The Kickham Comment - Boston Criminal Attorney Blog

If you’ve never been arrested, chances are you don’t fully understand what a plea bargain is and when and if one might be used to your advantage after being arrested. Understanding strategic issues like this will assist in your defense by any Norfolk County criminal defense lawyer that you may hire.

In essence, a plea bargain, which is formally called a “Tender of Plea” or informally a plea agreement, is an agreement in a Massachusetts criminal case between the defendant’s attorney and the particular District Attorney’s Office that is prosecuting the case. Under such an agreement, the defendant agrees to either plead guilty to, or to not contest a specific criminal count(s) in exchange for some type of concession from the prosecutor. What this typically means is that the defendant typically pleads guilty or “Admits To Sufficient Facts” to a less serious crime(s) than the one(s) he was originally charged with. An “Admission To Sufficient Facts” is also called a plea entry of “Continued Without A Finding,” or “CWOF.” When a CWOF is agreed to, it means that the defendant essentially admits that the District Attorney’s Office has sufficient evidence against the defendant that, if the case were to go to trial, the prosecution would be able to prove the charges against the defendant.

When a criminal defense attorney advises a client to enter such a plea agreement, it is almost certainly done because the attorney does not feel that a trial is likely to result in a finding of not guilty by either a jury or judge. These plea agreements are employed when the prosecution’s evidence against the defendant is so strong that a trial on the merits is not legally advisable. In such instances, the defendant can receive a strategic benefit: In exchange for his plea bargain, the defendant receives either a reduction in the charges against him, a recommendation from the prosecutor for a more lenient sentence, or dismissal of additional charges that were originally brought against the defendant. For example, a criminal defendant who is charged with a felony that carries a state prison sentence upon conviction – for example, Grand Theft Larceny in Massachusetts – might be offered the chance to plead guilty to a less serious misdemeanor theft charge instead. The upside here? The misdemeanor conviction may not require a jail term.

In my previous two posts on this very important subject, I wrote of why this critical ballot question in Massachusetts should pass. In the first of these posts, I explained why I chose to write of this subject in this blog devoted to Massachusetts criminal law (as opposed to civil law,) and the reason was this: Because to deny terminally ill, suffering patients the right to direct the manner, means and timing of their own death, when they are terminally ill and suffering, should be a crime. In my opinion as both a Massachusetts defense attorney and as an individual citizen, the denial of this human right is truly unconscionable. Legally, it isn’t a crime. But morally, it should be.

My final post on this subject will be devoted to how opponents of this most modest and reasonable of proposals spin this issue, to create a maximum of fear and a minimum of truth in their quest to defeat this compassionate and reasonable public policy measure. In the interests of full disclosure, I should say here that I’m in a unique position to know how to design and execute political issues campaigns, as prior to practicing law I used to work full-time professionally as a lobbyist and Public Affairs Director for a statewide bar association. The opposition’s campaign strategy here rests largely on hijacking two largely ubiquitous human traits in most all people: Religion and fear. Exactly how do they hope to defeat your and my rights to direct the end of our lives if necessary? Take a look, as follows:

Strategy #1: Diction and language are critical. Keep repeating – as many times as literally possible (in print) or orally possible (if radio or TV) – the words “SUICIDE” and “KILL.” As in, “This measure would legalize assisted suicide and allow people to kill themselves.” This is designed to more than just subliminally infect the listener or reader with the most negative of emotions and visualizations: That a healthy and vibrant – but mentally unbalanced person – is “committing suicide,” and wishes to “kill himself.” These terms, repeated nonstop, fill the reader or listener with the typically negative, depressing and disapproving emotions normally associated with suicide. This is understandable, when a person is physically healthy but mentally ill, but those factors are completely inapplicable and irrelevant to this ballot question, which deals with people who are terminally ill, suffering, and who have been attested to by separate physicians as possessing the mental and emotional capacity to make this decision. But these facts don’t matter to the opponents of this measure. In every debate, in every forum, at every chance, they repeat the words “suicide” and “kill.” As a result, the undecided – and more importantly uninformed – voter is subconsciously filled with negative and disapproving emotions. Worse, he or she may not even consciously understand why these emotions have surfaced, since this psychological tactic exerts its force and influence largely on the sub-conscious or pre-conscious level. Note that the far more truthful, accurate terms of “assisted dying” and “death with dignity” — are intentionally, strategically never used.

In my previous post on this subject, I discussed the current ballot initiative that Massachusetts voters will have the opportunity to vote on in November. Specifically, I wrote of what opponents of this measure have had to say in “justifying” their opposition to a measure that I and many others feel no rational person could honestly object to. When will these pious “moralists” wake up and realize that this measure, like legal measures in Washington state and Oregon, would simply give terminal patients the right – if THEY elect to and NO ONE ELSE – to ask physicians for medication to bring about a peaceful death if THEY find that THEIR suffering – whether mental or physical – is unbearable and cannot be relieved. As Marcia Angell, Senior Lecturer at Harvard Medical School, has said: This option is not a choice of death over life, but of the timing and manner of an already inevitable death.

Personally, I don’t think this measure goes anywhere near far enough in terms of expanding the class of patients who would receive the right to request such medication from a physician: The proposal only gives this right to patients who have been certified by multiple physicians as having no more than six months to live. While I certainly support that approach very much, what of the patient who has been diagnosed with a terminal illness and is suffering mentally or physically as a result of that disease – but will not likely die for years due to the particular nature of the disease involved? Two obvious examples: Lou Gehrig’s Disease (otherwise known as ALS,) and Alzheimer’s Disease. These are diseases that slowly and horribly rob the patient of his or her dignity and purpose in living, but don’t produce actual death for perhaps many years after diagnosis. Lou Gehrig’s Disease slowly destroys the body’s muscles from the extremities, inward: It starts from the fingers and toes, until it reaches the heart and lungs. Victims can expect to be slowly robbed of their ability to enjoy life, until they are completely and totally incapacitated, diapered and catherized, unable to move at all. In almost all cases, victims can expect to be suffocated to death, as their lung and chest muscles will no longer be able to expand and contract to take in air.

The duration of this process until actual death takes place? Usually several years – perhaps as many as five to seven or more. If such a patient wants to endure this experience until the very end, that is his or her absolute right. But what is such a patient to do if he or she receives such a death sentence and decides that they don’t wish to die in this prolonged, horrible way? What if such a patient were a portrait artist or concert piano player, and decided that after he loses the use of his arms, he does not wish to go on? Or a lifelong marathoner who decided that after he lost the use of his legs, he did not wish to endure the further suffering to follow? Under this proposal, these patients would have no options until the point arrives where multiple physicians are willing to state that they have no more than six months to live. That could involve years of mental and physical suffering.

As my readers know, this blog is normally reserved for strictly legal issues of criminal law – case decisions, primers on certain areas of Massachusetts criminal law, and backgrounders on criminal trial procedure.

Today I want to talk about a different crime of crime -a crime that’s not on the books in this state, yet goes on every day across not only the Commonwealth of Massachusetts, but indeed most of this nation. A crime that is both cruel and stunning, when one spends more than a minute thinking about it. That crime is the present legal inability of a terminally ill patient to choose a dignified and painless death, instead of a prolonged and dignity-robbing end to his or her life. Specifically, I’m talking about the ballot proposal that Massachusetts voters (that is, the voters who actually choose to spend fifteen minutes to go to their local polling place and actually vote,) will be offered this November. The ballot is Question Two, and is entitled “Massachusetts Death With Dignity Act.” This important ballot question, if passed by voters, would allow a physician who is licensed in Massachusetts to prescribe medication, at the request of a terminally ill patient who meets certain enumerated conditions, to end that person’s life.

As a Massachusetts criminal defense attorney, who sees the most hardened of criminal convicts treated with more dignity than this, I simply cannot believe that any compassionate, rational person would oppose this measure. It does nothing more than allow a terminally ill patient – if he or she wishes – to hasten an already inevitable, unavoidable, probably painful and undignified death. This is not suicide nor is it euthanasia, where someone else makes the decision and takes the steps necessary to end the patient’s life. Under this ballot proposal, which is modeled after similar laws approved by voters in three other states including Washington state and Oregon, a terminally ill patient will have the option of choosing a painless and dignified death if the PATIENT HIMSELF decides that his or her quality of life has become too degraded and/or too painful to continue on, when death is inevitable. NO ONE ELSE OTHER THAN THE PATIENT IS PERMITTED TO MAKE THAT DECISION under this ballot initiative.

Recently, an especially loathsome event occurred, all under the color of law, which should upset decent people everywhere.

A backstory is needed here, so let’s get into it. I’ll be as matter-of-fact as I can, though the details will terrify and sicken the hardest of people reading this. Fifteen years ago, a young boy by the name of Jeffrey Curley – ten years old – was lured into a car by two men, who promised the boy money and a new bicycle if he got into the car with them. Just a second – a correction: I termed the two people who did this “men,” and that was a big mistake. They were two large maggots posing as human beings. Their names: Charles Jaynes and Salvatore Sicari. Once they got Jeffrey Curley into the car, they tried to sexually molest him. When he resisted, these two maggots stuffed a gasoline-soaked rag down the boy’s throat, suffocating him. Think about what it would be like to die like that. You would not only suffocate, your throat and lungs would be seared by gasoline fumes in the process.

If you thought that the difficult part of this story is over, you’d be wrong. I would advise the squeamish and the sensitive to stop reading at this point. Click to another post, to another subject.

It’s a three-syllable word. And anyone who has ever been arrested, understandably finds it a scary word: Arraignment.

As a Norfolk County criminal defense lawyer, let me take you through the typical arraignment process, and hopefully make this a little more understandable. This post deals with the arraignment process in Massachusetts state courts, not in federal court.

An arraignment is the formal process by which a criminal defendant is charged with a crime (or crimes.) It is what officially commences the Commonwealth’s case against the defendant, and it is when he or she enters a formal plea on the record. In most cases, (99.9% of the time,) the defendant will plead “not guilty.” The arraignment, of course, takes place in court. A defendant can be arraigned in either District Court or Superior Court. Most arraignments take place in the District Court, but felony charges can be transferred over to the Superior Court through the process of indictment (separate post on indictments, later.) Generally, criminal offenses are classified as either a misdemeanor, or a felony. A misdemeanor offense is any crime that can be punished, following conviction, by a maximum sentence in a County House of Correction (county jail) of 2 1/2 years. Felony offenses are more serious, and they consist of all crimes which, following a conviction, can be punished by incarceration in state prison for a term of anywhere from 2 1/2 years to life. Superior Court arraignments are almost always reserve for indictments of felony offenses.