Articles Posted in General

In my previous post, I talked about the legal mechanics of how someone might be falsely accused in court of a crime. If you’ve been accused falsely of a crime, such as Massachusetts assault and battery, what are the steps you should take? Pay attention to the following:

1) Do not take the matter lightly, no matter how unimportant the charge may seem to you. Too many people think that unless the accusation is extremely serious, such as a Massachusetts sex offense, they needn’t take the matter seriously. Or they think, “I’m innocent, and the judge or jury will see this.” Not true. If you are charged and found guilty of the least serious of Massachusetts crimes, you will still have a criminal record, all your life. The record is open, public information, and will follow you everywhere. That is not good. Period.

2) Do not skimp on either the qualifications of the attorney you hire, and do not skimp on the expense of the attorney’s fee. Don’t go “bargain-hunting” for your defense attorney. Find an experienced and successful Massachusetts criminal defense attorney – and unless the fee is clearly unreasonable (e.g., 4 or 5 times what other lawyers charge,) then find a way to pay for it. Many criminal offenses carry a high risk of conviction, and trying to “save money” on a matter as important as this, is not a smart move. Make sure that your choice of defense attorney has handled – successfully – at least dozens of the type of case that you are facing. Too many people in such situations think that if they hire an attorney who handles these types of criminal cases only “now and again,” and hence charges a low fee, they’ll be alright. Thinking this way is a big mistake, and if you make either of these mistakes, you will probably find yourself in a much worse legal situation than you started out with. Ask the attorney for references. Ask anything that comes into your mind.

One of the most upsetting things that can happen to anyone is to be falsely accused of a crime that you did not commit. While certainly police departments can sometimes unintentionally conclude that a person has committed a crime that in fact he or she did not commit, most of the time that false accusations are made, they are made by a party to a dispute, or within the context of a Massachusetts domestic violence case.

While it would be comforting to think that the criminal justice system and the courts will inevitably “see” that an innocent person is, in fact, truly innocent, and that it will exonerate anyone falsely accused, thinking this way would be extremely unwise. As a Dedham, Massachusetts criminal defense attorney, I can assure you: If you have been falsely accused of a crime, you must marshal all the evidence, assets, and legal resources that you have, to defend yourself vigorously against any charges.

The seriousness of any criminal charge will, of course, depend on the particular crime that a person is accused of, and the accompanying criminal penalties. As a Norfolk County Massachusetts criminal defense lawyer, I’ve defended clients that have been wrongfully accused of all kinds of offenses, from Massachusetts rape and sexual assault charges, to accusations of Massachusetts assault and battery, to Massachusetts kidnapping charges, to Massachusetts OUI./DUI offenses, to Massachusetts gun & firearms offenses. While some offenses are more serious than others, all Massachusetts crimes carry considerable penalties.

Springfield, Massachusetts has been suffering recently from a spike in violent crime; most of it gang and drug-related. That’s not an easy environment to live in, or work in. This is especially so for police officers that are assigned to violent crime units. These units can be either plainclothes or uniformed, and either way it is difficult and often highly dangerous work.

This reality was put on full display last Saturday, April 30, when a prison inmate held at Massachusetts Correctional Institute/Shirley escaped, and headed to Springfield to reportedly avenge the recent, non-fatal shooting of his mother on April 23. No arrests have been made in that shooting. MCI/Shirley is a minimum-security state prison. The convict, Tamik Kirkland, 25 and originally from Springfield, reportedly made his way to a barbershop on State Street, where he shot two men, a barber and a customer. The customer was killed in that shooting, and the barber critically wounded. Police have not yet released the names of either man. After the shooting on State Street, Kirkland allegedly fled to a Cambridge Street residence, where he opened fire on police from the trunk of a car where he was hiding. At a press conference held outside Springfield Police Headquarters late Saturday afternoon, Springfield Police Commissioner William J. Fitchet. Fitchet said that after the State Street shooting, Kirkland fled up Montrose Street on foot. Based on intelligence that police had about Kirkland, they sped to a duplex that they suspected that Kirkland had ties to, and where believed that he would run for assistance. Special police units watched a silver sedan back into the driveway at that location, and saw Kirkland jump into the trunk. As the car tried to exit the driveway, police surrounded it, pulling a female driver from the car.

Fitchet said that before police were able to pull the female from the car, “The trunk had been popped the suspect (emerged from the trunk) and started shooting It happened over a matter of seconds.” A Springfield police officer, Raul Gonzalez, a 15-year veteran of the force, was hit with gunfire in the chest, as was an unnamed Massachusetts State Police trooper. The only reason these officers were not killed or not critically wounded is because each of them was wearing a Kevlar vest. Both officers returned fire on Kirkland, shooting him several times. Kirkland is in serious condition but is reportedly recovering from his wounds. The back-to-back shootings prompted an immediate and massive police response – due to both officers being down and because Kirkland was already being hunted by a fugitive task force.

Gov. Deval Patrick likes to fashion himself as a typical “man-of-the people” Democrat. Except that he’s anything but that, and knows very little about the everyday workings of the “average person” on the street. That should come as no surprise to anyone, given that he’s a multimillionaire who made his money in the corporate world, but his latest legislative proposal concerning legal practice only underscores his cluelessness about real world economics, and the way state government really, actually works.

Patrick’s latest proposal revolves around how indigent criminal defendants are provided legal counsel in Massachusetts. As anyone who’s ever heard of the Miranda Rights knows that if a person is charged with a crime in any state in the United States, and cannot afford an attorney, one will be provided for him or her free of charge. Different states fulfill this federal requirement in different ways. In Massachusetts, for decades now, defense lawyers for indigent criminal defendants have been provided almost completely by a network of private attorneys, who are contracted with the state to provide these services. The agency that administers this program is called the Massachusetts Committee for Public Counsel Services (“CPCS”,) and operates under the Massachusetts Judicial Branch.

These attorneys, known as “Bar Advocates”, must first complete appropriate CPCS training and certification requirements before they can become eligible to represent indigent criminal defendants. It is Bar Advocates who defend 90% of indigent defense cases in courtrooms across the state, from Pittsfield to Provincetown; Methuen to Martha’s Vineyard. The other 10% of these cases, the vast minority, are handled by lawyers who are full-time state employees, complete with annual salary and benefits. Private duty Bar advocates are paid anywhere from $50 to $65 per hour, to defend people charged with a variety of crimes, 99% of which can land them in jail for anywhere from a day to life. However, court-appointed attorneys also represent indigent clients in extremely important non-criminal cases, such as representing families that are involved with the Department of Social Services, and people who are at risk of civil commitment and forced medication.

The Supreme Judicial Court ruled this week that foreign nationals, including illegal aliens, must be provided with the opportunity to be in contact with diplomats from their home country when facing criminal charges in Massachusetts. The court ruled that the right is guaranteed by the Vienna Convention, which is an international treaty adopted by the United States in 1969.

More so, the SJC also ruled that foreign nationals who are convicted of a Massachusetts crime will be allowed to seek a new trial if they can satisfy two tests: 1) That they were not informed about this right; and 2) That the lack of this information played a role in their conviction. At least one prosecutor reacted to the decision by saying that it has the potential to unleash a flood of costly litigation. Essex County District Attorney Jonathan W. Blodgett commented that “There is no limit to this, we will be flooded with motions for a new trial.” Blodgett asserted that even though the Vienna Convention is a treaty between sovereign nations, the SJC has made a foreign treaty part of the fabric of individual rights in Massachusetts. Blodgett plans to file legislation asking the Massachusetts Legislature to reverse this decision. On the opposing side, immigration lawyers and criminal defense lawyers say the court’s ruling merely reinforces rules that have already been on the books in Massachusetts for many years.

The unanimous 7-to-0 ruling noted that even though the United States had ratified the Vienna Convention in 1969, the International Court of Justice in The Hague ruled in 2009 that the United States had not complied with the Convention’s rules on diplomatic contact when dealing with Mexican nationals. Justice Robert Cordy wrote that Massachusetts will now take steps to bring the state into compliance with that treaty: “In order to enable the full effect to be given to [the Vienna Convention], we conclude that the notifications it requires must be incorporated into the protocols of the state and local law enforcement agencies of Massachusetts.”

In my previous post on this subject, I discussed how the U.S. Supreme Court is currently weighing the constitutionality of a statute passed by the state of California in 2005, to limit the sale of graphically violent, interactive video games to minors under the age of 18.

Once again, the First Amendment is front and center here. This Amendment to our constitution – literally, the first Amendment made to it, allows us all to speak openly against the government, a fundamental right that many nations do not allow their citizenry. There are forms of speech that are not protected by the First Amendment, such as obscenity. Other forms of such “unprotected speech” include speech which creates a “clear and present danger” of imminent illegal action; speech which contains narrowly predefined “fighting words”; written or spoken falsities (libel or slander, which can be punished by civil suit); and speech that is restricted because the government can demonstrate a “narrowly tailored” “compelling state interest”.

So free speech is not absolute, but in my view as a Boston criminal defense lawyer, the meaning of the First Amendment has been distorted in recent years to allow for all manner of violence and savagery to be paraded throughout our nation – under the aegis of “free speech.” The result has been a “quicksand effect”, dragging down a nation that was once admired for its morality and decency, to a country infected with violence, moral perversity and the cultural degradation that accompanies such permissive thinking.

Each October, the Supreme Court of the United States (SCOTUS, in the legal community,) hears arguments on cases that it has announced earlier in the year, that it will hear. Last month, it heard oral arguments on a California law that sought to ban the sale or rental of violent video games to teenagers under the age of 18. What happens with this decision, which may be announced next June (2011) will impact the moral direction of this country in ways that most people cannot yet even imagine.

As I wrote this post, I considered where I should publish it: Here on my criminal law blog, or on my Boston Accident Lawyer blog. I decided to publish it here, not only because the issues involve criminal law, but for a more important reason: I consider the gradual erosion of decency, dignity and public morality in this country to be a crime. I also consider it a “crime” (symbolically speaking) that we have a Supreme Court that routinely fails – using liberally expanded interpretations of the First Amendment and definitions of “free speech” – to allow state and local governments to enact laws that will stem the rapidly growing spread of violence and barbarism that infects our nation. I say this as a Boston criminal attorney who believes that the court should always intone the First Amendment to safeguard the individual’s right of free speech against government. I do not believe the First Amendment should be misused to allow any and all kinds of speech, no matter how destructive or dangerous, anywhere, on any subject, in any form, at any time. That is not what the First Amendment was intended to protect, and its perversion has produced devastating social and cultural effects in this country.

This current case before the Court is not a standard, run-of-the-mill case about the First Amendment and “free expression.” Nor, despite its facial appearance, is the case really about “commercial free speech.” Don’t let liberal-leaning reporters and writers fool you that this case is about such high-minded, deep-thinking constitutional principles (though, as with all cases before the Court, this case does involve constitutional issues.) This case is about moral integrity, and human integrity. It is about the protection of minors, whose brains under the age of 18 are not fully developed and medically proven to be vulnerable to the suggestive and pernicious effects of violent imagery. It is about the protection of our country from the rapid and virulent infection of violence that plagues seemingly every corner of our society – from gritty urban streets, to bucolic rural towns in New Hampshire. It is about the protection and promotion of dignity and decency – and of the rapid decline of those once so American of values. In essence, this case is about the frighteningly rapid degradation of morals and the escalation of savagery in this country, accelerated under the aegis of “free speech” and “constitutional principles.” Make no mistake: This case will be a barometer of where this country is headed – sinking into an ever-deepening sewer of moral filth and cultural degradation – or rising once again to be the decent, values-laden country that it once was.

Here’s an interesting case – controversy, actually – that involves a hybrid of criminal law and tort law – specifically, the tort of wrongful death.

Famous television legal journalist Nancy Grace is known far and wide for her aggressive, take-no-prisoners on-air persona. Her interview style is very probative, and she doesn’t let evasive interview subjects off the hook easily. Ms. Grace is a former prosecutor, and it forms her approach to the subjects she covers on her HLN cable network show, “Nancy Grace” – HLN’s most popular show. (The show, of course, covers criminal law almost exclusively.) Ms. Grace has an interesting background. Professionally, she was a career prosecutor for almost a decade in the Atlanta-Fulton County, Georgia District Attorney’s office. She prosecuted primarily felony cases involving serial murder, serial rape, serial child molestation and arson. In sum, the most gruesome of cases. Personally, Ms. Grace was the victim of violent crime herself, when her fiancé was murdered many years ago. She has stated publicly that this tragedy will never leave her – understandably so.

The sum of this personal tragedy and professional experience is that Ms. Grace takes a decidedly pro-victim philosophy on her show. Because of this, a lot of defense attorneys across the United States doesn’t care for her, thinking her biased towards victims before the fact, in any case she examines. One prominent criminal defense attorney has publicly said of her, “Nancy has never met a victim she didn’t love and never met a suspect she didn’t want to tar and feather.”

I’ve been traveling out of office for a couple of weeks, and I haven’t posted anything for too long – my apologies to my loyal readers. Today, I want to send this brief message: I’ve been given a lot of good things in this life. I’ve had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less then we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: “When Wishes Are Few The Heart Is Happy.” That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of “Buy, Get, Acquire.” But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

I’m sure you read and hear of cases every day where judges hand down sentences to criminal defendants. Less frequently reported, are cases of a judge being threatened with some type of harm as the result of the sentences they mete out.

Just such a case occurred recently in Suffolk Superior Court, where a man who was previously sentenced by a West Roxbury District Court judge for an OUI offense, allegedly threatened the judge after she handed down her most recent sentence against him. Peter Hrycenko was charge with intimidation of a Massachusetts judge after he allegedly sent a threatening letter to the judge’s home on Dec. 23, 2007. Three days prior to that date, judge Coffey had sentenced Hrycenko to serve one year of a two-year jail sentence for operating after the suspension of his license for a prior OUI conviction.

At issue in this trial, was not so much the letter itself, but the intent behind the letter. The letter, which was introduced into evidence during Hrycenko’s trial that began August 11, recited the following language: “”I am as shocked writing this letter, as you may be receiving it. I’ve known of your residence for years and as upset as I have been towards you, I have never retaliated against you or your property because it is not who I am. Please take the time to read this as I want you to fully understand the toll your harsh sentences have taken on me and my family.” The letter goes on to complain about the sentence Coffey imposed on him in 2007 as well as a previous occasion in 2000. Hrycenko also describes a knifepoint attack “behind your court” and mentions an earlier conviction for rape. According to court documents, Hrycenko was found guilty of aggravated rape and sexual assault of a hitchhiker in 1988.