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William D. Kickham
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By now, most people have been exposed to what was the seemingly constant drumbeat of the recent Harvey Weinstein sex assault trial and convictions.  What’s interrupted this, of course, has been the media overkill on Coronavirus, but if that hadn’t diverted their attention, they’d still be pounding this drum.  For those of you who have forgotten the details, Weinstein faced several sex assault charges:  1) One count of first-degree criminal sexual act, two separate counts of rape and two counts of predatory sexual assault.  The charges were brought in state Supreme Court in New York.

Weinstein was convicted on two counts:   Committing a first-degree criminal sex act involving one woman, and of rape in the third degree concerning someone else.  He was acquitted of the charges of predatory sexual assault involving the two women and also acquitted of the one count of first-degree rape.

The charges and convictions were based on testimony by two actresses:  Miriam Haley and Jessica Mann, who wanted to perform in films that Weinstein’s company was producing.  Haley testified that in 2006 Weinstein forced oral sex on her, and Mann testified that Weinstein raped her in 2013, in the context of what she described as an abusive relationship.  Four other women, including actress Annabella Sciorra, also testified that Weinstein “sexually attacked” them, as part of his alleged attempts to use his influence in Hollywood in order to leverage sexual liaisons with current or aspiring actresses.

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I’ve written previously in this blog about how unfair the federal Department of Education’s “guidelines” to colleges & universities has been over the past few years, regarding how colleges should conduct investigations and hearings on matters involving accusations of student sexual misconduct.  This system, known as “Title IX Investigations”  is tremendously unfair, and weighted in favor of the accuser.  Title IX is a federal law that was originally intended to be an anti-discrimination law, but it has expanded over the years to include not only claims of  sexual discrimination, but also sexual “harassment” as well as sexual “assault” – both of which are currently defined under extremely broad, all-inclusive terms.  Colleges and universities that receive federal funds  – which include the vast majority of universities in the U.S. risk losing enormous sums of money in federal funding – tens of millions per year at many schools – if they do not adhere to Title IX regulations.

These guideline notices were sent out to all colleges & universities across the country under the Obama administration. Known in the university community as “The Dear Colleague Letter” when it was sent to colleges across the country, it was effectively a threat, however veiled it tried to be.   The main thrust of this letter:  Colleges & universities were reminded that if they did not adhere to U.S. Department of Education guidelines on sexual misconduct investigations, they could potentially lose federal funds.  That’s massive amounts of federal funds given to individual schools, annually, all across the U.S.  The letter’s translation:  “Do what we at the U.S. Department of Education say regarding these campus sexual assault hearings guidelines, or we’ll yank all the millions in federal funds that you so love.”  In response, schools across the country complied with the “suggested guidelines”, and constructed archaic investigative and disciplinary procedures that overwhelmingly favored accusers over the accused.  These new protocols were given added life in the wake of the #MeToo ‘movement’, and the net result is that many college students accused of “sexual misconduct” have been railroaded off campus, with a school disciplinary record that will effectively haunt that student at whatever school they might attempt to transfer to. Continue reading

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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.

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This is a question I’m asked very often.  And there’s a reason that the question is on so many people’s minds.  The answer has to do with the extremely severe legal and, yes, political, environment that surrounds the availability of and issuance of restraining orders in Massachusetts.  These Orders fall under the category of Massachusetts Domestic Violence laws.

For starters, while everyone calls these orders “restraining orders” (and there is no problem doing that,) legally speaking, they’re known as “Abuse Prevention Orders”.  They are authorized by statute through M.G.L. Ch. 209A, and as a result are referred to informally by attorneys, police Departments and court personnel as “209A Orders”.  Anyone falling within certain statutory definitions can apply to a court for one of these orders, so long as the following conditions are met.

  • The applicant must be in fear of imminent, actual harm from:
  • Another person who is a member of the applicant’s immediate family; OR
  • Another person who residing in the same household as the applicant; OR
  • Another non-related person who is not married to the applicant, but who is in an ongoing dating relationship who the applicant.

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In my previous post on this subject, explained that I believe that Suffolk County District Attorney Rachel Rollins is ill-fit for the job of top county prosecutor in Boston.  My view is that her views on the purpose and role of prosecutor – offered by her under the guise of being a “criminal justice reformer” – (how vaguely ‘positive’) endanger the public safety, and in fact frustrate the goals of criminal justice, instead of advancing them.  As it turns out, the timing for this second post could not be better, and the reason for this is the embarrassing and dangerous conduct Rollins put on full display in Boston Municipal Court these past few days.  Those actions followed the arrest by Boston Police of approximately 36 defendants at last weekend’s Straight Pride parade in downtown Boston.  Many of those defendants were charged with violently attacking not only parade participants, but Boston police officers as well.  At least four officers were injured seriously enough to not be able to report to work following these assaults.

Almost all those protesters arrested at the Straight Pride parade were members of a violent leftist extremist group calling themselves “Antifa” (supposedly, for anti-fascism).  This group is known for advocating violence to achieve their leftist (socialist) objectives, and in order to hide their identities many of them wear black hoods (remind you of anything similar, in U.S. history?)   According to official statements from the Boston Police Patrolmen’s Association, many of these individuals came here from outside Massachusetts, specifically to agitate and engage in violence at this licensed parade. As a Boston criminal defense lawyer with more than 30 years of experience, I very much believe this assessment by the police union.   Further, these protesters were witnessed by hundreds of people along the parade route, screaming profanities at parade participants, making obscene gestures, and shouting threats of physical violence against anyone in the parade who dared to disagree with their views.

Many of these protesters were seen hurling containers of liquid at parade marchers that were later determined to contain dangerous and caustic ingredients, such as bleach, other dangerous chemicals and even urine.  Their threats of violence escalated to actual violence when many of these protesters rushed the parade marchers, physically assaulting and battering them.  When Boston police officers rushed in to stop the mayhem, these protesters then attacked the police officers themselves.  The attacks against police became so severe that officers were forced to use pepper spray against them.  These protesters, mind you, are liberal extremists that promote themselves as seeking “peace”, “equality”, and “social justice”. Continue reading

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I have a major issue with Suffolk County District Attorney Rachel Rollins.  I believe that this new District Attorney – an elected position whose job it is to be the chief prosecutor for Suffolk County – is acting in ways that are contrary to the responsibilities of that office, and contrary to the interests of public safety.

Before I explain why, a little primer on the operational structure of the criminal court system in Massachusetts:  Courts in Massachusetts, both District Courts and Superior Courts, are organized by county.  There are 14 counties in this state, running from Berkshire County, Hampshire County and Hampden County in western-most part of the state, to Barnstable County, Dukes County and Nantucket Counties in the eastern-most parts of the state.  These counties vary in size and political demographics, with Middlesex County having the largest population (approximately 1,500,000) and Nantucket County the smallest population (approximately 10,000).

Criminal cases in each county are prosecuted by the District Attorney’s office in that county.  While those cases are in everyday practice prosecuted by dozens of appointed Assistant District Attorneys in each county, the District Attorney is an elected position:  He or she is, whether they like to say so or not, a politician who runs for elected office.  The DA is the chief prosecutor in each county, even though almost none of the elected DA’s actually tries cases in court.  Nonetheless, each elected DA is the figurehead for that particular county District Attorney’s office.  Their job responsibility is singular:  Prosecute persons who have either been arrested, indicted, or otherwise charged with criminal offenses in that county.  Their jobs are to ensure public safety and public order.  Indeed, reflecting this public responsibility, they are by state statute considered law enforcement officers.

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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.

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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.

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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:

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Most of my time as a Massachusetts criminal defense attorney is spent on defending very serious charges, such as Massachusetts sexual assault charges, Massachusetts domestic violence charges, Massachusetts larceny charges, Massachusetts drug charges, and more.  But life here in Massachusetts can be made miserable on a legal level in more ways than being arrested for a very serious criminal offense.  To illustrate, I’ll open this post with this news excerpt: “Federal prosecutors say troopers from a troubled State Police unit had a quota system for issuing tickets to motorists, a practice that state courts have deemed unconstitutional and agency officials have repeatedly denied exists.  Members of the now-disbanded Troop E were expected to issue at least eight citations during their shifts under a specialized overtime program, which dozens of troopers allegedly abused to collect fraudulent overtime, according to prosecutors.”

This excerpt, from a news story in the Boston Globe, pretty much sums up the background of this post:  For many years, despite evidence to the contrary, the Massachusetts State Police has denied that they in any way had a quota system for motor vehicle citation that troopers were expected to meet.  Sorry – that was a lie.  In the wake of the state police overtime scandal last year, in which The Globe and other news media outlets revealed massive and shocking abuses in overtime pay for state troopers, it has now come to light that Massachusetts state troopers did, indeed, operate under a hidden quota system for Massachusetts motor vehicle violations.  This means that thousands of drivers over the years were cited and fined for “violations” that they were not responsible for.

Making matters even worse?  The troopers who regularly met these unwritten ‘quotas”, were rewarded for it.  How?  With the ultimate prize in the state police system:  Generous overtime shifts, which paid enormous sums of money, and went routinely un-challenged by the state agency responsible for paying them.  Some state troopers made as much as $300,000 in one year – most of it through very lucrative overtime shifts.  And the state police department was not the only police department engaged in this practice – several local departments were, also.  The Lowell Sun reported in 2015 that police officers in Dracut revealed that that department also had a quota system.  Officers in the towns of Abington and Sutton even sued their employers after they were retaliated against for complaining about such a system.

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