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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.

“Justice Delayed is Justice Denied” is generally speaking an accurate truism. But in some cases, not so. Legal events this past week in Falmouth District Court make clear that exception.

Thirty years ago, in January of 1980, a woman by the name of Frances Carriere was found murdered in the bathroom of her Bourne, Massachusetts home. She had been stabbed three times in the lungs and heart. From the beginning, her then-estranged husband Edmond T. Carriere, whom Frances had been separated from, had been identified by authorities as a suspect. However, Edmond Carriere had been in Florida at the time of the Massachusetts murder, and police were not able to establish sufficient evidence to charge him with involvement in his wife’s murder. In 1982, a friend of Edmond Carriere’s by the name of Richard Grebauski was indicted by a Barnstable County Grand Jury in connection with Carriere’s murder, but the charges were dropped in 1983 when Philip A. Rollins, the then-Barnstable County District Attorney, determined there was insufficient evidence to go forward with the trial. From that point until 1999, while the case remained technically open, no progress was made, and most of the previous investigators on the case had either retired or died.

Then, in 1999, a state police sergeant by the name of Paul White who was then assigned to the Massachusetts State Police cold-case squad, and a trooper by the name of Chris Mason, took up the investigation anew. In April 2000, a special Grand Jury was appointed to examine evidence in the case. In 2001, Carriere’s four adult children also hired a private investigator by the name of Terrence O’Connell to investigate their mother’s murder. All these efforts yielded new results: In 2003, two men were indicted by a Barnstable County Grand Jury for the murder of Frances Carriere: Richard Grebauski, of Wareham (the same individual who had narrowly avoided being tried for Carriere’s murder in 1982,) and a Steven Stewart of Brockton. In 2004, curiously, Richard Grebauski died in a motorcycle accident while visiting none other than Edmond Carriere in Florida.

Today, John Odgren’s defense lawyer rested his case in the murder trial of the now 19-year-old young man who is accused of fatally stabbing 15-year-old James Alenson in a bathroom at Lincoln-Sudbury High School three years ago. As a Norfolk County Massachusetts criminal defense lawyer, I can assure you: Odgren’s lawyer has his hands full with this case.

During the past week, Odgren’s lawyer has called three mental health experts to the stand, (as well as the defendant’s own father,) to bolster Odgren’s insanity defense, claiming he was psychotic and delusional when he killed the Alenson boy. As I said, Odgren’s lawyer has his hands full – as does any defense lawyer advancing an insanity defense. The public – and the members of the public who constitute juries such as the one to decide Odgren’s fate – are very hostile to the insanty defense. The reason for this is largely owing to a misunderstanding of what “not guilty by reason of insanity” legally means, and what the legal consequences are to a defendant so adjudicated. “Not guilty by reason of insanity” does not mean that the jury found that the defendant did not commit the act he was charged with. Nor does this verdict mean the defendant is “innocent.” It means only that the defendant, when committing the crime he was charged with, was so mentally ill at the time he committed the crime, that he could not appreciate the criminality of his conduct or control his actions to conform to the law. More on that later in this post, but for now trust me – the defendant is not set free.

Last week, the prosecution produced its own psychiatric experts when it presented its case, but today the prosecution produced a particular rebuttal witness, and I was rather surprised at the relatively weak professional credentialing and minimal professional experience associated with this expert. In testifying for the Commonwealth, psychiatrist Dr. Alison Fife agreed with the defense’s psychiatric experts that Odgren suffered from mental diseases and defects, but disagreed with their assessment of his competency.

It’s stories like today’s, which would make anyone outside of the profession of criminal law or law enforcement, pause to wonder what it is inside people that causes them to sometimes act the way they do. Not me. As a Massachusetts criminal defense lawyer, I’ve seen it all. Yet today’s post is no less unfortunate than those that have preceded it.

The Worcester County District Attorney’s office reported yesterday (Labor Day,) that two Fitchburg area teenagers were killed in a fight that began over a parking space in a driveway outside a party. The Worcester district attorney reports that Nelson Geraldino, 18, was stabbed multiple times and that Pedro Genoa, 17, was shot in the abdomen and suffered other injuries in the early Sunday morning fracas in Fitchburg. Genoa’s 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds. Three suspects have been arrested: Two brothers who were injured in the fatal confrontation, Orville Carrion, 22 and Jose Carrion, 27, have been charged with murder and are being held without bail. Genoa’s 18-year-old brother, Ronny Genoa, was also hospitalized with multiple gunshot wounds, and has been charged with assault with intent to murder and mayhem. Mayhem, as my website explains, is an aggravated form of assault and battery. This charge essentially alleges that the defendant either did or had the intent to dismember the victim or otherwise inflict grevious bodily injury, such as slashing someone’s face or amputating an appendage (ear, finger, foot, etc.) A knife or blade is commonly involved with such a charge.

Based upon my experience as a Massachusetts murder defense lawyer, I smell either alcohol or some other drugs involved here – in the sense that they caused this fight to escalate to murder, not in the sense that this was necessarily a drug deal gone bad (as can often be the case.) This case may have been a variant of road rage, a crime increasing in frequency. My advice to anyone involved in such a situation: Keep your head calm and your wits about you. Getting cut off in traffic, or losing a parking space to an inconsiderate boor, is nowhere near worth risking your life and freedom for.

As a Boston, Massachusetts criminal defense attorney, I’ve seen a lot of horrific crimes. Truly, shocking acts. But what was discovered in Worcester this past few days, would leave anyone stunned beyond words: Not only was a 23 year-old woman found murdered in her apartment, but the 8 month-old fetus she was carrying had been cut out of her womb.

The murder victim and the baby’s mother was Darlene Haynes. Apparently a rather troubled young woman, Haynes was, at age 23, the un-wed mother of three other children, age 5 years to 18 months, with the 18 month-old in the care of the state Department of Children and Families. The other two children, ages 3 and 5, were being cared for by Haynes’ mother. Police said the 23-year-old had apparently been dead for several days, and that she hadn’t contacted family or friends since Thursday. The gruesome discovery of Haynes’ body was made by her landlord, William Thompson, who said a “horrifying smell” led him to her apartment, where he found her body wrapped in bedding in a closet. While her death was ruled a Massachusetts homicide, the exact cause of Haynes’ death has yet to be determined pending toxicology tests, At this point, the autopsy indicated Haynes suffered head injuries.

Major developments in this murder case occurred yesterday, when the baby that had been cut from the victim’s uterus was located, and a suspect in this murder was arrested. Surprisingly, (some would say shockingly,) the baby appeared to be in good health. Julie Corey, 35, of Worcester, Massachusetts, and a male companion were arrested in the town of Plymouth, New Hampshire, where police found them with the baby. Corey was charged as a fugitive from justice and is to be arraigned in District Court in Concord, New Hampshire today. As of the time of my posting, Corey was in custody and could not be reached for comment; it is unclear at this point whether or not Corey has a lawyer. Police in New Hampshire said the man found with Corey was released, and is not a suspect at this time. (So much for the oft-stated claim by feminist groups, that women don’t commit violent crime, but only men.)

Readers of my blog know that I’ve posted previously on the horrific story of the beating death of young Nathaniel Turner, a 7 year-old boy from Alabama that came to live with his biological father, Leslie G. Schuler, near Worcester, for the summer. On June 21 2009 – Father’s Day – Schuler allegedly beat the boy so badly that he was left brain-dead. A truly horrific story. The alleged facts of this story call to mind the story of Haleigh Poutre, an 11 year-old girl who was also beaten so badly she was almost disconnected from life support at the request of the Massachusetts Department of Children and Families (formerly the Department of Social Services.)

Police said Schuler took Nathaniel to the emergency room on June 21, Father’s Day. The boy was unconscious, suffering from traumatic brain injuries, and was placed on a ventilator. Following a medical determination that the boy had been beaten, Schuler was arraigned last week on assault and battery charges. The boy was declared clinically dead last Tuesday, June 30 2009, after evaluation by doctors from the University of Massachusetts Memorial Medical Center’s University Campus in Worcester and Children’s Hospital in Boston. Nathaniel was removed from the ventilator over the following weekend. His organs were harvested for transplantation.

Schuler was then arraigned last week on a murder charge, according to District Attorney Joseph D. Early’s office. Schuler was originally represented at his assault and battery arraignment by a public defender who reportedly is not on a special list of lawyers appointed by the state to represent defendants accused of murder. (That list is known as the “Murder List” at the state agency who appoints lawyers to represent indigent criminal defendants, the Committee for Public Counsel Services.) However, Schuler has since been appointed another lawyer who is on the “Murder List”, and that person is the same lawyer who represented the stepfather in the Haleigh Poutre case. Springfield lawyer Alan J. Black was named to take over Schuler’s defense. Black represented the neglectful stepfather in the high-profile Poutre case in 2005.

How I wish I could write more of positive news in this blog. Unfortunately, as my law school professors used to tell me, “It’s bad cases that make good law.”

Along those lines, this next case illustrates the definition of murder in Massachusetts, and when someone is “dead.” Nathaniel Turner was a 7-year-old boy who by all accounts was a pleasure to be around. According to those who knew him well in his hometown of Eufaula, Alabama, the 7-year-old liked to stay home and play in the yard. In school, He was an excellent student at Eufaula Primary School, whose school principal Suzann Tibbs, now thinks of his smile: “The smile in the picture – he has it all the time,” she said of a recently-taken photo. He was raised by his grandmother Chrissy Taylor, from the time he was born. Now, it seems, that promising life is ended. Far too young, and far too cruelly. Nathaniel was declared “clinically dead” Tuesday June 23, 2009 by doctors at UMass Memorial Medical Center after he was allegedly beaten by his father, Leslie G. Schuler, on Father’s Day.

The 36-year-old Schuler now faces multiple charges, including several counts of assault and battery and assault with intent to murder. News sources, including The Worcester Telegram & Gazette, are reporting that Schuler allegedly slammed Nathaniel’s head into a wall on Father’s Day. It was reportedly the latest in a series of abusive acts that have occurred since Nathaniel was ordered by a court to spend the summer with his father. A Massachusetts Juvenile Court judge is expected to rule soon whether Nathaniel will be taken off of life support at UMass Memorial Medical Center University Campus.

In my previous post on this subject, I discussed how circumstantial evidence obtained by police can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. But why is the charge “murder” here, and not something lesser? Technically, Markoff is being charged with a violation of Massachusetts General Laws Chapter 265, Section1, which defines the crime as follows: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree.”

Do police investigators and the Suffolk County District Attorney’s office believe that this was a pre-meditated murder (such as with the recent Massachusetts case convicting Neil Entwistle? Not likely.

Instead, Markoff is being charged with murder almost certainly because of what is known as the “Felony Murder Rule”. This legal maxim provides that a charge of murder will apply if a death occurs during the commission of a felony (think of a bank robbery.) When this happens, the homicide can be considered first degree murder, without establishing intent to kill. This rule “injects” the malice element required for first degree murder, from the act of committing the felony. For the felony-murder rule to apply, the prosecution is required to first establish the required elements of the alleged underlying felony, and the death must have resulted from the “natural and probable consequence of the felony.” Again, the prosecution doesn’t have to prove intent to kill; only that a death resulted during the felony, or during the attempt to commit the felony. Here, Markoff was allegedly in the act of kidnapping and robbery of the victim when the death occurred, hence the charge of murder. I’m told by persons close to the investigation that so far, prosecutors do not believe that Markoff intended to kill the victim, but that the shooting and death resulted when the victim resisted the robbery.

In the past ten days or so, I’ve been asked by more than one person why accused “Craigslist Killer” Phillip Markoff has been charged with murder, and not a lesser crime, since there are not currently any witnesses who say they actually saw what happened. The formal charges against Markoff are murder of Julissa Brisman of New York City (on April 14 2009) and armed robbery and kidnapping of an additional victim on April 10, 2009 at the Westin Hotel in Boston’s high-end Copley Place. Is it not possible, some ask, that even if Markoff was the person who struggled with the murder victim, Julissa Brisman, and fired the gun that killed her, he may have been acting in some kind of self-defense? How can the police know enough to charge him with the most serious of homicide crimes, when they don’t have a witness?

The answer is that circumstantial evidence can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. A suspect like Markoff is not at all prevented from advancing any particular defense he wishes (including self defense,) but that doesn’t mean a jury or judge would ever accept it as plausible. (Parenthetically, a defense invoking self-defense isn’t likely here, and would almost certainly fail, as the victim wasn’t armed, was shot three times and bludgeoned in the head. She weighed about 100 pounds; Markoff is over six feet tall and easily weighs 160-170 pounds.)

The earlier victim of kidnapping and armed robbery on April 10 2009 at the Westin hotel, later identified Markoff from hotel surveillance tapes. Police said they discovered forensic computer evidence showing that emails were sent from Markoff’s computer in his Quincy apartment to the victims, as well as forensic evidence of text messages sent from Markoff’s cell phone to the victims. Investigators also found plastic ties in the search of Markoff’s apartment, and several pair of women’s underwear that Markoff allegedly took from his victims. Notably, despite the discovery of this underwear, none of Markoff’s alleged victims were sexually assaulted. Police have alleged that Markoff booked appointments with prostitutes and “masseuses” who advertised on Craiglist, not to sexually assault them, but to rob them at gunpoint for cash to feed a gambling habit that he had. Investigators theorize that Markoff (logically) assumed that a) High-end, “private” prostitutes who book luxury hotel rooms for services likely carry large amounts of cash; b) In a locked hotel room, there would be no witnesses to the robberies; and c) No prostitute was going to fight a man with a gun, nor, more importantly to the plan, report the robbery to police. Logical enough thinking, if you’re a criminal. But police and prosecutors theorize that everything went wrong and ended in murder when Brisman tried to resist Markoff from robbing her and tying her up.

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