have to be able to sleep at night with a clear conscience. If I’m morally convinced that if I secure an acquittal for a potential client, that person will go out and commit the same offense, only to perhaps kill or seriously harm someone else, I’ll decline the case. That’s a tough call for a criminal defense lawyer – it’s not easy. And I know several of my colleagues who would disagree with me. But when I think of my wife or a loved one being the next potential victim, it’s a choice I’m brave enough to make. I'd rather see them get effective treatment, than an effective pass to go out an reoffend all over again. This point also illustrates the need for our criminal courts to be more focused on treatment than simply incarceration.

Oh, and by the way - Happy New Year to all my readers. Let's hope that 2010 is a better year, in many ways, economic, social and otherwise, than was 2009.