Here in Massachusetts and indeed across the country, most of the public who have watched the sick and twisted saga of the murder of young Bella Bond, are understandably outraged at the extremely lenient sentence that the dead girl’s mother, Rachelle Bond, was given today by a Massachusetts Superior Court judge. That sentence? Time already served while incarcerated in this matter – approximately 2 years – plus 2 years of probation & drug monitoring. She will walk free by this Friday, into a rehab program at a halfway house. Continue reading
A lot has been reported in the media and debated since Aaron Hernandez – by all present appearances – committed suicide this past Wednesday. Most of the debate has surrounded the public’s confusion over this business that Hernandez’ suicide means that he was “not guilty” over the murder of Odin Lloyd (which of course, he was convicted of in April 2015.)
So, what’s this all about? A very old and little-used Massachusetts law, that’s what. Its formal name is“abatement ab initio,” and it loosely translates to “removed from the beginning.” It is a common law which has its roots in British law, when Massachusetts was still a British colony. The legal rationale behind this law was that, since it was possible that someone’s conviction might have been legally defective in some manner, that person should have the right of a full appeal – and that if some intervening event prevented that appeal (such as the convict’s death,) then the person’s name should be legally “cleared.” Massachusetts is only one of a handful of states in the U.S. that either still have this common law on the books, or that still recognize it as valid. Many states have either modified it in some manner, or nullified its applicability to present cases. In all of the states that have nullified this doctrine, it’s been done so in the name of the rights of crime victims. It’s not hard to see why. Continue reading
In the past month, I’ve been asked by some Boston-area news media to provide analysis and commentary on the Whitey Bulger trial. Now that the defense has rested and before closing arguments are offered this coming Monday (August 5 2013,) I wanted to offer some pre-closing observations of the trial:
1) I don’t understand (and haven’t understood, during this whole trial) the defense’s strategy. It has essentially been to parade a series of witnesses to the stand, but not to deny that Bulger has committed most of the crimes with he is charged. Instead,it has seemed to me that the objective has been to essentially conflate and confuse Bulger’s guilt with the actions of corrupt FBI agents in the 1970’s and 1980’s. The defense’s whole message to the jury, translated, seems to have been: “Our client is bad, but the FBI was even worse.” (in enabling Bulger and co-opting him.) Not, in my view as a Boston criminal defense attorney, the best defense that could have been crafted. Quite obviously, Bugler is not in any way an easy client to defend. I’m not saying that the defense here had a lot of options to work with.
But, in retrospect, there was one defense that in the opinion of more than one reputable Massachusetts criminal defense lawyer, would have stood at least a more plausible chance of success. Not guaranteed by any means, but at least “plausible”, which would have been: Bulger was first sentenced to prison in the 1950’s for a variety of violent crimes. While in prison at that time in Atlanta, he volunteered to be given LSD by the CIA, which was trying to determine if the drug would be useful in interrogation and intelligence gathering activities. I believe that Bulger’s lawyers could have plausibly mounted an insanity defense, arguing that his brain and mind were so damaged as a result of LSD experiments, that he could not legally appreciate the wrongfulness of his conduct surrounding the crimes with which he is charged. Remember that – legally – if reasonable doubt could be raised as to Bulger’s mental state during the period of time over which he committed these crimes – it might be possible for the jury to find that he suffered from what is legally known as “diminished mental capacity.” Not by any means a legal “slam-dunk,” but such a defense strategy would have posed, in my professional opinion as a Boston criminal defense lawyer, a slightly higher chance of success over what I have heard so far in this trial. Again, that defense has seemed to be “Whitey Bulger may be a bad seed, but the FBI was just as bad or even worse to work with him as they did.”
In the past few weeks, a number of news media outlets asked me if I would appear on air or be quoted in print as a legal analyst on the George Zimmerman trial down in Florida. I was asked by the news media to comment, obviously, in my capacity as a criminal defense attorney, not as a present or former prosecutor.
While my analyses were provided from the perspective of a defense attorney, I have had my doubts on the subject of whether or not Zimmerman did not instigate the altercation between him and Travon Martin, and whether Zimmerman truly acted purely in self-defense. Now that the verdict is in, as a Boston criminal defense lawyer I can say that I’m not necessarily surprised by the jury’s decision. This is because while most juries would find several aspects of Zimmerman’s behavior to imprudent or perhaps bigoted, reasonable doubt as to the charge of second degree murder could be found here by most jurors. However, think it relevant to point out the following, from my understanding of the record:
1) Zimmerman, after initially calling Sanford FL police, was told by the Police Dispatcher to drop back and let them respond to investigate the matter; they essentially told Zimmerman to back off, yet he didn’t obey police instructions. He pursue Martin and a confrontation ensued that ended in young Martin’s death This leads to a rebuttable presumption that he was racially profiling Martin and that he instigated the conflict between the two that led to this killing.
As a Norfolk County, Massachusetts criminal defense lawyer, a lot of people have asked me my opinion about an especially loathsome criminal convict who has re-emerged in the news lately, Charles Jaynes. If you don’t know who he is, or why he is making news right now, here’s a recap.
Jaynes was one of two men who were found guilty of the1997 kidnapping, rape and murder of 10-year-old Jeffrey Curley. Salvatore Sicari, twenty-one, and Jaynes, twenty-two, were the two men who were convicted. Jeffrey Curley was a child who had been befriended by Sicari, who lived only a block away. The two men became friendly with young Jeffrey, and took him on car rides, out for dinners. They offered to replace his bicycle after it was stolen with a new one, in exchange for sex. But the 10-year-old refused. As a result, Jaynes killed Jeffrey in the car’s backseat. Sicari confessed to his part in the murder but he insisted that Jaynes was the killer. Both men were charged and found guilty of child molestation, kidnapping and murder. Jaynes was convicted of murder in the second degree (a key to what is now going on.)
It was heinous crime that is still almost unspeakable in its savagery. Jaynes and Sicari smothered the boy with a gasoline-soaked rag when he resisted their sexual advances. As sickening as this is to think of, the two men then sodomized the boy’s body after they killed him. This innocent boy’s tortured, molested body was found in a Maine river, in a cement-weighted plastic container. At his trial in1998, Jaynes, like all criminal defendants, was entitled to a strong defense — and it was given to him at taxpayer expense. As a Dedham-Westwood criminal defense attorney, I agree with that. Jaynes got the trial he deserved, he got the defense he was legally entitled to, and was eventually convicted.
Gang members that are tried for various Massachusetts crimes – most of them violent offenses – are known to make a show of their support during these trials. A lot of people are now saying that a new ‘tool’ has been provided to friends of gang members on trial for criminal charges in Massachusetts. It might be summed up as follows: Are you a violent gang member? Do you have a good friend on trial for murder, rape, drug charges or other offenses? Want to end the trial or get him a new jury? Just pull a stunt — stab some of the key witnesses. And while you’re at it, do it near the courthouse.
That is the message that some are saying played out this week in Suffolk Superior Court, Boston. Judge Linda Giles suddenly ended a murder trial and dismissed the jurors. Why? Because in plain sight in downtown Boston yesterday, four people were stabbed near the courthouse, and two of the victims were possible witnesses in that trial. Those two people suffered injuries so serious they may not be able to testify next week.
Judge Giles did say that she was concerned that her decision could set a precedent by sending a signal that to end a trial, all someone needed to do was to attack some of its participants.
For anyone who has followed the “Mattapan Murder Trial” in Boston these past few weeks, otherwise known as the “Mattapan Massacre,” here is the first and most important question you need to ask: If you were a juror, would you believe the prosecution’s star witness, Kimani Washington?
For those who haven’t followed the case, a little background: In September 2010, in the Mattapan section of Boston, four people were shot to death and a fifth paralyzed from the neck down for life, in a robbery that involved illegal drugs. Among the dead were a 2 year-old boy and his mother. Police arrested three men in connection with the massacre: Two of them are on trial for the murders – named Dwayne Moore and Edward Washington. The third man involved in the crime, is a man by the name of Kimani Washington; he is a cousin of defendant Edward Washington. By the accounts of all who know him, even by his own account, Kimani Washington is one bad character: A career criminal who has committed crimes ranging from Massachusetts drug offenses, to assault and battery with a dangerous weapon, to robbery. The prosecutor himself in this case has characterized him as a gangster, a thug and a thief. A lawyer for one of the defendants has termed Kimani Washington as a psychopath, and a “denizen of hell.”
Oh, one other thing: Kimani Washington is the prosecution’s star witness. You see, it seems that “Kimani” struck a deal with prosecutors, where he agreed to plead guilty to the Massachusetts robbery charge, in exchange for the prosecution not charging him with murder in this case, not trying him on the robbery charge, and recommending to the judge in the case that he serve 16-18 years in prison for the robbery count. (Washington claims he took part in the robbery, but left the scene before the shootings took place.) Oh, and a few other salient facts for you to consider: In addition to the agreement not to charge him with murder, it seems the esteemed Mr. Washington extracted a few other perks to sweeten the deal for himself – including $5,000 in assistance to his mother to relocate her residence to an undisclosed location, so that none of Washington’s enemies can easily find her to retaliate against Washington; an additional promise of assistance to his mother in securing government-subsidized Section 8 housing vouchers, and to top it off, an promise from prosecutors that Washington will serve his time in an out-of-state prison, where no ‘associates’ of his from Boston will be housed, thus securing his safety in prison.
This is a horrible story about a crime which, if true, is almost beyond comprehension.
One Eldrick D. Broom, 27, pleaded guilty this past week in Suffolk Superior Court to charges of the November 21 2011 aggravated rape and first-degree murder of Ms. Rosana Camilo, a mother of three who came to Boston so that her young son could receive medical care here. According to prosecutors, Camilo’s 16-year-old daughter found her mother’s lifeless and partially nude body in a rear bedroom of the apartment that Ms. Camilo lived in on Fairlawn Avenue, Boston. Broom was apprehended after an investigation produced DNA evidence linking him to the rape and murder, and he was ordered held without bail. But according to police investigators, that’s not how Broom was dealt with by the courts previously.
Broom was reportedly arrested in August on charges of assault and battery, after he was accused of beating up his pregnant girlfriend, who also lived in an apartment near where Camilo lived, according to police. He pleaded not guilty to that charge, and was free on personal recognizance when Ms. Camilo was murdered. Approximately a week after Ms. Camilo’s murder, Broom was also arrested in Brookline, this time on charges of open and gross lewdness and disorderly behavior after he allegedly urinated in public, according to court records. He was also released following that charge.
The conviction of a Massachusetts murder defendant was recently overturned by the Massachusetts Supreme Judicial Court, for a rather interesting reason. That reason centered on a suspect’s constitutional right to counsel while in police custody.
The defendant, Jerome McNulty, was arrested by Salem police on the morning of March 29 2001, for the murder of his girlfriend. The time line of what followed was key to the SJC’s decision to overturn the conviction: Upon McNulty’s arrest, he was read his Miranda Rights. A custodial interrogation was then conducted at approximately 9:12 AM, by a Salem detective and a state police sergeant. The interrogation took a break at approximately 10:00 AM. The defendant had told police when he was arrested that he did not have funds for an attorney, and at approximately 10:27 AM, an attorney was appointed to represent him. That attorney repeatedly called the Salem police station, asking to speak with McNulty, but he was told that the defendant was unavailable. On one occasion when the attorney called the police station back, he was told by a booking officer – the very same booking officer that had booked McNulty – that she could “neither confirm nor deny” the defendant’s presence at the police station. In other phone calls the attorney made to the station in attempting to speak with the defendant, the attorney was told that he’d have to speak with the department’s public information officer, and was transferred only into that officer’s unattended voice mail. In each and all of the attorney’s phone calls to the police station, he repeatedly asked police staff to pass along a specific message to the defendant: Do not say anything to police investigators.
Clearly, the police officers involved were engaged in an orchestrated effort to prevent any messages from the attorney, ultimately getting to the defendant. The defendant ultimately did not receive the attorney’s phone messages until 10:45 AM, and by that time had already signed a statement essentially admitting to the murder. The attorney arrived shortly thereafter, and was prevented from seeing the defendant for an additional 20 minutes while police investigators wrapped up getting the defendant’s signed statements.
The suicide early Monday morning of accused “Craigslist Killer” Phillip Markoff forever ends any possibility of hearing from this man’s own mouth, the story of what brought death to a troubled young woman making her money as a prostitute, Julissa Brisman, and what brought down the life of a promising young future doctor. Two lives, from very different worlds, are both now ended. Many people would (and in fact, presently do) argue that Markoff’s death is a further loss to young Brisman’s family, who will now be denied seeing justice done in a court of law, but that his death is no great loss to the world. Perhaps both of those observations are true.
I do not write this post to argue that Phillip Markoff’s death is a great loss to anyone other than his family. On a legal level, a strong argument can perhaps be made that his suicide evidences the ultimate demonstration of what we lawyers call “consciousness of guilt,” concerning the murder charge against him. From the evidence made public to date, it doesn’t appear – however horrific the end result was for Julissa Brisman (and it certainly was,) – that Markoff was a savage, cold-blooded killer who set out in advance to kill this woman (or anyone.) As a Boston criminal defense lawyer, trust me, I’ve seen those kinds of cases, whether involving murder, rape or other violent crimes.
Rather, in meeting with prostitutes from Craig’s List, often in upscale hotels, Markoff was carrying out an interesting con game, to feed a bad gambling habit that he played out, so to speak, at well-known gambling venues like Foxwoods Resort and Casino, as well as possibly Las Vegas. It appeared that Markoff constructed a rather creative ploy to obtain cash to feed this gambling habit. The idea was to meet prostitutes in private hotel rooms, then spring a gun on them to rob them of the considerable cash that prostitutes are known to carry. The “benefits” to this plan, from Markoff’s view? 1) No witnesses (since the robberies took place behind closed doors); 2) Since the victims were engaging in illegal activities (usually prostitution, offered under the cover of “massage services,”), the victims would never call the police or hotel security; 3) He walked away with lots of cash to feed his gambling lifestyle.