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William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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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.

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:

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.

Here’s a twist on an old issue involving Massachusetts rape charges: A victim claims she/he was raped. Importantly, before going further, let’s make sure that we understand what the legal elements of rape are in Massachusetts, which are as follows:

1) Penetration of any bodily orifice by any part of the body, or by an object, performed against the victim’s will,

2) Without the victim’s consent, and

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.)

In my immediately preceding post on this subject, I discussed the background of how it was discovered that a high number number of breathalyzer test results in Massachusetts OUI/DUI cases across the state, were tainted by failures by the Massachusetts Office of Alcohol Testing (OAT) to either make sure that their testing equipment was calibrated properly, as well as that office intentionally withholding exculpatory evidence in a variety of OUI prosecutions. All this litigation began back in 2015, and a decision was ordered in February 2017, which mandated that breath test results prior to September 2014 be presumptively excluded at OUI prosecutions in cases within the affected date range, since OAT had not established written protocols for the annual certification of the Drager Alcotest 9510 units, which are the most common breathalyzer machines used by police departments across Massachusetts. When the attorneys who brought the suit discovered that the court did not have the exculpatory documents from the OAT when the February 2017 ruling was made, the defendants’ attorneys filed a motion to re-open the case, and consider what sanctions against the Commonwealth were appropriate. Judge Brennan then asked the parties to meet and try to negotiate a resolution to the motion, and a settlement was negotiated, signed by all prosecutors offices, and accepted by the court in May of 2017. Continue reading

As I’ve reported on previously in this blog, the office within the Massachusetts Department of Public Safety & Security that is responsible for the maintenance and annual certification of Breathalyzer machines used by police departments in Massachusetts – the Office of Alcohol Testing (OAT) – has for over two years been embroiled in a scandal over its inability to properly conduct alcohol breath tests in OUI/DUI cases. In fact, certain attorneys who regularly defend Massachusetts OUI/DUI cases discovered that patterns were emerging over two years ago with these breath test results, after they studied a variety of the alcohol testing worksheets that were provided to the court by OAT, Based on those suspicious test results, Springfield Atty. Joe Bernard filed a motion for sanctions (penalties) against the Commonwealth, citing the Commonwealth’s intentional withholding of exculpatory (i.e., potentially exonerating) evidence, on behalf of selected Massachusetts OUI/DUI defendants. The suit against the Commonwealth that these attorneys brought, alleged that OAT had intentionally withheld virtually all of the annual Draeger Alcotest 9510 certifications – some 432 of them – that had failed to produce passing results.

Stunningly, it was discovered that OAT was doing this all over the state. It’s important to clarify a key point here: None of the 13 separate county District Attorneys’ offices across Massachusetts appeared to be aware of what was being done by OAT, nor is there any evidence that any prosecutors cooperated with OAT to produce these false test results. Procedurally, it’s important to understand how breathalyzer tests are used in a Massachusetts DUI/OUI case: Once a police officer administers a breathalyzer test to a driver, if that breath test result indicates that the operator registered a .08 or higher Blood Alcohol Content (BAC), and the operator is then arrested and prosecuted for drunk driving, the breath test result becomes the key evidence in plea negotiations or trial. The annual certification is employed to make sure that the machine results are correct. What was discovered in the litigation surrounding the Draeger Alcotest 9510, was that OAT, for 20% of those certifications, had intentionally and widely withheld problem certification results, to heighten the likelihood of convictions. A central focus of this litigation were these withheld alcohol testing worksheets, which are supposed to provide a foundation for each breathalyzer test result produced by OAT. The litigation surrounding this issue was consolidated before a single judge of the District Court Department, Judge Robert Brennan, for ultimate resolution.

Let me make an important point here, as a Massachusetts OUI/DUI defense attorney: While I fight tooth and nail for all my criminal defense clients – in all kinds of criminal defense cases – I also believe that law enforcement has a right and a responsibility to keep us all safe when driving on the roads in Massachusetts. Every state has that right and responsibility. It’s very possible that you are alive and well and reading this post, because a drunk driver was pulled off the road at some point in your past, who might have otherwise hit you or a loved one. So I do not oppose reasonable laws that are enforced responsibly and legally, as they are intended to. But when government agencies intentionally break the law and falsify documents in order to convict people that might otherwise be proven innocent of a criminal charge, that is entirely unacceptable, and those responsible must be made accountable, and the entire system re-vamped to assure that future such actions do not occur.

Here we are:  The end of another year.  Or, as John Lennon once wrote, “Another year over, a new one just begun” (at least, a few hours from now.)  I thought of what to say to my readers as a Boston criminal defense lawyer on this final day of the year?   There a lot of things I could talk about, each at some length:  Massachusetts domestic violence charges; Massachusetts drug charges; Massachusetts sex offense charges; Massachusetts larceny charges; Massachusetts show-cause hearings, on and on.   But there’ll be plenty of time to talk about those important topics, and of how everyday people can become charged with these crimes, a few days from now, in the new year.

Right now, I want to talk about how readers can start the new year positively and intelligently – today.  Whatever you do today or tonight at New Year’s Eve festivities – whether in public facilities, restaurants, nightclubs or private homes – do not drive after drinking alcohol.  One drink within 90 minutes can leave some people legally impaired – i.e., registering a blood alcohol level (BAC) of .08 or higher.  Of course, police checkpoints – visible and hidden – will be everywhere in Massachusetts tonight – and this exponentially increases drivers’ chances of being arrested for operating while under the influence.  These seen and unseen police patrols are necessary and appropriate to assure everyone’s safety.  But even if an intoxicated driver weren’t caught by police, no such driver should consider that a “win”:  It’s still quite bad.  It’s downright foolish conduct to drive any motor vehicle after having had more than one drink over a 75-90 minute period – a single beer, glass of wine, or cocktail.  All of these contain the same amount of alcohol, and all can impair a driver’s perception, reaction and response time.   And that impairment can mean the difference between life and death – potentially your own,or worse, an innocent person. Courting this kind of terrible risk is simply not worth a “buzz.”

As a Boston OUI defense lawyer, I fight tooth and nail for my clients – guarding their every legal right at every stage of the prosecution.  But that’s after an arrest has been made:  After you’ve been charged and your life has been turned upside- down.   No one really wants to have to go through that kind of stress and financial expense.  So start the year off smart:  If you’re going to drink tonight — or take part in any marijuana (that’s another legal topic that I’ll be discussing soon, with the expanded roll-out of Massachusetts recreational pot shops), get a designated driver first:  Someone who swears off on having a single drink or toke.  If you can’t find a designated driver, call Lyft or Uber.  Both ride-sharing services have special programs for New Year’s Eve, that provide discounted rides for New Year’s Eve and New Year’s Day.  Click here to learn more.

My previous post on this subject discussed new regulations proposed by U.S. Education Secretary Betsy Devos, for use by colleges and universities that investigate allegations of sexual abuse, sexual assault or sexual harassment by students. Under the proposal, fewer allegations would be considered “sexual harassment”, and colleges and universities would be responsible for investigating only incidents that are related to campus programs and activities, that were reported to school authorities. Importantly, schools would be allowed to apply a higher legal standard when weighing evidence, than the lower standard of “preponderance of the evidence” that was encouraged by the Obama administration. I thoroughly endorse this change, as the correct evidentiary standard to apply when considering such serious criminal allegations, is, as anyone who has ever watched a crime show on TV or read a legal thriller is aware, “Beyond a Reasonable Doubt.”  Keeping that higher standard of evidence is critical when such serious accusations of sex crimes are leveled at a student.

Another major change in the proposed federal regulations, allows defense attorneys representing accused students, to cross-examine accusers and witnesses. As a Boston sex crimes defense attorney, I was stunned that the Obama administration would ever suggest the elimination of this central procedural safeguard. How anyone could ever claim to argue that any investigative process could ever reflect due process, or be substantively fair in any way without allowing the accuser to be cross-examined, is beyond me. This procedural right is central to any investigative or adjudicative process to ferret out the truth of any given criminal charges, and that this fundamental right was ever abandoned, was an outrage.  Shamefully, but not surprisingly, the association representing university presidents, the American Council on Education, has issued statements actually criticizing the restoration of this fundamental procedural safeguard when investigating or prosecuting accusations of criminal conduct. One excerpt of their comments: “[Restoring the process of cross-examination] goes too far in incorporating legal concepts into a school disciplinary setting. This would permit one student to hire a highly paid legal pit bull to grill another student in a campus disciplinary hearing. We are not courts. I’m not sure we should try to act like courts.” Continue reading

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”

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