Think that women are more frequently the victims of sexual assault?
As a Dedham Massachusetts sexual offense lawyer, I can tell you – it’s not the case.
According to a new report published in U.S. News and World Report’s HealthDay News, men with disabilities are four times more likely to be sexually assaulted than nondisabled men. This study was conducted by investigators at the University of Massachusetts Medical School and the Massachusetts Department of Public Health.
Having connections into the White House won’t necessarily spare someone from spending time in the Big House.
President Barack Obama’s uncle was brought before Framingham District Court earlier this week, where he appeared for a pre-trial conference hearing, after being arrested on August 24 on a charge of Massachusetts DUI/OUI, as well as other charges. At the time of his arrest, authorities learned that Onyango Obama, 67, who is the half-brother of President Obama’s late father, was also in violation of an almost 20 year-old immigration order to return to his native Kenya (apparently, he has been living in Framingham for quite some time.) As a result of that violation, Obama was taken into custody by U.S. Immigration and Customs Enforcement (ICE) authorities, but was released on September 9 by ICE officials without public comment. At the time, an ICE spokesman would only say that federal privacy laws prohibit agency officials from commenting on individual cases. True. I’ll leave that alone.
At Obama’s court hearing earlier this week, his lawyer and prosecutors for the Middlesex County District Attorney’s office agree to continue the case until November 17 2011. This is not uncommon for many criminal charges, including OUI/DUI. At his earlier arraignment, Obama had pleaded not guilty to the formal Massachusetts charge of operating under the influence of alcohol. At the time of his arrest, it was reported that Obama told police, “I think I will call the White House” in order to arrange bail. Not a bad decision.
On February 6 2010, I posted a story about the arrest of a man on the Boston Common, after he had taken video of Boston police allegedly engaging in unnecessary use of force in arresting a man.
Simon Glick was walking along Tremont Street in Boston on October 1 2007, when he observed three uniformed Boston police officers using considerable force in arresting another man. Glick, now a practicing criminal defense attorney, was a law student at the time and suspected police brutality. His suspicions were reinforced upon hearing another observer shout “You are hurting him, stop!” at the officers. Glick video recorded the event with his cell phone. When the officers saw this they arrested him – for violating, they alleged, the Massachusetts wiretap law – Mass. Gen. Laws Ch. 272, § 99. The “wiretapping statute” criminalizes the “interception of wire and oral communications” and defines “interception” as the secret recording of the contents of a communication, without the permission of all parties to the communication (emphasis added.)
Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or an otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legally permissible. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held. To almost no surprise among Massachusetts criminal defense lawyers, the criminal prosecution against Glick was later dismissed, particularly due to the fact that there was no “secret” recording of this event.
One of the things that make the practice of law interesting is that fine details always make the difference in given rulings.
Such was the case earlier this week when the Massachusetts Supreme Judicial Court (SJC,) ruled against state prosecutors’ attempts to civilly commit a man that has openly acknowledged that he is a serial flasher. Some quick legal background: Like many states, Massachusetts has a legal mechanism to keep people in jail who have been convicted of sex offenses, even after they’ve served their sentences, if it considers those people to be sexually dangerous. This mechanism is known as the Civil Commitment Statute, Massachusetts General Laws Chapter 123, Sec 1. 8. et. seq. In almost all cases, this statute allows prosecutors to bring a petition before a court when a convict is about to complete his or her sentence for a Massachusetts sex offense, and argue that the person should be civilly committed at the completion of his or her sentence, because that person remains a sexually dangerous person and poses a continuing threat of harm to others. Basically, when prosecutors file such a petition, they’re saying “Yes, this person served his sentence, but he’s still sexually dangerous, and shouldn’t be allowed on the streets. He should be incarcerated.” When a person is “civilly committed,” he or she is ordered held against their will at Bridgewater State Hospital, which is essentially a state mental hospital. Convicts that have been judicially declared to be criminally insane, and sexually dangerous persons, are held there. It is essentially a hybrid between a hospital and a prison, complete with armed guards and barbed wire.
The minimum requirement that prosecutors must meet to civilly commit a person, is a showing that the person poses a threat of physical harm to himself or others – and that’s what makes this case interesting: It poses the question: Is a flasher someone who poses a threat of physical harm to others? As I said, an interesting question. A voyeur is someone who likes to watch others sexually. A flasher is someone who wants to be watched sexually. While both actions are almost certainly offensive, do they pose the threat of physical harm? In this ruling – which the court went to great length to isolate as applying to this case and this case only – the answer was no, and the state’s efforts to civilly commit the man were rejected. The defendant in this case, named Donald Suave, has been convicted of the Massachusetts sex crime of “open and gross lewdness” seven times, almost always flashing young adult women, sometimes even masturbating in the process. He openly acknowledged to psychiatrists that he has done this as many as 30 times since he was a very young teenager.
As I write this post tonight, I’m thinking about shame and loss.
I’m writing about former Massachusetts House Speaker Sal DiMasi’s sentencing today in federal court in Boston. About four days ago earlier this week, I communicated with several Boston media reporters, opining my professional opinion, as a Boston Massachusetts criminal defense attorney, of how many years that DiMasi would be sentenced to. My prediction as of September 5? Eight years. The sentence handed down today by U.S. Judge Mark Wolf? Eight years.
While I felt all along that my instincts were accurate, I was saddened that I had to make them at all. I was saddened that DiMasi brought himself to this position. It was a shame that someone who has by many, many accounts done a great deal of good over thirty years of public service, would come to this kind of an end. It was a shame that a member of the bar, an esteemed criminal defense attorney, had been brought to such disgrace. And it was a shame that the public’s trust in elected officials has been brought ever lower. As to loss, the legislature lost a talented member and leader; Mr. DiMasi has lost his name, his freedom for several years, and his lifetime state pension of approximately $60,000 per year. He is financially broke, in debt, and (to quote his own words at his sentencing hearing,) “virtually unemployable.” And perhaps worst of all, his family, especially his wife Debbie who is battling breast cancer, has lost him, for a long time.
A 31 year-old Hingham Massachusetts woman was arrested by Braintree police last Tuesday and charged with possession of heroin and conspiracy to distribute a controlled substance. In addition to the woman, two men who allegedly sold the woman the heroin were also were arrested and charged with possession and conspiracy to distribute. Braintree police had received a tip about the alleged transaction, and had staked out the street, Logan Drive, where they reported observing the alleged Massachusetts drug offense.
Allegedly, the woman exited her car, conversed briefly with the two men, then got back in her own vehicle. Afterward, the two cars drove away in separate directions. Police intercepted both vehicles, and questioned the suspects. Two bags of what reportedly appeared to be heroin were allegedly discovered on the woman’s person, inside a cigarette pack. After being questioned by police, the woman reportedly stated that the two men who she spoke with on Logan Drive, had provided her the heroin. Noel Vazquez, 29, of Jamaica Plain and Orlando F. Negron, 31, of Dorchester were arrested and charged with distribution of heroin and conspiracy to violate the Massachusetts Controlled Substances Act. Additionally, Negron, who drove the vehicle, was also charged with operating with a suspended driver’s license, possession of a Massachusetts and Pennsylvania driver’s license with a false name. Aside from the more serious drug offenses involved hee, these Massachusetts motor vehicle violations also carry serious penalties. Negron was also charged with providing a false name to a police officer following arrest, and he has an outstanding warrant for drug and traffic offenses in Weymouth. $1,127 in cash was seized from the two men. The Hingham woman’s name was not yet available at the time of this writing.
I can assure my readers that Massachusetts drug offenses, from the petty and minor to the most serious, are charged in the courts throughout Massachusetts, every day. As a Dedham, Massachusetts drug offenses lawyer, I see it all the time. But what makes arrests like this stand out a little more is the fact that the defendant who is accused of buying the heroin, is from a very upscale, wealthy community. Most of the time when people hear of serious drug offenses involving substances such as heroin, they think of inner-city urban crime, often found in the gritty streets of crime-infested communities. I could name you such communities in Massachusetts, but I won’t. What I can tell you, though, is that the problem of serious drug use on the scale of heroin and cocaine, does indeed occur in wealthy suburbs, too – and reports like this illustrate that unfortunate point.
A few years ago, the Massachusetts Legislature passed a law prohibiting defendants convicted of certain Massachusetts sex offenses from being placed as residents in nursing homes. Ostensibly, the law applied only to Level 3 sex offenders, which are considered the most likely to reoffend, according to the Massachusetts Sex Offender Registry Board (“SORB.”) The goal, obviously, was to protect a vulnerable population from convicted sex offenders.
On its face, it sounds like good public policy. But, as is usually the case, something happened on the way to an otherwise good idea. In this case, that something was a Superior Court judge’s ruling that a man (known only as “John Doe” in court pleadings,) who had been previously convicted of a sex offense and classified by SORB as a Level 3 offender, was no longer a sexually dangerous person. Subsequent to that ruling, “Doe” needed to be admitted to a nursing home. After Boston Police learned that this man had been placed into a certain nursing home, they told him he had to leave the facility, which he did. “Doe’s” lawyer later claimed in court that the law was unconstitutional because it was overreaching, and because it provided no opportunity for Doe to prove that he was no longer a risk to other residents and staff in the facility.
In a unanimous (7-0) ruling, the Supreme Judicial Court (SJC) agreed, holding that the law prohibiting Level 3 sex offenders from placement in Massachusetts nursing homes violates the state’s Declaration of Rights, in that it turns a person’s right to choose where to live, into in effect a crime. The opinion was written by Associate Justice Fernande R.V. Duffly, one of the newest additions to the court under Gov. Deval Patrick. She wrote, “Those who have been released from incarceration … are free to live where they choose and to move freely within and without the Commonwealth.” A restriction on the right to choose where one lives is a further imposition on the liberty interests protected by our state constitution.”
A lot of people ask me why it’s so crucially important that all criminal defendants be presumed innocent until proven guilty, especially when the evidence against the defendant at the time of the arrest and trial and trial seems so convincing. Usually, I answer that question with “What if you were the person accused? Would you think it right that you be presumed guilty?”
While this kind of hypothetical question usually silences the skeptic, it is real-life stories of people wrongfully convicted of crimes that they did not commit, which always brings home the point best. Exhibit “A” on this subject today is Anthony Powell, a man who spent 12 years of his life in prison for a Massachusetts rape that he did not commit. Powell was arrested in 1991 and charged with raping an 18 year-old woman in the Roxbury section of Boston. Based largely on the testimony of the victim, who identified Powell in court as her assailant, Powell was convicted and sentenced to twenty years in state prison. After serving 12 years for a crime he did not commit, Powell was released in 2004 after DNA evidence established that he could not have been the rapist. During those 12 years in prison, Powell never wavered in his claims that he was innocent, though who’s going to believe a convicted rapist, right?
Well, ironically enough, it was the prosecutor’s office that convicted Powell, the Suffolk County District Attorney’s Office, who eventually listened. In the 2-3 months after the March 1991 rape that Powell had been arrested and convicted on, two additional rapes and sexual assaults had occurred in nearby neighborhoods in Boston, but the assailant in those cases was never found. Years later, a man by the name of Jerry Dixon was convicted of several Massachusetts motor vehicle offenses, and was sentenced to nine months in jail for those offenses. Prior to Dixon’s release, corrections officials learned that he was required to retroactively submit a DNA sample stemming from of an unrelated armed robbery offense which also occurred in 1991. (Interestingly, the current Suffolk County District Attorney, Daniel F. Conley, prosecuted that case against Dixon in 1991, when Conley was still an Assistant District Attorney.) Dixon’s DNA sample was entered into the FBI’s Combined DNA Index System, or CODIS, and his DNA profile matched the DNA profiles that had been stored from the two 1991 unsolved rape cases that had followed the rape that Powell was convicted for.
The Massachusetts Legislature has enacted a number of laws relating to sexual abuse and sexual molestation against underage victims. There are several Massachusetts rape and sexual assault laws, but exactly what does “statutory rape” mean? Most people think they know the correct answer (“Sex with an underage girl”), while the truth is, most people are wrong about that. They’re wrong, because most people don’t know what: A) The word “sex” means legally; B) What “underage” means in Massachusetts; and C) The fact that an alleged victim is not limited to being a girl.
First, though, most people don’t know what “statutory” means. It refers to the fact that the prohibited act is defined by the Legislature, not the courts. Laws can come from a variety of different sources, including the courts. These types of laws are called “decisional law” or common law. “Statutory” means that the law came from an act of the Legislature, who defined what “rape” in this instance is. The relevant statute in Massachusetts is M.G.L. Ch. 265, Sec. 23-23B, which defines statutory rape as follows:
“Whoever unlawfully has sexual intercourse or unnatural sexual intercourse, and abuses a child under 16 years of age, shall be punished by imprisonment in the state prison for life or for any term of years or, except as otherwise provided, for any term in a jail or house of correction. A prosecution commenced under this section shall neither be continued without a finding nor placed on file.”
The U.S. Department of Homeland Security (DHS,) in its understandable efforts to rid our cities and communities of immigrants who have committed violent crimes, has developed an interactive cross-referencing program with local police and law enforcement departments, known as the Secure Communities Program. The program is administered and enforced by a division of DHS, which is U.S. Immigration and Customs Enforcement (ICE.) This collaborative effort with local police departments requires that fingerprints obtained from arrests made by local police be automatically cross-referenced with federal immigration databases at ICE. The objective is to identify immigrants with serious and violent criminal records, and use that criminal record as the basis for deporting that person. (While deportation of an immigrant following conviction of a crime is not always done, federal immigration laws do allow for deportation if an immigrant has been convicted of a crime. The Secure Communities Program builds upon that legal foundation.)
On the surface, this approach sounds like common sense. I believe we should deport immigrants who have come here promising to obey our laws, only to commit violent crimes and infect our communities with fear and all the related consequences that violent crime brings to communities. Except that as with so many government programs, good intentions and common sense often get lost in the process of bureaucratic program enforcement. Exhibit A is ICE’s Secure Communities Program: Under the present program structure, an immigrant who is arrested and has a record of any criminal convictions at all – minor or major, nonviolent or violent – is subject to immediate deportation by DHS. Translation: If an immigrant were arrested for a traffic violation, and a fingerprint check showed that he or she was previously convicted of passing a bad check, that person would be deported. This enforcement scheme contradicts and confuses the laudable objective of the Secure Communities program, which is to rid our communities of immigrants who have been convicted of violent crimes.
For this reason, a considerable number of cities and towns across the U.S. and in Massachusetts have had second thoughts about participating in the Secure Communities Program. The City of Boston has been one of those municipalities. The original idea of the DHS/ICE program is a good one, and despite calls for the program’s dismantling, the original goal should not be abandoned. Instead, the program should be re-written to develop specific legal criteria, listing precisely what types of prior offenses constitute a “violent crime.” By no means do I suggest that the list be unnecessarily short, or that the list comprise only extremely violent crimes – only that hearings be held and a consensus reached as to what crimes are to be defined within the Program as meeting the definition of “violent” crimes, and hence subjecting the person arrested to deportation by DHS & ICE. Such a list of crimes, obviously, would include Massachusetts rape, Massachusetts sexual assault, Massachusetts kidnapping, Massachusetts assault and battery and, Massachusetts gun and firearms violations and of course, Massachusetts attempted murder and murder. Further, the final list would of necessity include more violent offenses than listed immediately above.
The Kickham Comment - Boston Criminal Attorney Blog
