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William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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In Part One of my most recent post on this subject, I outlined a recent effort in the Massachusetts Legislature to decriminalize and eventually legalize for sale psychedelic drugs.  While a good number of people might be shocked at this idea, it’s not so far-fetched.  Psychedelic drugs, also called entheogenic drugs, have been used by human beings for centuries throughout a variety of cultures, and many of these drugs produce positive physical and psychological benefits.

Psilocybin has very low toxicity and a very low potential for harm, and arresting and prosecuting people for the private use of these drugs, is not only fruitless, it is unfair and counter-productive to the criminal justice system.

Without revealing any details that would in the slightest way violate attorney-client privilege, let me explain:  A previous client of mine was arrested and prosecuted for possession of “magic mushrooms” which of course contain the active ingredient psylocibin, a hallucinogenic drug.  She was attending a concert.  She was not “dealing”, not selling the drug, not hurting anyone in the process, and certainly not hurting herself.  She was put through quite the legal and prosecutorial experience before I secured a dismissal for her, and it cost her needless personal stress and financial expense.

As pretty much anyone in Massachusetts knows, possession and use of marijuana (cannabis) has been legal here for a few years now.  It made its way to full legalization following initial decriminalization. Decriminalizing is the legislative process of removing criminal sanctions against an act or behavior, while legalizing something removes all legal prohibitions against that act or conduct.  It was a long and winding road to get to that public policy shift: Despite numerous bills to legalize cannabis being filed with the Massachusetts state legislature, wary (read: politically weak) state legislators never fully stepped up to the plate to act rationally on this issue. Ultimately the issue was put to a state ballot question in 20, and voters forced the legislature to legalize cannabis.

Now, a movement is afoot to legalize all psychedelic drugs in Massachusetts.  Clinically, these drugs are known as “entheogenic cultivated substances”:   An entheogenic is a natural, psychoactive substance that can induce changes in perception, mood, consciousness, cognition, or behavior for the purpose of actuating spiritual development.  Entheogenic substances have been used in spiritual and religious settings for centuries. contexts.  The most well-known of these types of drugs are LSD and psylocibin, the active ingredient in “magic mushrooms”.  Proponents for legalization argue that entheogenic plants have been used for centuries by a variety of cultures to address conditions that include depression, post-traumatic stress disorder (PTSD), anxiety, grief and the anxiety that terminally ill patients suffer, as well as disabling migraines and cluster headaches.

As a Massachusetts drug charges lawyer, I think that legalizing such drugs is a wise alternative to the failed and uneven legal approaches that have been used for more than 50 years now.  The massive failure of the “War on Drugs” has cost billions of taxpayer dollars that have been spent prosecuting millions of otherwise legally abiding citizens for possessing or using these substances.  Bearing in mind that any substance can be abused, psychedelic drugs are, at base, not usually chemically addictive, though they can be psychologically addictive.

Living in Massachusetts can be, during winter, a challenge to say the least.  It’s cold enough here to snow from about early November to early April.  For skiers and winter sports enthusiasts, it’s Heaven.  For me and a lot of people here, it’s more like Hell (freezing over).  The injuries that can be attributed to snow & ice are numerous – and despite what some people might think, the consequences aren’t limited to a scrape or a sprained limb.  The consequences can be death, or worse.

We were reminded of that just a few days ago, when a New Hampshire driver, 22-year-old Michael Conry of Londonderry, N.H., was very seriously injured when a large chunk of ice and snow flew off a vehicle in front of him, came crashing through his windshield, and almost killed him.  Take a look at these photos

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According to police reports, Conry suffered very serious injuries to his face and required several surgeries to remove numerous pieces of glass from both of his eyes.  The driver of the truck who failed to remove that snow and ice now faces criminal charges under “Jessica’s Law” in New Hampshire, named after a woman who was killed when a nine-foot piece of ice fell off a truck and collided with her vehicle.  Despite efforts to raise public awareness of this threat, many drivers in several states just don’t get the message about the importance of removing snow & ice from their vehicle before hitting the road.

In Part One of my previous post on this subject, I discussed the Supreme Judicial Court’s recent ruling upholding the validity of a search warrant issued for the defendant’s computer, when the warrant was issued seven months previous to the computer’s seizure.  That case is  Commonwealth vs. Guastucci, SJC-12829, and the defendant was convicted of uploading and possessing child pornography on his computer.  A video of oral arguments before the SJC can be viewed by clicking here, courtesy of Suffolk University Law School.

Before going further, let’s define the legal standard that police and law enforcement must establish, in order for a judge to issue a search warrant.  Very briefly, it’s called “probable cause”.  Basically, this means that a judge must find that a substantial basis exists to believe that evidence of criminal activity may reasonably be expected to be located in the location searched “at the time the search warrant issues”  (Commonwealth v. Long, 482 Mass. 804, 809; 2019). Generally speaking, it is not overly difficult for police or a law enforcement agency to obtain a search warrant.   That being said, what made the Guastucci case notable was that the defendant didn’t deny any other elements of the crime he was charged with – it was his “staleness” argument over the search warrant that was at issue.   On appeal from his conviction, the defendant argued that the passage of seven months between the alleged upload of child pornography and the application for a search warrant rendered the warrant stale so that it lacked probable cause.

This legal argument failed. The SJC affirmed Defendant’s conviction of two counts of possession of child pornography, holding that the information in the search warrant was sufficient for a magistrate to have found probable cause, and that the information in the trooper’s application for a search warrant did not render the warrant so stale so that it lacked probable cause.

Search warrants have traditionally been the focal point of many an appellate court’s decisions in the area of criminal law.  This area of law is governed by the Fourth Amendment to the U.S. Constitution and here in Massachusetts by Article 14 of the Massachusetts Declarations of Rights, and is extremely important because it governs when and under what circumstances the government can search and/or seize items in your possession.  This is true whether those items are located in your home or on your person.

As a Massachusetts internet crimes attorney, I can assure readers that the fact that personal computers and smartphones are a now ubiquitous element of our everyday life, has elevated legal issues surrounding search warrants to a very high degree.  This fact was illustrated in a recent case on this legal topic decided by the Massachusetts Supreme Judicial Court, in Commonwealth vs. Guastucci, SJC-12829. Continue reading

I’ve written before about how the Obama-era regulations that defined and governed sex offenses under the federal law known as Title IX, were far too weighted against the accused.  “Title IX” prohibits discrimination on the basis of gender at colleges, universities and any educational institutions receiving federal funds.  The law is enforced by the U.S. Department of Education.

After an exhaustive review process overseen by US Education Secretary Betsy DeVos that spanned more than 2 ½ years and received more than 120,000 public comments, revisions and clarifications were made to the regulations  governing how colleges and universities respond to allegations of campus sexual assault and rape.  Colleges and universities across the U.S. must comply with the provisions of the new law by August 14.  If they don’t, they could lose tens of millions each in federal funds.

Some of the more important changes to the Title IX sex assault regulations include:

Here’s an update on how the Massachusetts District Courts are adapting to COVID-19:

Q.  Are all of the District Courts open during the COVID-19 crisis?

A:  Yes, all District Courts are open to conduct certain designated business and to conduct hearings in certain designated matters. As of July 13, some proceedings will take place in person. Other business is instead being addressed virtually by telephone, videoconference, email or comparable means. These are called “virtual hearings.”

A friend of mine and I were recently talking about our hope that the economy can be re-opened again – and soon.  One of the things he said to me was, “Yeah – I haven’t been able to hit the open road and hit the gas for a while.”  As a Massachusetts lawyer who represents clients who have been charged with, among other things,  motor vehicle offenses, I’m sure you can imagine what my response was.

Business shut-downs, stay-at-home orders, quarantines, and working remotely from home have all combined to create a kind of “mass cabin fever”.  That term, of course, originated from people being trapped in cabins during severe winter snowstorms.  Even under harsh winter conditions, people want to get outside after a few days.  But here it is, Memorial Day weekend — and we haven’t all been stuck inside for just a few days — it’s been a few months.  So the desire to hit the road is understandable – but if it’s done in a reckless, dangerous or illegal way, legal trouble could likely follow.  Criminal offenses for such operation include:

  • Operating After License Suspension or License Revocation

As I’ve blogged about recently, one very sad and troubling side-effect of the COVID-19 crisis, has been an increase in domestic violence.  As a Massachusetts domestic violence lawyer, I’ve seen this spike correlate with COVID-19.  It comes as no surprise:  People are under enormous psychological and financial pressure.   Kids are stuck at home, doubtless escalating those demands and pressure.  Even without kids to care for, couples feeling the prolonged stress can act it out in ways they would not have foreseen.  People are human.  And as I’ve said before, throw alcohol into the equation, and things can get out of control very, very quickly.  I’m posting this so that my readers can get a better idea of what constitutes “domestic violence” in Massachusetts, and what resources people can turn to if they feel it affects them, either as a victim or as someone who has been accused or arrested for this offense.

“Abuse” can be a wide-ranging term, but generally:

  • Physical abuse obviously includes hitting, punching, slapping, kicking, or attempting to strangle someone. In what might surprise some people, it can also include driving very recklessly for the purpose of intimidating a spouse, partner or family member.

A lot of consequences of the quarantine measures and stay-at-home orders flowing from the COVID-19 pandemic predictable were predictable:  Economic harm, educational impacts, hoarding at stores, transportation problems, etc.  But as a Massachusetts domestic violence lawyer, I can assure you that an even more disturbing impact awaited in this environment:  Domestic violence.  And it’s not surprising.  The number of phone calls I am getting from clients and potential clients that have been impacted by this not-so-unnatural phenomenon, has been unsettling, to say the least.

As I said, though, it’s not surprising:  Force people into their homes, limit their time outside, with almost no positive news but 24/7 broadcasts of the Apocalypse, doom and despair, and nerves are going to begin to fay.  Tempers are going to flare.  Frustrations are going to break through the surface.  Words are going to be exchanged.  Arguments are going to develop.  Add alcohol to this mix, and it’s downright combustible.  Notably, the Boston Globe recently published an editorial calling for all liquor stores in Massachusetts to be ordered closed until the current stay-at-home orders are lifted. Not a bad idea, in my professional view as a criminal defense lawyer.  All that it’s going to take is a phone call to the police from a next door neighbor or an apartment down the hall, and a series of very legally damaging events is going to take over, with very serious legal consequences.  You see, the subject of domestic violence is so much of a “hot button” issue, that no one in either law enforcement or the judicial system takes them lightly anymore.  Too many high-profile cases of domestic violence covered by the media have completely changed how police respond to these calls, and how District Attorneys’ offices and the courts deal with them. Continue reading

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