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I spend half of my time as a lawyer defending people accused of drug crimes.  In almost all cases, the offense related to these  “crimes,” is that they are classified as crimes, to begin with.

June 2021 marked the United States’ 50 year history of its “War On Drugs.”  This fiasco has been, from its inception, an utterly miserable failure, akin to the Prohibition era in this country, which lawmakers also utterly failed to learn from.  Prohibition did nothing but create underground cartels, rampant crime, and destroyed thousands of lives in the process.  Yet, in its terminal blindness and stupidity, the U.S. government learned nothing from this, and in more than a half century has spent trillion of dollars at both the federal and state level.  The end result?  Trillions of taxpayer dollars wasted, that could have been spent curing horrible diseases, and countless personal lives and reputations ruined.

But the human cost has not been measured solely by wasted money and needless prosecutions.  The opportunity cost of these policies is now becoming clear – i.e., what has been lost in human progress as the result of this foolhardy endeavor.  When the War on Drugs was declared in 1971, all kinds of drugs that had been legal up to that point, were declared illegal.   Five separate “Schedules” of drugs were created by the DEA, with Schedule One becoming arguable the most important of the five, because it listed drugs that were declared to present “No currently accepted medical use and a high potential for abuse.” This, despite the fact that several worldwide populations have utilized these substances as medicines for more than 5.500 years (including indigenous North Americans).  Thrown into this list were marijuana (cannabis), MDMA (Ecstasy or Molly), methaqualone (Quaalude’s), and peyote.   Additional drugs included heroin and LSD, which the U.S. government covertly tested in citizens in the 1950’s.

Readers of this blog know that I’ve written previously on the subject of whether coercing someone to commit suicide should formally be made a statutory crime in Massachusetts.  When they first learn about this issue, a lot of people are stunned to learn that in Massachusetts, it’s not, formally speaking a “law on the books”.  Well, it isn’t:  Massachusetts remains only one of only eight states that does not have a statutory law that explicitly criminalizes the coercion of suicide.

As the nationally-reported ‘homicide by texting’ case of the Michelle Carter prosecution here in Massachusetts made clear, involving the suicide of Conrad Roy III in 2014, prosecutors had to charge her with the crime of involuntary manslaughter involving that case, which is what drew so much media attention to it:  The legal elements required for a conviction of involuntary manslaughter can make not only bringing but securing a conviction on these cases, legally difficult.  In Massachusetts, for prosecutors to secure a conviction of involuntary manslaughter requires a finding that the defendant engaged in “wanton and reckless conduct” which directly caused the victim’s death, and that is how, essentially, Michelle Carter was convicted:  Through her acts of repeatedly encouraging her boyfriend Conrad Roy, who had repeatedly demonstrated depressive symptoms, to kill himself.  Carter was Roy’s girlfriend and was 17-years-old at the time Roy killed himself.

The problem with this prosecutorial approach is that the defense usually rests upon a First Amendment claim of freedom of speech.  This defense essentially claims that this type of speech is protected by the U.S. Constitution, and that words alone, without action, cannot legally cause another person to commit suicide.  Michelle Carter’s defense was that she didn’t cause Conrad Roy’s death – that he killed himself.  As a Boston criminal defense lawyer, I don’t subscribe to this legal argument, at all.  In fact, several of my legal colleagues disagree with me, but I stand by my position:  If one person, knowing that another person possess or displays particular mental or emotional vulnerabilities such as depression, mental or emotional illness or suicidal thoughts, takes advantage of that person’s vulnerabilities and encourages the victim to commit suicide, such speech should not be considered protected, but should be statutorily codified as a crime.

Over the past few years, the number of calls that I receive as a Massachusetts domestic restraining order attorney, on the subject of Massachusetts domestic violence arrest and charges, has increased substantially.  A great reason for this spike has to do with new legislation that was passed a few years ago, which expanded the scope and legal severity of these crimes.  That reform legislation was passed in large part due to tragedies involving allegedly light treatment that judges and prosecutors had given to a few cases involving domestic violence, in which persons arrested for domestic violence were released from custody, only to inflict even more injuries, and even death, upon the victims.  Those cases, one of which involved the son of Red Sox announcer Jerry Remy, hit the media, and once that happened, new, tougher legislation on this subject was bound to follow.

However, the governor of our neighboring state of Rhode Island just signed legislation that would include household pets in domestic violence protection orders (in Massachusetts, such orders are alternatively called “Abuse Prevention Orders”, “Restraining Orders”, or “209A Orders”.)  Before you scratch your head and think that such legislation might be a little extreme, the Rhode Island legislature had their reasons.  That legislative rationale says that – statistically speaking – a person who abuses others physically is very likely to also abuse pets and small animals, also.  Thus, the new legislation in Rhode Island will allow judges to order that any person against whom a domestic violence protection order is issued, is also ordered to not abuse any family or domestic pets.  The legislative and judicial reasoning is sound, because there is a strong mathematical and social correlation between domestic abuse and animal abuse.  The legislation is not so much intended to carve out a new class of protected victims (pets), as to provide one more vector of behavior to provide protection against.  Imagine a situation where an abuse prevention order did not cover household pets, and someone against whom such an order was issued, intentionally and severely kicked and injured or killed the family dog or cat – and then claimed that he/she “did not violate any order”.  Would you not think that such a person is likely to also inflict violence against the person(s) that the order was issued to protect?  It makes sense.  And by the way, Rhode Island is following in the legal footsteps of  Massachusetts and Connecticut, whose domestic violence laws also include household pets.

If you have any questions concerning Massachusetts Abuse Prevention Orders, Massachusetts Restraining Orders or Massachusetts 209A Orders, we’d be happy to speak with you.  You can call us or email us here, and we’ll get right back to you.

Now that summer is here and people are again flocking to Cape Cod & the Islands, a lot of people have been looking at news on actor Kevin Spacey.  As most everyone who knows this name knows, Spacey (real name:  Kevin Fowler), was charged last January in Nantucket District Court on Massachusetts Indecent Assault & Battery charges, accused of sexually assaulting an 18 year-old boy in the summer of 2016.  Spacey, of course, has pleaded not guilty, and recently, his attorneys have ramped up their legal defense, asking a judge to order that the alleged victim produce his cell phone to determine if relevant messages & data were deleted after the alleged incident.   The judge has granted the defense’s motion, and that phone will now be forensically scoured to determine if any data was deleted between the date of the alleged incident, to present.

Thus, more than a few people have asked me whether or not I think Spacey is going to seek a trial in this matter to seek a Not Guilty verdict, or possibly plead the case out to a less serious offense (such as ‘simple’ assault & battery), to avoid risking a conviction – and the publicity that would go with that.

Right now, it appears to me that Spacey may well elect to go to trial on this case.  The reasons that I sense this are primarily legal.  (However, Spacey put out a rather strange video on YouTube last December, in which he spoke in the voice of his now-famous “House of Cards” character, Frank Underwood, inferring that he would never admit to a crim he didn’t commit.  Regardless of this video, as a Massachusetts sex crimes defense lawyer, I think there are good reasons why Spacey should consider seeking a trial in this case (vs. “pleading it down”, to avoid both the public spectacle  of a trial, and the possibility of a guilty finding and potential jail time.)  Most of these reasons relate to evidence – specifically its veracity and admissibility.

As a Massachusetts drug crimes defense attorney, I have watched for years as countless citizens have been arrested and prosecuted for a wide variety of Massachusetts drug offenses – the majority of them needless prosecutions caused by the now half-century old “War on Drugs” that the federal government has used hundreds of billions of our tax dollars to “fight”.  As a Boston drug crimes lawyer, I can assure my readers that this “War” has always been, and remains to this present day, a massive waste of taxpayer money, time and effort.  Criminalizing drugs does nothing but create black markets, which creates drug lords, which creates crime, which causes violence, ruined lives and death.  It is a very simple formula, with a very simple, predictable result:  Destroyed lives, wasted money, and endless individual destruction.  But it pays for a lot of police and other government jobs, doesn’t it?

Exhibit ‘A’ on this point?  The decades-long prohibition on marijuana (cannabis).  If the average person had any idea of how many peoples’ reputations, academic & educational prospects, careers and lives were ruined because they were arrested and prosecuted for using this harmless, non-addictive, non-toxic, and even medically beneficial substance, they would (hopefully) never vote again for any politician, federal or state, who continued to support such pathological approaches to drug policy.

So, especially when it comes to the devastating opioid crisis gripping this country, who are the real criminals?  Look no further than the multi-billion dollar pharmaceutical industry – one of the major players that make up corporate America.  Here in Boston, a ray of light appeared recently with the prosecution and conviction of senior executives within a pharmaceutical company called Insys.  Insys manufactures and markets a powerful opioid painkiller called “Subsys” – a prescription drug (fentanyl) developed to treat severe pain in cancer patients.  So, what’s wrong with that?  In one inevitable word,  greed.  You see, ‘Subsys’ costs a lot of money –  as much as $19,000 per month for some cancer patients (which health insurance companies and Medicare are billed for.)  What did federal prosecutors allege was going on inside this major pharmaceutical company?  Here’s a short list:

Governor Charlie Baker filed a bill this past Wednesday adopting a state panel’s recommendations to deal with police stops of drivers suspected of being impaired due to cannabis use. Even though I’m a very serious safety advocate, as a Massachusetts OUI/DWI attorney, I have one major objection to this bill, as presently written.

The Special Commission on Impaired Driving, which is part of the Massachusetts Cannabis Control Commission was created within the law that legalized recreational marijuana use. It made 19 recommendations that were almost passed unanimously, with the one dissenter on the commission being the American Civil Liberties Union (ACLU). I don’t normally agree with the ACLU on a variety of legal issues, but as a Massachusetts drugged driving lawyer I believe the ACLU’s objection here is sound. Essentially, that objection is based in scientific research that has fairly convincingly established three important points: 1) While marijuana does impair operating a motor vehicle, the level of impairment is closer to distracted driving – far less than the impairment posed by drunk driving; 2) Currently, no medical or scientific tests exist which can accurately measure a driver’s level of impairment while using marijuana, in the manner that a breathalyzer can measure with alcohol. That’s because there is no clinical correlation between the level of THC in a person’s bloodstream (cannabis’ main psychoactive compound) and a level of impairment. Most experts say that such tests are most likely three to five years away from commercial use. 3) Presently, any blood tests for cannabis can only reveal past marijuana use, not present impairment. THC remains in the bloodstream for days after use – thus, you could be blood-tested for pot use today, not have used it for several previous days, and yet it would appear “present” in your blood test. This could lead to innocent people who were not impaired at all by pot while driving, being convicted and punished.

This is extremely important because, under the bill’s proposals, if drivers who are stopped by police and suspected of being stoned, refuse police demands for a biological (blood) test, they would lose their driver’s licenses for at least six months – the same penalty for suspected drunk drivers that refuse to take a breathalyzer test. On this point, the Massachusetts ACLU chapter has commented that “Motorists shouldn’t be faced with losing their license for refusal to submit to a test that does not measure impairment,” That point, I agree with. However, as the ACLU is want to do, they also stated, “In addition, this [penalty of six month loss of drivers license if a driver refused a chemical test for pot] could exacerbate the problem of racial disparities in enforcement.” That point, I disagree with (one more example of the ACLU never seeing a public safety law that it didn’t oppose.)

U.S. Secretary of Education Betsy Devos earlier today released a long-awaited series of formal proposals for how colleges and universities respond to accusations of “sexual assault” and conduct investigations into such incidents. The proposed revisions would update “guidance recommendations” previously put in place buy the Obama administration, and predictably, Democrats and “#MeToo activists”, howled their opposition, claiming the proposal would allow, perhaps even encourage, sexual assailants to prey on college campuses everywhere as well as allow schools to evade civil liability.

This is no surprise, as these “women’s rights activists” will never cease at their un-reasoned exercises in hyperbole and extremism, when ever anyone has the audacity to disagree with their imbalanced ideas of legal due process and, even, basic fair play. The proposed regulations originate from a 1972 federal law called Title IX, which was initially passed to prevent sex discrimination at colleges and universities that receive federal funding. Most of the law’s focus is on universities, but it also applies to and any other schools that receive federal monies.   The Obama administration had previously issued “guidance” to schools, which wildly favored accusers and nearly stripped accused students of almost any meaningful legal protections provided by the U.S. constitution.  Obama’s Education Department was able to accomplish this end-run around procedure, because their recommendations to schools were made outside the normally-required formal rule-making process.  The result?  Those “guidance recommendations” threw out almost any meaningful substantive and procedural legal rights for anyone accused of sexual assault — and furthermore, under the Obama “guidelines” – the definition of “sexual assault” was broadened so wide as to subject almost anyone to such an accusation.  Predictably, before reading any further, left-leaning feminist activists will interpret this post to be “anti-women” – or, to employ the prevailing lexicon they so favor, “misogynist”.  Not, neither this post, not any of my opinions, are “anti-women”:  They are pro-due process; they are pro-fairness; they are in favor of determining the truth in any given circumstance – not conducting a kangaroo court to satisfy the loudest protect group of the moment.

Employing the Obama administration’s “guidelines” (vs. formal rules), allowed Obama’s Education Department to essentially manufacture new proceedings that had no basis in any relevant statute or Supreme Court opinion.  Again, these “guidelines” – which despite being called “guidelines”, almost every campus in America adopted given the fact that over 95% of them are bastions of liberal thought, were the ultimate in an end-run around appropriate federal protocol. They were the product of militant feminist “activists”, who never cease in their proclamations of victim-hood and “oppression” – even in an era when women occupy, justifiably and with good reason, some of the most powerful positions in the country – in law, in government, in commerce & business, in medicine, in academia, and more.  These activists simply never cease their drumbeat of trying to convince people that every woman, everywhere, is oppressed, abused economically, and sexually pursued and harassed, wherever they go.  Odd – I don’t see that in any of the women I know, of a variety of ages, professions and backgrounds – and I’ve asked many women I know for their opinions on this subject.  Yet we’re told by militant feminists that this conduct is ubiquitous; omnipresent; everywhere, universal; constant.  Really?  As a Massachusetts criminal defense attorney who is in the courts every day, this sounds more to me like the dying breaths of once-active organizations like the National Organization for Women, which given all the advancements made in women’s interests, are now largely irrelevant, but to avoid a natural death, continue to declare otherwise through such dramatic claims of “oppression, everywhere”

I was interviewed by the Boston Globe yesterday about the testimony that unfolded before the U.S. Senate Judiciary Committee surrounding Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. Before going any further, I’m going to say something very sincerely, and I want my readers to know that mean it 100 per cent: I have all the sympathy, and yes, empathy, for anyone who advances a credible, believable claim of sexual abuse, indecent assault & battery, or rape by another person.  Man or woman.  Young or old.   Any background whatsoever.   But when such accusations are made, and the accused’s life and welfare are on the line – never mind the stakes involved in the instant matter with the Supreme Court such accusations must be supported by persuasive, compelling testimony produced by the critical procedural element of cross-examination. If not, they remain what we have here, now: Uncorroborated accusations.

Let me also get something else – something very important – out of the way now: I direct this specific comment to the radical elements of the #MeToo movement, who denigrate and assassinate the characters and motives of anyone who dares to disagree with them, or call into question their motives about matters involving allegations of sexual abuse:  Such people are immediately maligned by militant feminists as being fossilized, backward thinking relics of 50+ years ago – the intellectual and social equivalents of knuckle-dragging troglodytes. And one word never spared in their attacks on anyone who has the audacity to disagree with them?  “Misogynist”, of course.  (“Women-hater” is often thrown in for good measure.)  To those militants I say:  Save it – That won’t work with me. That’s because I see people as gender-neutral. I don’t judge people based on gender, or ethnicity, or anything else other than their deeds and actions; in the words of MLK, “The content of their character.”  Trite, isn’t it? But I happen to firmly believe in that ideal.

Dr. Christine Blase Ford gave some emotionally riveting testimony yesterday. From my distance, it seems quite possible that something happened to her in her past, involving some kind of sexual assault. And if that is so, anyone with any decency, compassion or empathy would feel for her. But amidst all the drama raised by her testimony, here are facts that collectively pose inescapable problems with her testimony:

Anyone who reads a newspaper, surfs the internet of listens to radio, knows about the overflow of legitimacy, ethics and personnel problems inside the Massachusetts State Police.

Now, before loyalists and aficionados of the state police get all worked up that I’m “attacking” or “dumping on” the state police, I’m not. I have known and now know several honest, ethical, productive state troopers, as well as administrative personnel who work for the state police. But something is wrong at this agency, and there’s no denying it.

Just a few of the revelations staining the department in the past few months:

In Part Two of this three-part post on the horrific stabbing murder of a young medical student studying quietly in the Winchester Public Library on February 24, I wrote of the many times that the accused murderer, Jeffrey Yao, had come to the attention of the Winchester Police Department as well as school authorities and neighbors, for years before his behavior reached this savage ending. Despite this, Yao was never once civilly committed to a psychiatric hospital for evaluation and treatment – which could have prevented this awful tragedy. The reason that Yao was never civilly committed, has to do with the legal standard for civil commitment in Massachusetts.

“Civil commitment” refers to the legal process through which a person considered mentally ill and dangerous to him/herself or others, can be ordered held in a psychiatric facility for evaluation and possible medical treatment.  Massachusetts police do have the authority to do so: Under state law, a police officer who has a good faith belief that a person may harm himself, herself or others due to suspected mental illness is allowed to bring that person to a hospital Emergency Department or a mental health facility to be examined and evaluated by medical professionals, notwithstanding the fact that the individual may not (yet) have committed any crime. If such a person will not cooperate willingly in that process, police have the legal authority to restrain such a person.

By law, a person who is brought to a hospital under such circumstances is under no legal obligation to participate in any evaluation or examination, which is something that a civil libertarian will tell you is a good thing. Not necessarily so, in my opinion as a Massachusetts criminal defense lawyer.  If the person refuses to cooperate or be evaluated, hospital personnel can invoke a state law that enables the hospital to hold the patient for three days. That should have been done at some point with Jeffrey Yao, and it wasn’t.

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