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In my previous post, I explained the Massachusetts SJC’s ruling last week on the contretemps surrounding the question of whether or not the Massachusetts Commission on Judicial Conduct can allowably inquire into a judge’s reasons for his or her rulings. The issue arose because the Judicial Conduct Commission had launched an inquiry into one of the judges in the Boston Municipal Court following allegations of bias filed by the Suffolk County District Attorney.

Surprisingly enough, as a Dedham, Massachusetts criminal defense attorney, I disagree with this decision. I know that my colleagues in the criminal defense bar will disagree strongly with me, but I can’t agree with this decision. My opinion isn’t pro-prosecution, nor is it pro-defense. Nor am in any way saying that judges should be required to explain their reasoning if litigants, prosecutors or defense counsel don’t like a particular judge’s ruling. Such would be ridiculous. The Judiciary was designed to be independent for good reasons. Under typical, day-to-day “normal” circumstances, I don’t believe judges should have to explain their reasoning to litigants, to disaffected parties, or to the media.

However, the circumstances presented in judge Dougan’s case are anything but “normal” – and I don’t think that an honest advocate for either side of this argument can claim otherwise. The SJC’s ruling here can just as easily be used against criminal defense attorneys one day. Or against minorities, or women. Consider this: What if a judge somewhere in Massachusetts were to routinely – in almost every case that came before him or her – rule against black defendants. Or against women. Or against the members of any particular ethnicity or group. Let’s assume a judge were to rule this way no matter the evidence, and let’s say it happened in almost 100% of the cases before this hypothetical judge. In such a circumstance, such a judge would be essentially unstoppable. And that is not good public policy.

Sorry I’ve been absent for a little while. With the summer waning and the heat still high, I took a few days off for the beach.

OK, back to work: The Supreme Judicial Court’s (SJC) ruling is finally in on the dispute surrounding the subject of whether the Massachusetts Commission On Judicial Conduct (otherwise referred to as the “Judicial Conduct Commission or “JCC“,) can inquire into the reasoning behind a particular judge’s decision (or decisions.) The Judicial Conduct Commission is the state government body that is empowered to investigate various allegations of wrongdoing by state court judges, whether that wrongdoing is on or off the bench. The operations of the JCC are highly secretive, for the purpose of protecting the independence of the judiciary and its members.

This ruling is sure to fuel a lot of talk radio time and fill a lot of space in the blawgosphere, so let’s get to it.

By now, most people know that Governor Deval Patrick has agreed to sign the “Three Strikes” crime bill that the Legislature originally delivered to him last week. He had sent the bill back to the Legislature with an amendment to provide judicial discretion in sentencing certain habitual offenders who have been convicted more than three times for almost 40 violent crimes. The Legislature rejected that amendment, very quickly.

Patrick claimed he requested the amendment after Supreme Judicial Court Roderick Ireland responded to Patrick’s written request for clarification of the Legislature’s final bill, opining to the governor that the law could lead to an overly-crowded appeals docket, given the lack of judicial discretion in the bill. Whatever his motivation, the Legislature kicked what many saw as his attempt to “water-down” the bill by allowing parole in certain cases instead of life imprisonment, right back at his doorstep.

I think the governor made the right decision in signing this bill as is. As Norfolk County criminal lawyer, as a rule I do not approve of mandatory sentences, and I have written previously about this subject in this blog. However, there can be exceptions to a rule, and I don’t see the objections or problems that are typically presented with mandatory sentence provisions, in this particular bill. The reason for that is that the only defendants who are going to end up in the situation of facing a mandatory sentence of life in prison without possibility of parole, are the worst offenders imaginable. Serial criminals who are extremely violent, and who have already been convicted three times or more for the most heinous, violent of offenses. Any defendant in that position has pretty much already earned his stripes as a serial, unrepentant, violent criminal. Such people belong behind bars for life. Yes, I can say that, even though I’m a criminal defense attorney. My chief concern is that every defendant, no matter what he or she is charged with, receives a fair trial with a competent defense attorney. If those requirements have been met and a defendant has been convicted three times of extremely violent crimes, I don’t have a problem with a mandatory sentence of life in prison with no parole.

In my profession as a Norfolk County criminal defense lawyer, there are times when someone I am representing – the defendant – under my advisement, will enter a plea of “Admission to Sufficient Facts.” Since most people do not know what this means, here is a brief overview.

When a defendant enters a plea of “Admission to Sufficient Facts,” he or she is, in essence, admitting that if the case were to go to trial, the prosecution would be able to present sufficient evidence to secure a guilty finding, from either a jury or judge. Instead, subject to the prosecutor’s agreement, the defendant enters a plea of “Admission To Sufficient Facts” instead of actually pleading guilty. This procedure comes from an old trial system and it has been abolished by the state legislature in Massachusetts. However, it is still used by defendants as a way for the defendant’s case to be continued without a guilty finding (which I’ll further explain in a moment). This form of plea may be refused by the judge, or it may be conditionally accepted upon the compliance of the defendant with certain requirements advanced by the prosecution.

The types of charges that a defendant to plea Admission To Sufficient Facts to are several. They can include, as a partial list, armed robbery, larceny by stealing, OUI (drunk-driving), domestic violence and kidnapping.

In a stunning reversal of the way that things have been done in our legal system in the past, the Massachusetts Supreme Judicial Court now has two words for defendants who “claim” to be indigent, and need a free, court-appointed lawyer: “Prove it.”

That’s right. You see, prior to this landmark decision this past week, almost anyone could claim to be indigent (poor,) and get a court-appointed public defender, simply based on that person’s claim of “indigency.” The Massachusetts Probation Department is principally responsible for “vetting” (determining) if a defendant really qualifies for public counsel, and little in the way of serious documentation is needed to prove this claim.

This method has been rife with problems. As a Dedham and Boston criminal defense attorney, I see it all the time in the courtroom. Many criminal defendants, who don’t want to pay on their own for an attorney, simply make a claim of indigency, and faster than you can say “lawyer,” that defendant is almost always appointed a public defender (known in the court system as a “bar advocate.”) Defendants claiming indigency typically only have to fill out a form claiming his or her unimpressive financial status, and that defendant is almost routinely appointed a free lawyer to represent him or her. In my view as a Norfolk County criminal lawyer, that takes public defense funds away from the truly poor people who do need it, and that’s just not right.

Previously in this blog, I’ve written about Secure Communities, the information-sharing program developed by the Immigration and Customs Enforcement (ICE) Division of the U.S. Department of Homeland Security.

Secure Communities allows local police and FBI personnel to share fingerprint and other identifying information on on someone who is arrested with federal immigration officials. For many years, it has been standard practice for local police to routinely forward fingerprints of people who they have arrested to the FBI for routine criminal background checks. The major gap with that procedure? Federal immigration officials were never given that information; they were always out of the loop. The result: Many illegal immigrants who had committed numerous crimes, including violent crimes, remained here illegally. Through the Secure Communities program, the FBI will now share those fingerprints with immigration officials to identify illegal immigrants for deportation, especially violent criminals and repeat offenders.

In my prior post on this subject, I generally supported Secure Communities, albeit with some concerns about the potential for non-violent immigrants to become subject to deportation in the effort to identify illegal immigrants who are also violent criminals. On the whole, I supported this program, with some cautionary comments.

There’s a general consensus that our current crime laws are not current at all.

That’s certainly the belief of State Representative John H. Rogers of Norwood, who has recently demanded that the Massachusetts House of Representatives pass a crime reform bill. This bill is meant to update and reform existing Massachusetts laws, and would, according to its supporters, allow public safety officials and prosecutors to better solve cases and better perform their jobs.

The bill would address Massachusetts parole, Massachusetts sex offenses, Massachusetts gun and firearms violations, Massachusetts domestic violence charges, and Massachusetts wiretaps.

In the sad and messy wake of former Rutgers University student Tyler Clementi’s suicide death after his roommate Dharun Ravi, surreptitiously videotaped a sexual encounter between Clementi and another man, a more local twist on this type of case has cropped up in Boston. Thankfully, this case does not involve a suicide, or even any physical harm. But the case has dredged up a lot of interesting questions here in Massachusetts.

What’s it about? It seems that one Jaryd Rudolph, a 19 year-old football player at Boston College (full disclosure: my alma mater,) allegedly secretly audiotaped a “sexual encounter” that one of his football player roommates was having with a female graduate student in the dorm suite that the men shared. The audiotape, reportedly containing “sexual noises” made by the roommate and his girlfriend, was allegedly made available to some other people, and now young Rudolph may not be playing in any reindeer games, or at least any BC football games, anytime soon. (Sorry, but I couldn’t resist – it would be better humor if this were December.) The case has been reported around the country, including CBS News. He’s been suspended from both the football team and the school, and required by the school to undergo “educational training and counseling,” quoting a press statement from Boston College. BC characterized Rudolph’s and his girlfriend’s conduct as “inappropriate.”

Oh, one other thing: Rudolph is now a criminal defendant in Massachusetts. You see, he’s been charged with violating the violating the Massachusetts wiretapping statute (Mass. Gen. Laws Ch. 272, § 99.)

First, let me say that there hasn’t been a post here in a while, and I’m sorry about that. December saw me distracted with an extremely busy combination of court appearances, trials, and a vacation beginning December 20 – all of which caused me to be extremely busy. However, there was an additional matter requiring my time and attention, that I’d like to let my clients and readers know about, now that that work is almost completed.

That additional matter is the redesign and reorganization of my present one website (click on the “Website” tab above if you haven’t visited there yet,) into a stand-alone website dedicated entirely to Massachusetts criminal law (presently, the site includes both criminal law and personal injury.) The new website will have all the same valuable information as the present one, with added features and a lot more valuable content that can assist you with a wide variety of questions about Massachusetts criminal law.

The new web site should be up and live on the internet by Wednesday, January 18 at the latest, so please, check it out and call me if my firm can be of help to you!

The U.S. Department of Homeland Security (DHS,) in its understandable efforts to rid our cities and communities of immigrants who have committed violent crimes, has developed an interactive cross-referencing program with local police and law enforcement departments, known as the Secure Communities Program. The program is administered and enforced by a division of DHS, which is U.S. Immigration and Customs Enforcement (ICE.) This collaborative effort with local police departments requires that fingerprints obtained from arrests made by local police be automatically cross-referenced with federal immigration databases at ICE. The objective is to identify immigrants with serious and violent criminal records, and use that criminal record as the basis for deporting that person. (While deportation of an immigrant following conviction of a crime is not always done, federal immigration laws do allow for deportation if an immigrant has been convicted of a crime. The Secure Communities Program builds upon that legal foundation.)

On the surface, this approach sounds like common sense. I believe we should deport immigrants who have come here promising to obey our laws, only to commit violent crimes and infect our communities with fear and all the related consequences that violent crime brings to communities. Except that as with so many government programs, good intentions and common sense often get lost in the process of bureaucratic program enforcement. Exhibit A is ICE’s Secure Communities Program: Under the present program structure, an immigrant who is arrested and has a record of any criminal convictions at all – minor or major, nonviolent or violent – is subject to immediate deportation by DHS. Translation: If an immigrant were arrested for a traffic violation, and a fingerprint check showed that he or she was previously convicted of passing a bad check, that person would be deported. This enforcement scheme contradicts and confuses the laudable objective of the Secure Communities program, which is to rid our communities of immigrants who have been convicted of violent crimes.

For this reason, a considerable number of cities and towns across the U.S. and in Massachusetts have had second thoughts about participating in the Secure Communities Program. The City of Boston has been one of those municipalities. The original idea of the DHS/ICE program is a good one, and despite calls for the program’s dismantling, the original goal should not be abandoned. Instead, the program should be re-written to develop specific legal criteria, listing precisely what types of prior offenses constitute a “violent crime.” By no means do I suggest that the list be unnecessarily short, or that the list comprise only extremely violent crimes – only that hearings be held and a consensus reached as to what crimes are to be defined within the Program as meeting the definition of “violent” crimes, and hence subjecting the person arrested to deportation by DHS & ICE. Such a list of crimes, obviously, would include Massachusetts rape, Massachusetts sexual assault, Massachusetts kidnapping, Massachusetts assault and battery and, Massachusetts gun and firearms violations and of course, Massachusetts attempted murder and murder. Further, the final list would of necessity include more violent offenses than listed immediately above.

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