Articles Posted in General

Thinking about Halloween this past weekend, brought me back to when I was a kid growing up in Brookline, Mass. People decorated their homes with pretty standard Halloween stuff: Gravestones that say “RIP,” ghosts hanging from trees, spider webs, and pumpkins. For all of my life, these are the kinds of things that signified Halloween. Scary? Hardly. But these things have always been associated with Halloween, and they always did the trick. Little more was needed.

That’s why, as a Boston, Massachusetts criminal defense lawyer, I’m appalled – and disgusted to be more exact – at how the commercial Halloween haunted house business has grown to a billion-dollar a year business, and how it goes to extremes to attract customers.

Live-actor displays involving:

I defend people accused of crimes. Some of those crimes involve drunk driving. A surprisingly high number of those arrests can be remarkably benign and legally unjustified, and in those cases I am proud to fight my hardest to bring out the facts and to defend my client’s legal, constitutional rights. Almost all the time, no one is injured in these cases, and the persons that I represent are not low-life social reprobates.

But if you’re in the mood for an outrage-inducing legal story, read on. Just be ready to spit nails in anger or disgust. I wouldn’t blame you if you did.

The bare facts: Drunken driving case. Four people killed. Horribly grieving victims left forever more without their loved ones. Nine people injured. Two gravely; one so gravely he cannot move or talk due to brain injuries suffered in the carnage. He probably never will; his fate is in a way worse than death: Completely paralyzed, he can apparently communicate only by blinking his eyes to signal “yes” and no.”

What is wrong with people in this country and in this state, that they won’t get the message that texting and smartphone use while behind the wheel, is a death wish? I’ve asked that question so many times that I’ve lost count, because no matter how much carnage occurs on the roads due to distracted driving in Massachusetts, and what laws are passed, people just can’t seem to put these foolish things – that were originally invented to make our lives easier, but which in fact have taken ourselves over like some kind of addiction – down while driving.

As a Boston, Massachusetts distracted driving lawyer, I’ve seen too many examples of Massachusetts motor vehicle accidents caused by texting and driving. Many of the injuries that result from texting and driving accidents are extremely serious. The motorists who pass by the scenes of these accidents gawk with typical curiosity, but does it cause them to change their own behavior? Shockingly, almost never. Perhaps one of those onlookers has been you?

An estimate by the National Safety Council claims that over 213,000 car accidents in the U.S. in 2011 involved texting while driving, 53,000 higher than in 2010. The Centers for Disease Control and Prevention estimates that nearly a third of Americans had either e-mailed or texted on while they were driving in a one month period. Many think they’ll get away with it unscathed and unharmed. Many more are wrong — dead wrong.

In my last post on this subject, I wrote of the literally unbelievable torture intentionally inflicted on an innocent dog, named Puppy Doe by the Animal Rescue League doctors and volunteers that tried, to no avail, to salvage its broken body and life. Police investigators have so far discovered that the female puppy was sold by its original owner on Craigs List, after the owner was reportedly told by her landlord that she could not keep a pit bull in the apartment she was renting. So, what did she do? Reportedly sold the dog on Craigs List. Except that she didn’t know who she was selling to or what their background was.

Horrifically, the buyer was a monster that happened to look human. Unimaginably, it was the sole intent of the buyer – some sick, twisted sub-human animal or animals – to buy the dog for the specific purpose of torturing it. What was done to this dog over at least the next two months was so horrific, that words cannot describe it. Doctors at Boston’s Animal Rescue League described a dog that had been intentionally starved down from a normal weight of 40 lbs. to less than 18 lbs. The animal had several broken bones, all over its body. Its skull had been perforated. Its nose had been repeatedly burned by cigars or cigarettes. Its tongue had been sliced apart to resemble a serpent’s. It’s limbs had actually been drawn and quartered, in medieval fashion, as though it had been torn apart on a rack. Veterinarians treating the dog described this case as “the worst they have ever seen.

Like me, you must be shaking right now, unable to imagine the twisted scum that would do this: The sociopathic, psychopathic garbage that would do anything even resembling any of this nightmare, made real. You must be asking yourself, “What in God’s name could cause anyone to do such things? How could any human being do this?”

People across Massachusetts, and even the nation, are collectively appalled and sickened by what has become known as the “Puppy Doe” case here. For readers who don’t yet know, a dog was found on a roadside in Quincy, Massachusetts on August 31, barely alive. The female dog, estimated to be a little more than one year old, weighed about one-half of its normal weight, and was near death.

But when the dog was brought to the Animal Rescue League of Boston, that was nowhere near the horror that was to be discovered by veterinarians there. This poor animal had suffered multiple broken bones as well as multiple burns to her nose and stab wounds to her eye. The barbaric animals who did this to this innocent creature, didn’t stop there. It appears they actually cut her tongue, in a sadism-filled, barbaric attempt to create a serpent or snake-like split in her tongue. When they were “done” with his poor animal, they dumped her on the side of a road. Ultimately, the dog could not be saved due to this torture, and had to be euthanized.

After this story broke, people from across the United States began thinking of ways that they could help in efforts to locate these sick beings who committed this heinous act of pure sadism. The Animal Rescue League of Boston received 500 calls as of Saturday (September 21) from callers wanting to know how they could help in the search for the criminals who did this to this innocent animal. In response, yesterday the Animal Rescue League posted a $5,000 reward for information in the case. I was just one of many people across the U.S. who have donated to this reward fund. I urge all my readers to do so, and anyone wishing to donate to the reward fund should visit: www.arlboston.kintera.org/puppydoe.

The world lost a brilliant mind a week ago today, when Aaron Swartz, the 26 year-old internet prodigy who at age 14 invented the ubiquitous internet feed RSS, as well as internet company Reddit, took his own life. Swartz was no “average person,” but an internet prodigy and genius who was gifted with the kind of genius rarely found in the world, on the level of a Steve Jobs.

While we may never know the precise reason or reasons that Swartz ended his life, to borrow the term genius here, it doesn’t take any kind of genius to see the causal relationship between Swartz’ suicide and his prosecution – many say persecution – by the Boston office of the U.S. Attorney’s office, headed by Massachusetts U.S. Attorney Carmen Ortiz. The media and the twitter sphere have been abuzz for seven days now about what has widely been called an overzealous prosecution of Swartz by Ortiz’ office. Despite a blog post written by a George Washington University Law professor which argued that no prosecutorial overreach occurred – which somewhat curiously and conveniently appeared 72 hours after Swartz’s death – the overriding consensus now appears to be that Ortiz’ office was far too aggressive and unyielding against this young man, who tangibly hurt no one.

This conclusion includes the editorial board of The Boston Globe, who wrote on today’s editorial page, “In piling on 13 charges and thereby threatening Swartz with up to 35 years in prison, Ortiz’s office went way, way too far.” Equally disturbing is the fact that Ortiz and her deputy prosecutors were made well aware of Swartz’ vulnerable mental health status – that his genius was tragically co-occupied by depression, and that the stress of this wildly over-charged case was bearing down on him heavily. Boston attorney Andy Good, who was one of three lawyers who at various stages represented Swartz, told the Boston Globe that he warned the deputy prosecutor handling the Swartz case of his client’s vulnerable mental health status. Atty. Good told the Globe’s Kevin Cullen, “The thing that galls me is that I told (Assistant U.S. Attorney Stephen) Heymann the kid was a suicide risk,” “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.”

Surrounding all of the very necessary legal reactions to the scandal surrounding the Massachusetts state drug lab – centrally, the need to ensure that defendants who were convicted through drug samples handled by lab suspect Annie Dookhan receive the necessary legal review of their cases – one glaring omission seems to be occurring.

The trial court system in Massachusetts has for a long time been bursting at the seams with enormous case loads. The civil dockets are extremely busy, and the criminal dockets grow exponentially every year. To try and process these cases in an average workday, 9:00 AM to 5:00 PM, is already a Herculean task that few people outside the court system can appreciate. Now, out of the blue, this drug lab scandal has fallen in the laps of prosecutors, judges, and the Trial Court administrators who manage the courts every day. It’s been estimated that possibly tens of thousands of cases may need to be re-brought before courts in Massachusetts – most of them in the Boston area and eastern Massachusetts – just to review and handle these drug cases, alone. It’s an incredibly burdensome challenge to manage.

As a Dedham, Massachusetts criminal defense attorney, I see it every day in courts across eastern Massachusetts. The Administrative Office of The Trial Court, which is the state agency that manages the day-to-day operations of the state’s trial courts, has assigned special judges to hear the massive amount of these drug cases that require review and possible re-trial.

If you’ve never been arrested, chances are you don’t fully understand what a plea bargain is and when and if one might be used to your advantage after being arrested. Understanding strategic issues like this will assist in your defense by any Norfolk County criminal defense lawyer that you may hire.

In essence, a plea bargain, which is formally called a “Tender of Plea” or informally a plea agreement, is an agreement in a Massachusetts criminal case between the defendant’s attorney and the particular District Attorney’s Office that is prosecuting the case. Under such an agreement, the defendant agrees to either plead guilty to, or to not contest a specific criminal count(s) in exchange for some type of concession from the prosecutor. What this typically means is that the defendant typically pleads guilty or “Admits To Sufficient Facts” to a less serious crime(s) than the one(s) he was originally charged with. An “Admission To Sufficient Facts” is also called a plea entry of “Continued Without A Finding,” or “CWOF.” When a CWOF is agreed to, it means that the defendant essentially admits that the District Attorney’s Office has sufficient evidence against the defendant that, if the case were to go to trial, the prosecution would be able to prove the charges against the defendant.

When a criminal defense attorney advises a client to enter such a plea agreement, it is almost certainly done because the attorney does not feel that a trial is likely to result in a finding of not guilty by either a jury or judge. These plea agreements are employed when the prosecution’s evidence against the defendant is so strong that a trial on the merits is not legally advisable. In such instances, the defendant can receive a strategic benefit: In exchange for his plea bargain, the defendant receives either a reduction in the charges against him, a recommendation from the prosecutor for a more lenient sentence, or dismissal of additional charges that were originally brought against the defendant. For example, a criminal defendant who is charged with a felony that carries a state prison sentence upon conviction – for example, Grand Theft Larceny in Massachusetts – might be offered the chance to plead guilty to a less serious misdemeanor theft charge instead. The upside here? The misdemeanor conviction may not require a jail term.

In my previous two posts on this very important subject, I wrote of why this critical ballot question in Massachusetts should pass. In the first of these posts, I explained why I chose to write of this subject in this blog devoted to Massachusetts criminal law (as opposed to civil law,) and the reason was this: Because to deny terminally ill, suffering patients the right to direct the manner, means and timing of their own death, when they are terminally ill and suffering, should be a crime. In my opinion as both a Massachusetts defense attorney and as an individual citizen, the denial of this human right is truly unconscionable. Legally, it isn’t a crime. But morally, it should be.

My final post on this subject will be devoted to how opponents of this most modest and reasonable of proposals spin this issue, to create a maximum of fear and a minimum of truth in their quest to defeat this compassionate and reasonable public policy measure. In the interests of full disclosure, I should say here that I’m in a unique position to know how to design and execute political issues campaigns, as prior to practicing law I used to work full-time professionally as a lobbyist and Public Affairs Director for a statewide bar association. The opposition’s campaign strategy here rests largely on hijacking two largely ubiquitous human traits in most all people: Religion and fear. Exactly how do they hope to defeat your and my rights to direct the end of our lives if necessary? Take a look, as follows:

Strategy #1: Diction and language are critical. Keep repeating – as many times as literally possible (in print) or orally possible (if radio or TV) – the words “SUICIDE” and “KILL.” As in, “This measure would legalize assisted suicide and allow people to kill themselves.” This is designed to more than just subliminally infect the listener or reader with the most negative of emotions and visualizations: That a healthy and vibrant – but mentally unbalanced person – is “committing suicide,” and wishes to “kill himself.” These terms, repeated nonstop, fill the reader or listener with the typically negative, depressing and disapproving emotions normally associated with suicide. This is understandable, when a person is physically healthy but mentally ill, but those factors are completely inapplicable and irrelevant to this ballot question, which deals with people who are terminally ill, suffering, and who have been attested to by separate physicians as possessing the mental and emotional capacity to make this decision. But these facts don’t matter to the opponents of this measure. In every debate, in every forum, at every chance, they repeat the words “suicide” and “kill.” As a result, the undecided – and more importantly uninformed – voter is subconsciously filled with negative and disapproving emotions. Worse, he or she may not even consciously understand why these emotions have surfaced, since this psychological tactic exerts its force and influence largely on the sub-conscious or pre-conscious level. Note that the far more truthful, accurate terms of “assisted dying” and “death with dignity” — are intentionally, strategically never used.

In my previous post on this subject, I discussed the current ballot initiative that Massachusetts voters will have the opportunity to vote on in November. Specifically, I wrote of what opponents of this measure have had to say in “justifying” their opposition to a measure that I and many others feel no rational person could honestly object to. When will these pious “moralists” wake up and realize that this measure, like legal measures in Washington state and Oregon, would simply give terminal patients the right – if THEY elect to and NO ONE ELSE – to ask physicians for medication to bring about a peaceful death if THEY find that THEIR suffering – whether mental or physical – is unbearable and cannot be relieved. As Marcia Angell, Senior Lecturer at Harvard Medical School, has said: This option is not a choice of death over life, but of the timing and manner of an already inevitable death.

Personally, I don’t think this measure goes anywhere near far enough in terms of expanding the class of patients who would receive the right to request such medication from a physician: The proposal only gives this right to patients who have been certified by multiple physicians as having no more than six months to live. While I certainly support that approach very much, what of the patient who has been diagnosed with a terminal illness and is suffering mentally or physically as a result of that disease – but will not likely die for years due to the particular nature of the disease involved? Two obvious examples: Lou Gehrig’s Disease (otherwise known as ALS,) and Alzheimer’s Disease. These are diseases that slowly and horribly rob the patient of his or her dignity and purpose in living, but don’t produce actual death for perhaps many years after diagnosis. Lou Gehrig’s Disease slowly destroys the body’s muscles from the extremities, inward: It starts from the fingers and toes, until it reaches the heart and lungs. Victims can expect to be slowly robbed of their ability to enjoy life, until they are completely and totally incapacitated, diapered and catherized, unable to move at all. In almost all cases, victims can expect to be suffocated to death, as their lung and chest muscles will no longer be able to expand and contract to take in air.

The duration of this process until actual death takes place? Usually several years – perhaps as many as five to seven or more. If such a patient wants to endure this experience until the very end, that is his or her absolute right. But what is such a patient to do if he or she receives such a death sentence and decides that they don’t wish to die in this prolonged, horrible way? What if such a patient were a portrait artist or concert piano player, and decided that after he loses the use of his arms, he does not wish to go on? Or a lifelong marathoner who decided that after he lost the use of his legs, he did not wish to endure the further suffering to follow? Under this proposal, these patients would have no options until the point arrives where multiple physicians are willing to state that they have no more than six months to live. That could involve years of mental and physical suffering.