Articles Posted in Corrections & Prison Administration

If you’re charged with a crime in Massachusetts, and have children, you should think about how that process affects more than just yourself. Many people in this state wind up needing a Boston Massachusetts criminal defense lawyer, for a wide variety of criminal charges. They may need a Dedham sex crimes attorney; or a Wrentham assault & battery lawyer, or an Attleboro drug offense attorney. As awful as winding up in jail or prison is for defendants themselves, a new study says that it’s even worse for the children of convicted defendants. No surprise there. But does that fact serve as a deterrent to a lot of would-be criminal defendants? To people who are otherwise law-abiding citizens? Yes. But not to the hard-core ones (gang members, etc.)

A recent study by the University of California-Irvine has found that prison is extremely bad for children whose parents are incarcerated, as it (quite obviously) affects their emotional development and physical health as they grow up. The study is to be published in September 2014 issue of the Journal of Health and Social Behavior. In fact, the study points out that having a parent in prison may be even more harmful to children than having their parents get a divorce or die.

In addition, the study compared children who have an incarcerated parent to other children with similar socioeconomic characteristics and demographics. It found that children who had a parent in prison were associated with having behavioral problems such learning disabilities, attention deficit disorder, and even speech and language problems. The obvious culprits? Mental and economic stress.

Most people who know me would tell you I’m “Not a liberal,” – and they’d be right. Most of my non-liberal views and positions concern political issues. However, when it comes to legal issues and protecting the legal rights of defendants who have been accused of crimes, I fight tooth and nail to protect and acquit my clients. I believe in the rule of law, and the law provides criminal defendants with certain rights, which I believe should be protected.

But there’s one legal organization out there, that I have never agreed with. Frankly, I find a great deal of their positions on legal issues (never mind social issues) to be extreme in the least, flamingly liberal, and obnoxious (which are often one and the same thing.) That organization is none other than the ACLU, as in American Civil Liberties Union – that bastion of left-wing radicals that aims to turn the United States into a dystopian country where EVERYONE can do ANYTHING they want or SAY ANYTHING they want, ANY WAY they want, at ANY TIME they want, in ANY place they want, where NO ONE can stop them or restrict them on any level. No matter how sickening and disturbing the speech. No matter how hateful the crime. No matter how destructive the conduct – such as manufacturing barbarically violent video games that poison the minds of young teenagers everywhere, producing massacres like Newtown, Conn. In their strange world, no one can be prevented by government from doing or saying ANYTHING they want.

Yet their middle name, literally, is “Civil Liberties.” Sounds great, doesn’t it? I have learned in life that what something sounds like, and what it actually is like, are two very different things. And the ACLU is Exhibit “A” on that point.

Now that this entire, sad affair that has taken four lives and horribly injured several more is over – at least on the investigatory and law enforcement level – though the legal one just begins – I thought some thoughts from a Boston criminal lawyer are in order here.

No, you’re not going to hear “You don’t know this suspect, Dzhokhar Tsarnaev, is guilty until he’s been found guilty beyond any reasonable doubt in a court of law.” It seems quite obvious that this kid is eyeball deep in this horrible story, and his guilt seems all but a foregone conclusion. (Unless a legal technicality is available to prevent same.) No, what I want to address here, is everyone’s quite rational and normal desire for justice at the end of this story.

Everywhere around me, particularly on social media such as Facebook, Twitter and such, I keep seeing and hearing demands for the death penalty in this case. On a pedestrian level, it’s understandable why so many people want this: This was a premeditated, heinous, sadistic act of violence, which killed three people immediately, a fourth later, and maimed several more. It turned what has for decades been an enjoyable event that heralded spring for all, into a nightmare that heralded only more insecurity and grief for many. The individuals and the families affected by these sickening events, will never be the same. All wrought by two disaffected, maladjusted, twisted individuals, who probably wanted to feel “important.”

Finally, Massachusetts officials have seen the light – at least on one subject. They are about to appeal a federal judge’s decision to grant convicted murderer murderer Robert –or should I say Michelle — Kosilek’s request for sex reassignment surgery. In other words, he wants to be a she. And yes, a federal judge in Boston ordered that this surgery be performed on him, and at taxpayer’s expense.

I’ve filed a post about this before. Here’s a brief recap of the history of this matter. Convicted murderer Robert Kosilek, who killed his wife and dumped her body in the trash at a local mall almost 20 years ago, has claimed that he needs sex reassignment surgery and that denial of this surgery for himself denotes “cruel and unusual punishment.” Yes, a federal judge agreed with him, and recently ruled that the sex reassignment surgery is the correct treatment for Kosilek’s gender identity disorder, going so far as to describe it as a “serious medical need.”

The judge’s ruling prompted a huge outcry among some legislative leaders — and the public –who say Kosilek isn’t entitled to the taxpayer-funded surgery. At least we can be thankful for that display of sanity, but that doesn’t reverse this judge’s ruling.

I’ve already filed a post in this blog about the Massachusetts drug lab scandal, and before I get to today’s news about it, here’s a brief recap.

In order to secure a conviction in most drug cases, the Commonwealth of Massachusetts must first establish, through expert testimony, that the substance that the defendant was accused of possessing was indeed a controlled substance. Before I go any further, let me again point out that as a Dedham drug crimes lawyer, I believe in our Constitution that states that all people are innocent until proven guilty. However, to prove that the substance in question was indeed an illegal drug, the Commonwealth must bring in the actual chemist from the state crime lab to testify in court as to what the substance is, and how the chemist arrived at his or her conclusion. The chemist is required to testify as to what chemical tests were conducted on the substance, what machines or methodology were used in the testing process, and the extent of his or her expertise as well as education. As a result, it is easy to see that the role of the state lab chemist in these types of criminal defense cases, as well as their qualifications and integrity, is extremely important, if not vital.

Over the past month the headlines in Boston cried out about one particular chemist who was employed in just such a capacity for the state crime lab. The bad news is that this chemist may have manipulated evidence to assure that defendants on trial for drug offenses were wrongfully convicted. Ms. Annie Dookhan has been accused of allegedly mishandling and manipulating evidence and testimony in hundreds of drug cases that were prosecuted between 2003 and March of 2012, when she retired from state employment. It has also been reported that she lied about her chemistry degree on her resume. The State Public Health Commissioner, John Auerbach, has even resigned in the wake of the scandal at the state drug lab.

Today, Massachusetts U.S. District Court Judge Mark Wolf delivered a ruling that strains legal credulity, and serves as yet another sign of liberal judicial activism run amok.

It’s a case that almost no reasonable person would even believe would even be heard in court, yet it has, and with a stunningly offensive legal outcome. A brief history: Robert Kosilek was convicted of murdering his wife in 1990; a horrific murder that saw Kosilek dump his wife’s dead body in the trash at a mall in North Attleboro. After being sentenced to life in prison, Kosilek decided that he was “really” a woman, that he suffered from “gender identity disorder,” and sued the Massachusetts Department of Correction (“DOC”) for hormone treatments. He later began receiving those hormone treatments. Subsequently, he sued the DOC because he felt that his case medically warranted the radical approach of sex reassignment surgery, in which the male sex organs are removed and female genitalia surgically “created” in their place.

The DOC refused to provide the surgery, and so Kosilek sued the Commissioner of the DOC in federal court, seeking a federal judge’s order that the state of Massachusetts pay for sex change surgery for this murder convict. Kosilek’s legal argument? That the state’s denial of this surgery constituted “cruel and unusual punishment” in violation of the Eighth Amendment to the U.S. Constitution.

Get three criminal convictions against you for a variety of violent crimes, and you’re out of luck. You will lose your chance for parole.

That’s the key message behind the tough-on-crime “three strikes” bill that the Massachusetts House voted in favor of this week. This crackdown bill basically eliminates the possibility of parole for habitual criminal offenders who are guilty of three violent offenses. In addition, those who are given more than one life sentence would also lose their chance for parole. However, the bill also reduces some mandatory minimum sentences for non-violent drug offenders, which is a legislative measure long past overdue, in my professional opinion as a Norfolk County drug charges lawyer.

Today, July 19th, 2012, the legislation heads to the Massachusetts Senate, where it is expected that it will be debated next Thursday. If this bill is eventually passed, it will be a milestone, as there’s been more than decade of stalled attempts to change the way repeat Massachusetts criminals are sentenced.

The Massachusetts Legislature has been busy debating a crime bill that would eliminate any parole eligibility for persons convicted three times of violent felonies. The general concern over allowing violent offenders access to parole has been gaining steam for several years now, but was brought to a head following the 20100 murder of a Woburn police officer by a prison inmate who had been paroled despite a lengthy history of violent offenses.

Predictably, there are two camps in this argument: Law and order advocates, who justifiably want our streets protected from violent prison inmates who have been released early on parole, and civil rights advocates, who argue that prisoners’ legal rights to parole may be eliminated in the rush to pass a strong anti-crime bill. What’s needed here is balance and perspective.

The objective of the bill is to remove parole eligibility for any inmates who have been convicted of three or more violent felonies, such as murder, or rape. That’s the very type of paroled inmate who murdered the Woburn police officer in 2010. That inmate should not have been released, and the overall approach makes common sense. But something often goes wrong between common sense and final outcomes,at least when it comes to our Legislature. As of right now, the current version of this bill would apply to almost 60 different felonies, including some that don’t typically involve violence, such as drug offenses. For example, in the current House version of the bill, a person convicted and sentenced twice for drug distribution could receive a life sentence after he or she is convicted on a third offense for, say, unarmed robbery.

The Massachusetts Supreme Judicial Court (SJC) keeps churning out some interesting decisions, this one on the subject of the privacy, or lack thereof, that inmates and detainees in Massachusetts prisons can expect in their telephone conversations.

In a 4-3 ruling, the SJC ruled earlier this month that both prison inmates, and detainees (persons who have been arrested but not yet tried,) have “no objectively reasonable expectation of privacy” in their phone conversations. The ruling means that prosecutors and grand juries may access the recordings of those phone calls. The ruling applies to all kinds of detainees and inmates, from those accused of assault and battery to those convicted of sexual assault, rape and drug offenses.

The majority opinion, written by Justice Roderick L. Ireland, ruled that due to the fact that inmates and detainees are informed when they are first incarcerated that their calls are being recorded, “no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.” The decision affirms a contempt order issued previously against Suffolk County Sheriff Andrea Cabral by Suffolk Superior Court Judge Thomas E. Connolly. Cabral had previously declined to provide a grand jury with telephone recordings of a particular pretrial detainee, even though she had received a subpoena for them. According to the decision, Cabral supported turning over the tapes to the grand jury, but was concerned that an unrelated Superior Court decision “called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees’ and inmates’ telephone calls.” It was through her act of refusing to turn over the calls, that she sought a clarifying opinion from the SJC. And she got it.

The Massachusetts Supreme Judicial Court (SJC) recently announced that, from July 20 2009 forward, judges will generally be required to issue rulings within 30 days of the completion of any civil commitment proceeding sought by the Commonwealth against someone previously convicted of rape or a sexual assault crime. On many occasions, when a person who has been convicted of rape or a crime involving sexual assault is nearing the end of his (or her) criminal prison sentence, a District Attorney’s office may seek a civil commitment of that prisoner, indefinitely, as a “sexually dangerous person (SDP)”. Prosecutors are allowed to do this under a specific statute, M.G..L. Chapter 123A, known among Massachusetts criminal defense lawyers as the “SDP statute.”

When a prosecutor moves for such a civil commitment, the District Attorney’s office seeking the commitment is essentially saying to a judge, “While this convict may have served out his criminal prison sentence, he (or she) remains a sexually dangerous person, and should not be released to the public, but committed civilly at a facility to treat sexually dangerous persons.” That civil commitment facility, by the way is almost always Bridgewater State Hospital. The court issued the ruling in the case of a man who had previously been convicted of child rape and indecent assault and battery on a child. Shortly before he was scheduled for release from prison in 2002, prosecutors moved to have him civilly committed to the Bridgewater facility. Superior Court Judge C. Brian McDonald heard the commonwealth’s request in 2004, but did not subsequently enter judgment in the state’s favor until 13 months later. In the meantime, the convict was held incarcerated at Bridgewater State Hospital.

The SJC affirmed the lower court’s decision, finding that sufficient evidence had been presented to prove that the convict in question, a Joseph Blake, was a “sexually dangerous person” and also that the 13-month delay before the judge issued his decision did not violate Blake’s due process rights. However, the court went on to rule that the delay was “unacceptably long.” Consequently, the court announced that henceforth judges must make decisions in sexually dangerous person proceedings not later than 30 days after the end of trial, absent “extraordinary circumstances.”