Articles Posted in Probation Violation

As I said in Part One of this Post a few days ago, a lot of people, especially some talk radio hosts, have placed the blame for this tragedy squarely on judge Superior Court Judge Thomas McGuire, lambasting him as a “Hack Democrat judge.” I don’t think that was the problem here, but I do think that liberal judicial thinking and liberalism in general in the judiciary, can be cited as a source of this problem. But in my view as a Boston Massachusetts felony defense lawyer, the key to seeing through to the real source of this judicial liberalism, which caused Mickey Rivera to be released on bail in the first place last fall (2017), isn’t so much the judge who first released Rivera last fall (judge McGuire), as it was the Supreme Judicial Court’s instructions to Massachusetts judges on bail procedures, in its August 2017 decision in Commonwealth v. Brangan.

The SJC’s Brangan decision focused almost exclusively on one factor that lower court judges setting bail should consider – whether and how much a defendant can afford to pay. As a Boston area criminal defense attorney, I fight hard for my clients, and I am well aware of the constitutional and procedural issues relating to bail. But I don’t believe that a judge’s primary focus should be the answer to the question So, defendant Jones, if I were to set bail here, what can you afford to pay?” Whether or not bail is set for a criminal defendant, and how much, should not be brought down to the level of the proverbial car salesman’s question, “What do I have to do to put you in this car today?” Equal emphasis should be “What are the nature of the criminal charges here?”; “What is it that the defendant is alleged to have done?”; “Was any violence involved?”; “What kind of harm occurred in connection with this arrest or incident?”; “What kind of criminal arrest history does the defendant have?”; and “What are the totality of circumstances here?” Very importantly, those totality of circumstances include how much initial evidence the Commonwealth has against the defendant: Is that initial evidence weak? Strong? Compelling? Doubtful? Were there witnesses involved? What is the nature of the evidence?” To subordinate critically important and relevant questions and considerations such as these, to one overriding question:  “What can the defendant afford to pay for bail?” is in my view as an experienced criminal defense attorney, dangerous public policy and judicial guidance. Those factors should not be subordinated to one primary question – how much a defendant can pay for bail? – they should be equal to it. Continue reading

By now almost everyone in Massachusetts, and outside the state, has heard of the horrific story of how Kevin P. Quinn, an Afghanistan combat veteran, 32 year-old married man and the very recent father of his first born baby, was killed by a reckless driver – a criminal defendant who was let out on probation – evading Mashpee police in a high-speed chase. Mr. Quinn‘s car was hit head-on by one Mickey A. Rivera, a 22 year-old troublemaker from Fall River who had a criminal history with the courts. Quinn had just left the hospital visiting his wife and newborn, when Rivera, fleeing Mashpee police who were pursuing him for reckless driving and speeding, hit Burke’s vehicle head-on in Cotuit. Mr. Burke was killed instantly in the accident, as was Rivera. A passenger with Mr. Rivera, one Jocelyn Goyette, age 24 from New Bedford, was ejected from Rivera’s vehicle but survived long enough to be transported to a hospital, but now she, too is dead. She had a 4 year-old son. It is not known why she was in Rivera’s SUV at the time of the crash.

People across Massachusetts, and indeed the nation – are outraged by this tragic story.  And they have every right to be.

Now all three people involved in this police chase (with the exception of the police officer involved) are dead, including Kevin Burke. His young wife is now a widow, his newborn baby is left fatherless, and the airways and internet have heated up, because it’s been learned that Rivera was out on bail when this tragic event occurred. Rivera had been previously held in jail related to a 2015 armed robbery case that resulted in someone’s murder in Fall River. He was released on bail in that case, last fall.

Here’s a very interesting hypothetical legal question:  Let’s assume that “Dave Defendant” is convicted of a certain crime – whether a misdemeanor or felony –and is sentenced to probation.  Part of his probation terms require that he remain drug-free, and submit to random drug tests administered by the Department of Probation.

One day, Dave Defendant’s drug tests come back positive for a controlled substance.  His probation officer brings Defendant back before a judge, for what’s known as a “probation violation” hearing. The judge finds that Defendant had indeed tested positive for prohibited drugs, which means that Defendant violated the terms of his probation – which authorizes the judge to sentence Defendant to jail.  Should this be done – should such a person be sentenced to jail for relapsing during drug recovery? Continue reading

In a ruling bound to enrage victim’s rights advocates and conservative legal and political commentators, the Massachusetts Supreme Judicial Court yesterday issued a decision restricting District and Superior Court judges’ ability to require that GPS monitoring bracelets be worn by convicted Massachusetts sex offenders, regardless of whether offenders have violated the conditions of their probation. While differing viewpoints can argue the constitutional validity of this decision, it is the underlying which gave rise to this ruling that is certain (understandably) to evoke a lot of visceral reaction about this ruling.

The facts of that case are unquestionably ugly and revolting, so let’s lay them out up front: One day twenty years ago, in 1990, a particularly loathsome individual by the name of Ralph Goodwin abducted and raped a 7 year-old boy. I said the details are revolting, and they are: Goodwin lured the young boy away from his parents while the family was attending an event at a Portuguese-American civic club in Lowell. He did this by enticing the boy in a game of hide-and-seek. According to prosecutors at his trial, Goodwin separated the boy from his parents and a friend and carried him outside the building, threatening to kill him if he called for help. He then took the boy to a secluded area underneath a nearby bridge and raped him. When Goodwin was done, he then took him to a house, where he sexually assaulted the boy again. Goodwin held the boy prisoner in the cellar of the house overnight, and raped him again the following morning, according to prosecutors. He then placed the injured and traumatized boy in a large cardboard box, deposited him on a street corner, and called a taxi to take the boy to his home.

Goodwin was convicted at trial, and then-Superior Court Judge Patti B. Saris, (who is now a federal judge,) sentenced Goodwin to two concurrent terms of 10 to 15 years in prison for two of the Massachusetts rape charges, and nine to 10 years concurrently for the kidnapping. She sentenced Goodwin 30 to 40 years for the third rape but suspended that sentence, but ordered that it be automatically imposed if he reoffended. Goodwin then spent the next 15 years as a guest of the Commonwealth in state prison. Prior to his scheduled release in 2005, he was civilly committed to Bridgewater State Hospital (basically the state prison for the insane and the sexually dangerous,) after a judicial determination that he was still sexually dangerous. In 2006, the Massachusetts Legislature passed a law to require that all convicted sex offenders wear GPS monitoring devices. Fast forward to June 2009, when Goodwin was released after a jury concluded he was no longer dangerous. He was given several conditions of probation at his release. However, wearing a GPS monitoring device that would allow authorities to track his movements, and staying away from schoolyards, was not among the listed conditions of probation, because he was convicted prior to enactment of the 2006 law requiring all convicted sex offenders to wear the devices. This is key here.

In my previous posts on the subject of what can happen when a defendant who has been sentenced to probation, violates one or more of the terms of his probation agreement, I discussed the case of Massachusetts state senator Anthony Galluccio. Galluccio was sentenced to probation recently for leaving the scene of an accident last October 4 2009, in which a 13-year-old boy was I injured. Because Galluccio had previously been convicted twice on Massachusetts drunk driving charges, (one of which he had been pardoned for) and because investigators suspected that alcohol was involved in the October 2009 vehicular accident where Galluccio left the scene, a judge placed Galluccio under house arrest and placed him on probation. One of the terms of that probation order, was that Galluccio abstain completely from ingesting alcohol. To monitor his compliance with that order, an electronic alcohol monitoring device (called a “Sobrietor”) was installed in Galluccio’s home, and he was required to submit to random alcohol testing with that device.

Three days after receiving that sentence, Galluccio tested positive (on three separate tests) for alcohol. He was then arrested for a Massachusetts probation violation. As part of his defense, he initially claimed that his toothpaste caused a false alcohol reading (he later abandoned that defense). At his court appearance earlier this week, Galluccio showed up in court with two defense lawyers, several public relations representatives, and expert witnesses testifying on his behalf that the “Sobrietor” accuracy might be questionable.

The result? Handcuffs and a trip to a Billerica jail cell for the next 12 months. This very public story illustrates just how serious probation agreements are. Especially when it comes to Massachusetts OUI charges and alcohol abuse. Some defendants think that they can ignore probation agreements – but they’re serious business. The judge in this case, Matthew J. Nestor of Cambridge District Court, had (generally speaking,) three options in front of him, after hearing Galluccio’s defense at this probation revocation hearing: 1) Terminate probation, 2) Re-probate him with more serious conditions – including mandatory alcohol treatment at an inpatient detox center – or 3) Impose a one-year jail sentence. Galluccio and his lawyers probably thought he’d get one of the first two sentences. But as a Dedham Massachusetts OUI defense lawyer, I can assure you: With multiple offenders, luck always runs out.

In my last post, I discussed the most recent Massachusetts OUI arrest involving state senator Anthony D. Galluccio, and his most recent, and rather novel, legal defense. I made the argument that while as a Boston criminal defense lawyer I zealously and aggressively fight for my clients in court, there comes a time, if a person is arrested multiple times for the same offense (such as OUI or a Massachusetts sex offense,) to own up to the problem, cease the excuses, and get effective treatment.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.