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I usually write about Massachusetts legal decisions & issues in this blog, but here’s an interesting subject that applies no matter the state:

When people think of the terms “sex offense,” “sex crime,” or “sex offender,” most people think of the classic pervert wearing a raincoat and nothing else, flashing himself (or herself) to unsuspecting victims. Or they think of rapists; or child molesters. And when people think of these types of images, they usually conjure up an image of a sleazy, dirty, street-level, alley-occupying degenerate, hiding behind some bushes waiting to pounce, fangs and all.

While, very unfortunately, some people like these do exist, as a Boston sex charges lawyer, I can assure you, that these stereotypes are not true. I’ve represented many a person charged with a Massachusetts sex crime, who was both not guilty of the crime, AND who was an upstanding member of his/her community, and a very successful person. Sex crime allegations are especially dangerous: The mere accusation can ruin a person’s livelihood and life – even if the person is found not guilty, he or she will always be known as “the one was accused of (rape/indecent assault and battery/prostitution, etc.).”

I don’t know how many times that I’ve blogged about the complete waste of time that police resources and taxpayer money are involved in, when police officers harass people because of marijuana. As a Boston, Massachusetts drug offense attorney, it’s more pathetic than I can describe. Here we are, plagued by increasingly violent crime of all kinds, and what do so many police departments and officers spend their time on? Pot. An essentially harmless herb. Something that’s widely accepted by numerous medical authorities as non-addictive, and far, far less harmful than thoroughly legal alcohol. Not only do medical authorities say this, but so do numerous present and former police and law enforcement officials. Anyone who doubts that, can see it by visiting Law Enforcement Against Prohibition (LEAP.)

Six years ago, in 2008, Massachusetts voters made is crystal clear how they felt about personal marijuana possession, by voting overwhelmingly to decriminalize possession of less than an ounce of pot. The new law, passed by citizen petition on a ballot question, limited the penalty of personal possession of one ounce or less of marijuana to a maximum fine of $100 – a civil offense only, akin to a parking violation. The message was loud and clear how voters felt. What was the response of most Massachusetts police departments? Issue troubling predictions of Armageddon, and streets filled with stoners. Oh, yes: And start writing tickets.

Three years ago, in 2011, the Massachusetts Supreme Judicial Court (SJC,) handed down a decision about unlawful police searches – and marijuana was the key issue. You see, in that case, police had stopped the driver of a motor vehicle. Because they detected the odor of burnt (smoked) marijuana, they concluded that a “crime” had been committed, and proceeded to search the vehicle without a warrant. The case was appealed, and the SJC ruled that given the fact that the 2008 citizen initiative petition decriminalized possession of one ounce or less of marijuana, the mere smell of burnt marijuana – standing alone – did not establish probable cause to conduct a warrantless search.

If I asked you what “CI” stands for, in the context of police work or criminal law, would you know? Almost certainly not. I wouldn’t expect you to.

No, it’s not the name of a new TV crime show. It stands for “Criminal Informant,” or, as they say in the prison system, a “snitch.” It’s the acronym for a known criminal, who the police have coaxed into working with them to land (i.e., arrest and charge) larger criminal targets. Now, most people think that the “coaxing” involved in these cases, usually involves an agreement to “go easy” on a criminal suspect, if that suspect provides police with valuable information on the bigger fish that the detectives have their eyes on: Information such as names, addresses, modes of operation, hidden locations, etc. So, for example, if a suspect is charged with Massachusetts drug trafficking charges, the police department involved might agree to reduce the charges to a “straight” charge of drug possession, for which the sentencing penalties are far less severe (vs. distribution or trafficking.)

But here’s the kicker that most people don’t know: Many Massachusetts police departments and other law enforcement agencies (such as the Massachusetts State Police,) actually pay suspects to not only provide “information” about other criminal suspects, but to testify against those suspects in court documents. Yes, you heard that right. You can get up off the floor now. Some police departments actually pay cash to suspects to provide “information” about other criminal suspects the police have targeted – and inevitably, the “cooperation agreement” the informant signs with the police, contemplates or involves testifying in court documents against those other suspects. In exchange, the informant is not only paid money, but their identity is shielded in court documents, identified only as “Confidential Informant/CI No. 1, (or 2, etc.)”

Let’s start the new year off with something unusual.

There’s a saying, “You do the crime, you do the time.” But sentencing criminal defendants who have either been found guilty after a trial, or who have pled guilty in lieu of a trial, has begun to change in recent years. Yes, usually when sentencing, a trial judge will just use the statutory penalties that are provided. These penalties almost always involve either jail time and/or a financial penalty (fine.) But increasingly, judges are becoming creative in their sentencing, ordering convicted defendants to serve sentences that closely resemble the crime(s) for which they have been convicted. From being forced to hold signs in public telling passersby what they have been convicted of, to leading a donkey through town, sometimes paying one’s debt to society doesn’t mean jail time; it means public humiliation. Public humiliation as a criminal court sentencing option has its roots here in Puritan, New England, of course, most notably depicted by Nathaniel Hawthorne in his famous novel, “The Scarlet Letter.”

Here’s just one of these “alternative sentencing options” to start off the new year:

It’s the world’s oldest profession – prostitution – but it still seemed a surprise to some that it was allegedly occurring as part of a regular operation in bucolic Needham, Massachusetts. Needham, as most people around here know, is a wealthy town with a highly rated school system; it is home to affluent individuals and even its own quaint version of Main Street USA. But some said that prostitution came a little too close to home last week. A Needham police officer, and a member of the Norfolk County Police Anti-Crime Task Force, also known as NORPAC, couldn’t comment but did admit that the arrests were the result of a prostitution sting in this town.

Last week the Norfolk County Police Anti-Crime Task Force, following complaints, arrested two women for alleged prostitution, charging them with “alleged sexual conduct for a fee.” This is a violation of Massachusetts General Laws Chapter 272 Section 53A. Apparently the arrests were made as the result of an investigation that occurred over several months. That investigation is still ongoing. The two businesses where the arrests were made were the Needham Oriental Spa, and Best Body Work. Needham Oriental Spa also apparently is listed on a website called www.RubMaps.com, and it says that it offers patrons a “happy ending.” Previous to this, the last arrest for prostitution in Needham occurred in 2008.

Massachusetts sex offense charges can expose a defendant to serious, lifelong legal (and social) consequences. As a Westwood, Massachusetts sex crimes defense lawyer, I can assure you that cases like these often prove the adage “You can’t judge a book by its cover,” in that there is, as I like to say, always a story behind the story. If you have been arrested for prostitution, a Massachusetts sex offense or a Massachusetts sex crime, you may need a Norfolk County Criminal Defense Lawyer. Our offices are located in nearby Westwood, Massachusetts, and we have the legal expertise and experience to assist you.

A California trucking company, Inland Empire, hired two men to drive a tractor-trailer to Boston, a trip that driver Miguel Aguilar made at least 10 times in the past year. Last week Aguilar made the trip with novice driver Jose Cubias.

State police, working on a Massachusetts drug crimes investigation, pulled over the purple Volvo 18-wheeler with California plates. According to prosecutors, police asked the men a few questions. The suspects replied that they were California residents who were employed in that state, and they consented to a search of the vehicle. That’s when police found 66 pounds of cocaine and $570,000 in cash inside the vehicle.

Aguilar and Cubias were charged in Chelsea District Court on charges of Massachusetts drug trafficking and conspiracy to violate Massachusetts state drug laws. They were each held on $950,000 cash bail, and both men pleaded not guilty.

Now that the verdict is in on this case, the predictable debate over the insanity defense has followed in the vox populi. A number of media outlets have asked for my legal opinion on this verdict, and I’m proud to say that in the past 24 hours, I’ve appeared as a legal analyst on WGBH-TV’s Greater Boston with Emily Rooney, WBZ-AM Radio 1030’s Night Side With Dan Rea, as well as given interviews to New England Cable News and The Boston Herald.

Attorneys, editorial writers, bloggers and persons famous and unknown have opined about this case, this defense, and the verdict. Unscientific polls taken by some media (primarily the conservative talk radio show set,) have shown overwhelming support for the jury’s Guilty verdict. That’s understandable. Given that some of my statements to the media may have been received a little out of context, I’d like to put my position in writing for the record, here. For brief revisit of the insanity defense, see my previous post on this case.

A verdict of Not Guilty By Reason of Insanity does NOT mean that the defendant is released back into society, as though the verdict were simply “Not Guilty.” Essentially all defendants found Not Guilty By Reason of Insanity are committed to the state psychiatric hospital (Bridgewater State Hospital,) where they spend decades if not their entire lives behind bars and barbed wire. Also, a state “psychiatric hospital” is anything but a “hospital”, in the conventional sense of the word: It is the state prison for the criminally insane- surrounded by barbed wire, armed guards, searchlights, and everything you’d expect in a prison setting. While these defendants have a legal right to have their incarceration reviewed periodically, they are almost never released back into society. That’s just the practical reality.

Apologies to my readers for the gap since my last post: I was away from my office on a much-deserved trip. Today’s post is about a recent Supreme Judicial Court ruling, which doesn’t bode positively for many criminal defendants who, for a variety of legal and situational reasons, never should have been charged with a crime in the first place. (Yes, this happens a lot more than many people might think.)

Consider the story of one “Tina Boe”, a pseudonym used by court officials to describe the case of the following woman. There are actually two levels of errors that produced a considerable injustice here, so let’s take them one at a time: 1) In a hit-and-run Massacusetts car accident, “Ms. Boe” was mistakenly indentified as the driver of the car who ran from the scene after this accident. In fact, although this car was registered to “Ms. Boe,” she was not driving the car when the accident occurred – it was driven by another man. Because the license plate of the fleeing car was written down by someone at the accident scene and given to the police, the police department involved filed what is known as an “Application for Criminal Complaint” against the registered owner of the vehicle – “Tina Boe” – seeking that she be charged criminally with Leaving the Scene of An Accident, a violation of Massachusetts General Laws Chapter 90, Sec 24. The penalties for this crime vary, depending on whether the Operator is charged with one or more of three forms of this offense: A) Leaving the Scene of Property Damage only (Penalty: Fine of $20 to $200; and/or a jail sentence of between 2 weeks and 2 years); B) Leaving the Scene of Personal Injury Not Resulting in Death (Penalty: Fine of $500 to $1,000, and/or a jail sentence of between 6 months and 2 years); or C) Leaving the Scene of Personal Injury Resulting in Death (Penalty: Fine of $1,000 to $5,000 and/or a state prison sentence of 2 ½ to 10 years or jail for 1 to 2 ½ years. Regardless, for this offense there is a minimum mandatory 1 year sentence.) Even for the least of these charges, this is still a serious offense.

When a police department or anyone else takes out a criminal complaint against someone (which often involve offenses such as assault and battery, motor vehicle offenses or sexual assaults,) the person against whom the allegations are made is sent a notice by the court clerk where the complaint was filed, to appear at what is called a “Clerk-Magistrate’s Hearing” (alternatively referred to legally as a “Show Cause Hearing”.) At this hearing the Clerk or Assistant Clerk of the court hears from the person or organization filing the complaint (here, police department involved,) as well as the respondent (the person against whom the complaint was brought,) together with any witnesses. At that conclusion of that hearing, the Clerk will either grant the petitioner’s complaint, and issue formal charges against the respondent, or will deny the complaint, at which point the matter is dismissed, no charges are filed, and no further action of any kind is taken against the respondent. The respondent will have no criminal record of any kind related to that matter, nor will a Probation Record be generated from the matter. If ever asked by a potential employer or any other organization, “Have you ever been charged with a crime?“, the respondent can always answer “No.”

However, if the Clerk allows the complaint, formal charges will then be issued against the respondent, who then instantly becomes a “defendant” in a criminal prosecution. A formal Massachusetts Criminal Offender Record Information (CORI) file is generated, reflecting that the person has been charged with a crime, an accompanying Massachusetts Board of Probation Record is generated, and the relevant District Attorney’s Office takes over to prosecute the case. How it ultimately turns out, always varies. But even if the defendant is ultimately found not guilty of the charge(s), that person will still always have a CORI, and a Board of Probation Record. Therefore, when an Application for Criminal Complaint has been taken out against someone, what happens at such a Clerk’s Hearing (“Show Cause Hearing”,) is extremely critical.

Which brings us to Mistake Number Two in this case: The day Ms. Boe went to court to appear at this Clerk’s Hearing, she was mistakenly directed to the wrong hearing room. Because the Clerk and the police prosecutor awaiting her determined that she “never showed up”, the Clerk allowed the complaint, and formal charges were issued against Ms Boe. At that point, all the negative consequences that I just outlined above (when a complaint is granted against someone,) became a reality for “Tina Boe” – a completely innocent person.

When criminal charges were formally brought against Ms. Boe, and Judge Kathleen Coffey of the Boston Municipal Court learned of these twin errors and the injustice that resulted, she granted a motion the defendant filed, called a Motion To Expunge the Record. As its name implies, this is a Motion to essentially erase the fact that criminal charges were ever even brought in the matter. Its specific purpose is to redress a glaring injustice done to a defendant, when it appears from all the evidence introduced, that the defendant never should have been charged by the Commonwealth in the first place. The judge’s order in this case directed the state Commissioner of Probation to expunge (essentially remove from all public records,) Boe’s CORI and Probation Record. This is fair and just relief, and indeed, Judge Koffey described it as such in her Order.

However, the state Commissioner of Probation didn’t wish to comply, and appealed the judge’s ruling to the Massachusetts Appeals Court, questioning the judge’s authority to issue such an Order. Soundly, the Appeals Court denied the Commissioner’s appeal. When the matter finally appeared settled at that point, the SJC got involved – and ruled that the judge lacked the legal authority to grant the Motion to expunge the record in this case.

In my legal opinion as a Boston criminal defense lawyer, this ruling lacks the fundamental fairness that should emanate from the state’s highest court. While the opinion may be technically accurate in terms of its analysis of the authority that a District Court judge has, it flies in the face of the spirit – and the practical meaning – of the word “justice”. While the court did rule that judges have the authority to seal criminal records – and that judge Koffey could order Tina Boe’s record in this matter sealed – that does little for this defendant as a practical matter. She still has a CORI; she still has Board of Probation record – and always will have both. If she is ever asked in the future by a potential employer, academic institution, or any other organization if she has ever been “charged” with a crime (even though she wasn’t convicted,) she must answer “Yes.” And within this entire matter, she was completely innocent – she wasn’t even present at the scene of the crime.

As I’ve noted before, my law school professors used to tell me, “Bad cases make good law”, meaning it’s the tough rulings that can often serve higher purposes later on. Perhaps, but tell that to whoever “Tina Boe” really is. I don’t think she’d agree. Aside from the wake-up call to reality that this ruling should bring to the SJC, what this case illustrates is the extreme importance that attaches to the outcomes of Clerk’s Hearings, or Show Cause Hearings. Because these hearings often do not involve a preceding arrest of the person against whom the complaint is brought, they are sometimes perceived by respondents as not being very serious, or requiring a lawyer’s expertise. Such a view couldn’t be more foolhardy. If you or someone you care about has received a notice to appear at such a hearing, whether the complainant is an individual person or a police department – always hire an experienced Massachusetts criminal defense attorney to appear and represent you at this hearing. If you don’t and the complaint is allowed, the consequences will follow you for many years to come.
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