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In Part One of this three-part post, I wrote of the horrific, nightmarish murder of Deanne Stryker, stabbed and slashed to death while the medical student studied quietly on Saturday, February 24 at the Winchester Public Library.

I also wrote of the fact that the accused murderer, Jeffrey Yao of Winchester, Massachusetts, had a long history of bizarre, dangerous, disturbed and violent behavior, that he was well-known to the Winchester Police Department, and that he had been brought before a judge after being arrested for trying to violently break into a neighbor’s home late one night last September. Yao was brought before a judge on criminal charges from that incident. While I don’t have the official court docket before me now, the likely charge (given press reports of what prompted that arrest,) was probably Attempted Breaking and Entering with Intent to Commit a Felony – a serious charge. From police reports filed in that case, it seems clear that Winchester police communicated Yao’s unstable and disturbed personality to prosecutors, the reporting officer writing that On each of my dealings with Yao he has displayed erratic behavior and mental instability.”

Yet a prosecutor with the Middlesex County District Attorney’s Office agreed to recommend that Yao be released – on the extremely liberal sentence of pre-trial probation – and a judge agreed, with the ridiculous proviso that Yao “agree to (mental health) treatment.” Even from my vantage point of being a Middlesex County criminal defense attorney, it can be argued that the judge could have observed that Yao was very arguably, seriously mentally ill. One could ask, what made this judge think that: A) Yao truly and completely understood what he was being told by the court, or that B) He would actually comply with the court’s order? Who was going to make sure this happens – Yao’s parents?  They had previously, and repeatedly, told Winchester police that they themselves (Yao’s parents) could not communicate with him due to his obvious mental illness.  So who was it that was going to assure that Yao landed in front of a competent psychiatric specialist?  As a Massachusetts criminal defense attorney, I’m the first person to admit that it’s uncharacteristic of me to argue that police and prosecutors should have taken a much harder line here.  But they clearly should have. 

Knowing that I’m a criminal defense attorney, a lot of people have approached me lately and expressed shock that Massachusetts murder suspect Jeffrey Yao could slip through the law enforcement and judicial cracks that he slipped through, given the extensive history of worrisome reports and complaints about his strange behavior that were reported to authorities by both Winchester High School students and adult residents of the Winchester neighborhood were he lived. These reports of his bizarre behavior reportedly spanned six years. By now millions across the country know this horrific story: That on Saturday, February 24, Yao walked casually into a public library in the small Massachusetts town of Winchester, carrying a ten inch hunting knife, and stabbed a young medical student by the name of Deane Kenny Stryker, to death. He stabbed her at least 20 times; when she finally fell to the floor, the hunting knife was still in her neck.

This is a scene out of a “Friday the 13th” film. It is beyond comprehension. Continue reading

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

Whether and what kind of sobriety tests would be allowed in court to prosecute drivers suspected of operating while under the influence of marijuana, was a question just waiting to be answered from the moment pot was legalized in Massachusetts – whether for medical or recreational use.  Well, the legal community now has the first such indication of those legal boundaries.

In a decision released just two days ago, the Massachusetts Supreme Judicial Court (SJC) unanimously restricted the ability of police officers to testify as to their own, subjective opinions of whether or not a given suspect was driving under the influence of pot.  Before going further, some quick contrast is needed here to explain what evidence is allowed in Massachusetts OUI/DUI alcohol cases:  In traditional DUI arrests, officers typically require the driver to perform what are called Field Sobriety Tests (“FST’s”), which consist of various tests such as walking heel-to-toe, reciting the alphabet, standing on one leg, and an additional test known as a Horizontal gaze nystagmus test, which measures the responsiveness of the eyes to a moving object such as a pen.  All of these are scientifically accepted indicators of alcohol intoxication.  If a suspect fails those tests, an officer may testify in court that the defendant failed the tests.  However, in this important decision, the court ruled that, due to the fact that there is as of present date no scientific consensus that these Roadside Sobriety Tests can definitively prove that a person is intoxicated by marijuana, the court limited what an officer can testify to on the stand. Continue reading

As I’ve said many times, people often ask me how I can defend certain types of clients accused of crimes such as, for example, drunk driving or sex offenses.  And I give them the same answer, every time:  “Because my client might be innocent.”

Just yesterday, (August 23 2017,) the Massachusetts District Attorneys Association, the statewide association representing the 14 county-based District Attorneys Offices across Massachusetts, announced that until further notice, their prosecutors would no longer use alcohol breathalyzer tests (“breath tests”) in current or future Massachusetts OUI/DUI cases.  Why?  That’s where, as a Boston and Wrentham Massachusetts OUI defense attorney, my constant answer above, becomes “Exhibit ‘A’”. Continue reading

By now most people are aware that Gov. Charlie Baker recently signed the House-Senate Conference Committee bill on the new pot law, which hammered out differences the two chambers wanted to make in the ballot law that voters passed last November, legalizing recreational use of cannabis in Massachusetts for persons age 21 and older.  Here are the details on the provisions of the new law:

Limits on homegrown and personal possession of marijuana :  Anyone over 21 years of age can possess 10 ounces of cannabis inside their primary residence, and a maximum of up to 12 marijuana plants in the home.  Outside the home, the possession limit is 1 ounce, or not more than 5 grams of marijuana concentrate.  A person can also gift up to 1 ounce to another person. For persons under 21, it is also now no longer a crime for them to grow cannabis in their home.  If they are found to do so by police (a situation rather hard to envision,) they will face a civil offense if found to possess less than two ounces of pot, whether found inside or outside their residence.  Possession of more than 2 ounces does remain a crime for persons under 21.  However, if anyone under the age of 18 is found to possess less than two 2 ounces of pot, in addition to a civil fine the minor will be required to complete a drug education program. Continue reading

The long and painful saga of the trial of Michelle Carter, charged with Involuntary Manslaughter in the 2014 suicide death of her 18 year-old “boyfriend” Carter Roy III, is not completely finished.  Not on a legal level, because Carter has yet to be sentenced – that will come later.  And on a personal level, the case will in reality never be “finished” – not for the two families involved in this story of pathos and “progress” (i.e., technological.)  Certainly not for several others affected by it, either.

For it is a fact that a collision of forces took place in this young man’s death:  A combination of mental illness in the form of depression, of homicidal animus, and, yes, of moral decay within a society where the most intimate of relationships – including marriage – and now, yes, life itself- are ended by something called a smartphone.  Yes, this case is an indictment and a conviction of one person – Michelle Carter – for the suicidal death of Conrad Roy III.  But our society as a whole can be indicted here, as well:  For reducing the value of human life and human interaction to something so shallow and cowardly as an electronic text. Continue reading

Just a couple of days ago, a man was arrested and charged with serious felony counts on Massachusetts drug charges, in Lawrence District Court.  Except this case is rather unique.  You see, this defendant didn’t end up in handcuffs or court in the usual way:  Being arrested by the police.  He ended up in jail because his 11 year-old son called the police on his father – effectively, turning him in.

The boy the called Lawrence Massachusetts Police Department on his father, Yamil Mercado, after allegedly seeing his father deal drugs out of their home there.  Mercado reportedly surrendered to police last Thursday, one day after the boy called police to say that he and his 13-year-old cousin had found what they believed were drugs in the father’s luggage, according to a police report. The boy reportedly also told police that he’d witnesses his father in a drug deal just a day few days earlier. 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

Well, as of midnight tonight, marijuana is finally legalized in Massachusetts.  Despite the dire predictions of tone-deaf politicians and law enforcement officials, despite the moral protestations of religious leaders including the Catholic church, the voters of Massachusetts saw through the smoke and mirrors (pardon the pun,) and approved what so many other states have already done:  Made possession of limited amounts of cannabis legal. Voters here had already decriminalized marijuana in 2008, and approved medical marijuana in 2012.  Reflecting the cluelessness of many of Beacon Hill, all three measures had to be approved by citizen ballot measures, as the legislature consistently refused to act. In a growing trend of sanity on this issue, Massachusetts voters joined voters in Maine, California, and Nevada on Nov. 8.  Colorado, Oregon, Washington State, Alaska, and the District of Columbia also voted to legalize marijuana in recent years. Continue reading