William D. Kickham
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Reacting to several recent tragedies where criminal defendants killed police officers and innocent civilians while they were free on bail before trial, Gov. Charlie Baker filed legislation last Thursday that would make it easier for judges to keep in jail dangerous defendants that are charged with felony offenses.

Baker’s bill largely focuses on the state’s “Dangerousness Statute”, M.G.L. Ch. 276 Sec. 58A, which allows District Attorneys to request a “Dangerousness Hearing” where prosecutors ask a judge to hold a defendant in custody while that defendant awaits trial, instead of releasing the defendant.

Under the governor’s proposal, the list of crimes that trigger the prosecution’s right to a dangerousness hearing would be expanded to include assault and battery against a police officer, several additional sex crimes, as well as human trafficking.  Another important change the bill proposes, is that judges would not be prohibited, as they are now, from taking into account a defendant’s criminal history when making his or her ruling on the issue of a defendant’s dangerousness.  That’s a major change.  In addition, prosecutors would be allowed to seek a dangerousness hearing at any stage during a criminal case. Presently, if the prosecution wants to requests a dangerousness hearing, it can only do so only at the defendant’s arraignment, not later – so it has only one chance to ask a judge to hold a defendant in jail before trial. The governor’s bill would expand that ability. Continue reading

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My post today requires an important caveat at the start. It concerns Massachusetts drunk driving charges – and I want to be very judicious and careful in writing this material. I don’t want my readers to take away the wrong message from it. So I will reiterate what I have said many times before, in writing and in comments to the media: Drunk driving, driving while intoxicated, driving while impaired, or any of several other terms of art commonly utilized to describe driving drunk or drugged, is NOT “okay.” It is NOT acceptable. And in my view as a Massachusetts OUI defense lawyer,aside from important legal issues, it is not morally acceptable to knowingly drive while drunk or chemically impaired. To do so while knowingly impaired, can be the moral equivalent of saying, “Yes, I could kill someone with this one-ton construction of steel and glass, but I don’t care – I’ve got someplace to go.”

Thus, I want to be very judicious here, and not send the wrong message about drinking and driving being in any way “okay.”  However, it is also a very important fact that many, many people are stopped and arrested by Massachusetts police departments every month and year, and charged with drunk driving when they were not legally drunk at the time they were arrested.  Every defendant accused of a crime deserves a vigorous and zealous defense, and that includes such drunk defendants, as well.

At this time last year, I wrote of how a dedicated group of Massachusetts criminal defense attorneys had exposed a cover-up involving defects surrounding the most common breathalyzer machine used by the majority of Massachusetts Police Departments. The cover-up wasn’t initiated or participated in by any of the state’s 11 District Attorneys’ offices across Massachusetts. Ultimately, it turned out that the Massachusetts Office of Alcohol Testing (OAT) was responsible for attempting to cover-up widespread failures of the Drager 9510 Breathalyzer, which has been the most commonly used breathalyzer in Massachusetts for several years. The story broke in 2015, when the Massachusetts Executive Office of Public Safety office first acknowledged that “some” breathalyzers were flawed.

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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

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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.

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Governor Charlie Baker signed legislation reforming a considerable amount of important laws in the Massachusetts criminal justice system this past April. So, how have those changes been going, on a day-to-day basis in the courts? At only 90 days out from the bill’s signing, it’s a little hard to say, but here’s a quick review of how the principal changes will affect day-to-day prosecutions in Massachusetts courts.

Bail reform

This is one of the more controversial aspects of the bill Gov. Baker signed. Historically, when a prosecutor requested bail, a judge was required to take into consideration over a dozen separate factors in setting bail, partially including:

  • The Nature and Circumstances of the Offense: How serious is it?
  • Family Ties. Does the defendant have any?
  • Employment.
  • Length Of Residence. This is important, as a defendant who’s been living in Massachusetts for many years is much more likely to not ‘jump bail,’ than is someone who has no residence here..
  • Prior Court Defaults. Has the defendant ‘skipped bail’ previously?

One thing that a judge was never required to consider, though, was a defendant’s ability to pay. Now, the new law requires that judges take into consideration the defendant’s ability to pay a given amount of bail – and furthermore, the judge is now required to justify in writing instances where bail is set high enough to prevent a defendant’s release. That provision in the bail reform provision of the criminal justice reform bill, was triggered principally by an August 2017 ruling by the Supreme Judicial Court that ordered lower judges to consider a defendant’s ability to pay a given amount of bail. That decision angered more conservative members of the Legislature and the public, and I can understand why. Continue reading

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Leave it to the federal government to complicate everyday life beyond reason, to make the simple difficult, to make that which should be easy, hard. How? Because an arguably obscure federal law has now caused Massachusetts state officials to encourage local police chiefs to revoke the Licenses To Carry a firearm (LTC) of almost 350 people who have been previously issued lawful TLC’s by their local police chiefs.

Some necessary history:

Back in 2004, Massachusetts created the Firearms License Review Board to hear petitions from residents who were denied an LTC due to prior misdemeanor convictions, such as Massachusetts OI/DUI, but who nonetheless wanted wanted to be issued a license to lawfully carry a firearm. Continue reading

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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:

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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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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. 

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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