William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
Justia Badge
Massachusetts Bar Association Badge
Massachusetts Academy of Trial Attorneys Badge
The National Trial Lawyers Badge
American Institute of Personal Injury Attorney Badge
Super Lawyers
Avvo Raiting 10.0 - Top attorney

|

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.

Continue reading

|

From a total of over 80 potential jurors, sixteen have advanced to the final round of jury selection, as of Friday, April 29 2011, in the corruption trial of former Massachusetts House Speaker Salvatore F. DiMasi.

The sixteen, however, isn’t enough. U.S. District Court Judge Mark Wolf must select an additional 20 jurors before the pool is finally narrowed down to the 16 people who will actually hear the case. 12 of those 16 will act as primary jurors, and 4 will serve as alternates in the event that one or more jurors are excused or dismissed for some unforeseen reason. Wolf has met personally with 37 members of the jury pool, to discuss their responses to 43 separate written questions that have been posed to each of them. The questions are designed to screen out biases, possible prejudices and/or pre-conceived opinions about the defendants or the case. Jurors were asked their opinions about lobbyists, accountants, Gov. Deval Patrick and other elected officials, who may be called as witnesses. Among the jurors who were dismissed was a woman who said she held a “jaded opinion” of elected officials, and a man who disobeyed the judge’s instructions not to research the case online, as well as another man who was overheard by a potential juror as saying “all politicians are guilty of something.”

DiMasi, accountant Richard Vitale and lobbyist Richard McDonough are accused of political corruption charges in allegedly steering two state contracts worth $17.5 million to the Burlington software company Cognos, in return for hundreds of thousands of dollars in hidden payments. DiMasi is accused of collecting $65,000 in kickbacks. Vitale allegedly received $600,000, and authorities said McDonough got $300,000. As a Boston criminal defense lawyer, I have to say I’m quite surprised at DiMasi’s apparent refusal to this point, to accept a possible plea agreement with the U.S. Attorney for Massachusetts. Note: I emphasize “apparent” refusal, as I don’t know whether prosecutors have, in fact, offered any plea deal to DiMasi – but it’s not at all uncommon that such possibilities would be pursued between prosecutors and defense counsel, prior to trial. I would find it odd if I learned that prosecutors never proffered any kind of a plea deal in this case, at all. Also, I don’t know whether DiMasi’s attorney has advised his client to consider any plea if one was actually offered, or not. And most important, if DiMasi’s lawyer had recommended such an option, DiMasi is the one who would make the final call on that, as the client is the person who makes these final decisions, not the attorney. Hence, as this case appears headed for trial as of this writing, I have to assume one of three things: 1) The U.S. Attorney did not offer any kind of plea deal; 2) They did proffer such a deal, but DiMasi’s attorney advised his client against the deal and DiMasi agreed with his attorney’s advice; or 3) Prosecutors offered a deal, DiMasi’s attorney recommended he take it, and DiMasi refused his attorney’s advice. There aren’t many other answers to explain why DiMasi is barreling toward a jury trial here.

Continue reading

|

Two recent Massachusetts Appeals Court rulings have caused yet more confusion over probable cause standards that police must meet to be granted valid search warrants of a person’s home for illegal drugs. One recent case seemed to lower the bar somewhat for police seeking warrants to search a person’s home for illegal drugs, while another case seemed to suggest police must meet a higher standard before being granted a warrant. The rulings come in the wake of two very important decisions issued by the Massachusetts Supreme Judicial Court in 2009 regarding Massachusetts drug prosecutions, as those SJC decisions appeared to set the current probable cause standard for search warrants.

Those 2009 SJC decisions, Commonwealth v. Pina and Commonwealth v. Medina, seemed to establish the current probable cause test regarding warrants to search a person’s home for illegal drugs. That test, or standard, basically outlines how much evidence police must present in an application for a search warrant, before a judge can issue a valid warrant to search a person’s home for illegal drugs. Commonwealth v. Pina was the first of those two cases, Medina the second. In deciding Medina, the SJC cited its holding in Pina, which enunciated the principle that evidence establishing that a person may be guilty of illicit drug activity does not necessarily establish probable cause to search that person’s home for illegal drugs.  Clarifying this, the SJC stated that “the fact that a defendant drives from his home to the location of a drug transaction, and returns to his home on the transaction’s conclusion, with no other facts connecting the residence to drug sales, does not provide probable cause to search the residence.”  Commonwealth v. Pina, supra at 441, 902 N.E.2d 917.

Hence, Pina and Medina seemed to establish that the current test for this type of search warrant required a nexus between the observed activities of the defendant, and probable cause that illegal drugs were being either stored in, or sold from, the defendant’s residence. Those decisions made it harder for police to receive valid warrants to search a person’s home, and harder for prosecutors to use that evidence against a drug defendant.

Continue reading

|

In my previous post, I reported on the SJC’s ruling last week, restricting police authority to order the operator or occupants of a stationery vehicle to exit the vehicle, based solely upon the odor of marijuana. In their ruling, the SJC emphasized that the public’s approval in 2008 of the ballot initiative decriminalizing personal possession of an ounce or less of marijuana, was in effect a mandate that police and prosecutors concentrate their resources and efforts on serious crime.

It is this key point regarding the voters’ clear mandate in 2008 that police and law enforcement focus on serious crime and violent offenders, which I want to address now. I have blogged previously about the foolishness and counter productiveness of our present drug laws, state and federal. When it comes to marijuana alone, billions of dollars of taxpayer money are spent each year in this country, arresting and prosecuting an activity that has been proven scientifically, time and again, not just to be nor more harmful than alcohol, but far, far less harmful. As a Boston drug offenses lawyer, I have personally witnessed the waste of enormous police, court and prosecutorial resources, “chasing “this victimless, extremely benign recreational activity. Tens of millions of dollars are wasted each year paying police to chase and arrest, and then paying District Attorneys’ offices even more to prosecute, the use of a substance that is far, far less dangerous and far, far less harmful than a single can of beer.

These points have been argued rationally and responsibly for years now, by respected organizations such as the National Organization for the Reform of Marijuana Laws, which filed a supporting brief for the defense in this case. Time and again, NORML and state affiliates such as MassCann, have said that personal use of marijuana does not deserve the attention and the expense utilizing police resources that should inarguably be spent dealing with violent and predatory crime.”

Continue reading

|

This past week saw a major decision announced by the Massachusetts Supreme Judicial Court (SJC,) on the subject of the presumption of criminal conduct being associated with the use of marijuana. The ruling, Commonwealth v. Cruz, Mass. SJC No. 10738, overturns precedent, establishes a major new benchmark in this area of law, and represents a major victory for reasonable and logic-minded thinking toward Massachusetts marijuana laws. Given the importance of this ruling, I’m going to devote two parts to this post. Part Two will be published in a couple of days.

The ruling deals specifically, and for the time being only, with police officers’ authority to order the occupants of a parked vehicle to exit the vehicle, based only on the smell of marijuana smoke. At this time, the ruling appears to apply solely to circumstances where a vehicle is stationary, not moving, but the central point of the decision is that police and prosecutors can no longer presume that a person is engaged in criminal conduct, solely because officers may detect the order of marijuana in the air or on the person of a driver or occupant. The defeat of that presumption is an extremely important legal point in the development of sound and rational marijuana policy. These policies have been advocated by respected organizations such as Law Enforcement Against Prohibition (LEAP,) and others I will discuss in Part Two of this post, for years.

Some important background of the case that produced this key ruling: In the summer of 2009, two Boston police officers were patrolling in an unmarked car in the Jamaica Plain area. The officers pulled up to a car parked beside a fire hydrant; inside the car were a driver and a passenger. The officers testified that they noticed the driver in the car light a small cigar that they claimed is commonly used to mask the odor of marijuana. Approaching the vehicle, the officers claimed they smelled a “faint odor” of marijuana, and one of the officers asked the driver if he had been smoking. The driver answered that he had smoked some pot “earlier in the day.” Importantly, neither officer saw anything illegal in the vehicle, but claimed that the driver and the passenger both seemed nervous. The officers then radioed for backup and ordered the men out of the car, based solely on “the smell of marijuana and the way they were acting.” Forced out of their car, one of the officers then asked the passenger, (a Benjamin Cruz, then 19,) whether he “had anything on his person.” At that point Cruz responded that he had “a little rock for myself,” which turned out to be 4 grams of crack cocaine. Cruz was arrested.

Continue reading

|

The trial of Kristen LaBrie was brought to a close earlier this week, with an Essex County jury finding her guilty on each of the four counts that she was charged with: 1) Attempted murder; 2) Assault and battery on a disabled person with injury; 3) assault and battery on a child with substantial injury, and 4) Reckless endangerment of a child, for withholding medication from her son, Jeremy Fraser.

Essex County District Attorney Jonathan Blodgett’s office argued that Jeremy could have survived a treatable case of non-Hodgkin’s lymphoma that he had been diagnosed with in October 2006 when he was 7 years old, but that LaBrie failed to administer chemotherapy treatments. Prosecutors alleged that LaBrie intentionally withheld the medications because she did not wish to care for her son who suffered from autism; in effect, that she attempted to cause his death. By the time his doctors realized the boy was not taking his medication, his condition had advanced to leukemia, and became untreatable. He died at age 9. Prosecutors argued that LaBrie’s failure to administer the prescribed chemotherapy medications was a substantial factor that contributed to the boy’s death, as it allowed the cancer to spread even though it had previously been sent into remission.

LaBrie’s defense had argued that she honestly believed that the medications her son was prescribed were making him more ill than the disease itself, and that she couldn’t bear to see him made so sick by those medications. Her lawyer argued that she suffered from mental exhaustion, and that she made what she believed were the best decisions that she could make, to care for her son. Prior to Jeremy’s death, state child welfare officials removed the boy from his mother’s care, and custody was awarded to the boy’s father, now deceased. However, at that point the boy’s cancer was no longer treatable. The prosecution introduced evidence that after her son’s death, LaBrie acted in a manner inconsistent with a grieving mother; that in fact, she appeared happy and even celebratory.

Continue reading

|

Courts – especially appellate courts – usually exist to apply the law, not advocate for specific changes in the law. Advocacy of that nature is typically the responsibility and territory of legislators, lobbyists and activists.

So it was with not a small amount of notice in the legal community in Massachusetts, that two Justices of the Supreme Judicial Court (SJC,) yesterday took the unusual step of advocating that the Massachusetts Legislature enact a change in a crime-fighting law that has existed since the late 1960’s. Enacted in 1968, this law is a wiretap law, which allows police and law enforcement investigators to use wiretaps only when the targets of the investigation are engaged in organized crime. In the case that was before the court for review, a man was recorded on tape admitting to a 2007 drive-by killing in Brockton. Prosecutors attempted to use the tape against the defendant at his Superior Court trial, but the tape recording was excluded from evidence by the trial judge, who ruled that the defendant’s activities did not fall under the definition of “being in connection with organized crime.” The Commonwealth appealed her ruling, and the SJC agreed to hear the case.

In a 7-0 ruling, The SJC stated that the language of the existing statute makes clear the specific type of criminals that police officials are allowed to surreptitiously tape record: Individuals in “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” In the Tavares case, the court found that while this murder suspect (Tavares) and two other suspect under investigation by State Police were part of a “putative street gang,” Tavares did not qualify as being an “organized crime” figure. They concluded this because prosecutors did not introduce evidence that Tavares was part of what Massachusetts law describes as a “pecuniary enterprise, such as drug, gun, or contraband trafficking, or promoted some other unifying criminal purpose.”

Continue reading

|

An arrest at Logan Airport earlier this week, alleging a Massachusetts drug offense, highlights an increasing problem in our nation’s increasingly ineffective “War on Drugs.”

The arrest and charges involve a drug mule. A “mule” is a drug courier, who more often than not is not suspected of being a drug dealer, or being a significant player in drug trafficking operations. Notwithstanding, the “mule” is the person who is charged with the crime of introducing the drug into Massachusetts. The mule in this case is one Karen Morla-Ramos, 22, a Dominican native who was arrested at Logan last Sunday, March 27 2011, after arriving on a JetBlue flight from Santo Domingo. State Police said they conducted a pat-down of Morla-Ramos after she acted suspiciously and found 1,040 grams of cocaine in a diaper-like garment she was carrying. It is often the case – though not always – that such “mules” have been forced, or at least pressured, by dealers in their home countries who are the kingpins and major players in the drug trade, to act as mules. Violence reigns in the drug trade. Very often, major drug dealers and traffickers in countries that are known to export illegal drugs, threaten or extort citizens of that country who are (quite literally) dirt poor and have no resources, to transport these drugs into the U.S., or face unthinkable results.

It’s not uncommon for a major drug trafficker to “loan” money to a poor family in a Third-World country, then come calling for repayment with huge interest suddenly attached to the loan. When the debtor can’t pay, they’re given a choice: Satisfy the debt by transporting drugs into the U.S. – where the major money is made – or face horrible consequences: The kidnapping or murder of their loved ones, or their own death. In circumstances less physically violent, but just as economically violent, poverty-wracked residents of Third-World countries such as the Dominican Republic, are offered what is billed by a major drug trafficker as “easy money”, to transport drugs aboard a flight to the U.S. While they know this is an illegal act, most of these “mules” are ignorant, uneducated, inexperienced, and uninformed about just how severe the risk is to them. Those realities don’t excuse the acts of these couriers, but it should, in fairness, provide some context.

Continue reading

|

When it comes to drug policy and criminal law, some states in this country move faster, and more intelligently, than others. Two of those more rational states right now happen to be our New England neighbors, Connecticut and Rhode Island.

I’ve blogged previously about how wasteful and counterproductive state and federal laws are that criminalize the possession and use of small amounts of marijuana for personal use. Individually, states that criminalize the possession or use of less than one ounce of marijuana spend tens of millions of taxpayer dollars arresting and prosecuting an act that is so benign it is actually laughable. Collectively, on a national scale, the states spend hundreds of millions of dollars each year chasing a substance that is medically and scientifically benign. Across the United States, tens of thousands of local and state police spend untold numbers of man-hours and taxpayer dollars “investigating”, arresting and prosecuting people who are no more harmful than their next door neighbor (and who in reality probably are their next door neighbors.) Indeed, on the “harmfulness” scale, pot is exponentially far less harmful than drinking alcohol – yet for persons over 21, drinking is entirely legal. The most irrational, fervent opponent of marijuana decriminalization has yet to explain this glaring contradiction.

This legal schizophrenia is not only ridiculous; it’s unjustified on any level: Medical, legal, financial. As a Dedham, Massachusetts drug offenses lawyer, I can assure you, this is a complete and total waste of taxpayer dollars, law enforcement and prosecutorial resources. Yet, slowly, there is hope that the legal and legislative climate on drug laws is changing. Massachusetts drug laws changed dramatically in the area of pot decriminalization two years ago, but only in response to a state voter referendum – not a legislative act signed by a governor.

Continue reading

|

It would seem that almost anyone could agree on the need to criminalize and punish Massachusetts sex offenders who deliberately send obscene messages electronically to minors, wouldn’t it? Well, make that “anyone could agree on the need” to accomplish these goals – but hardly the method.

This reality has been on full display in the recent past, as the legal and legislative system in Massachusetts twist and turns its way to consensus and legal enforceability of measures to accomplish this goal. Exhibit A in that effort has been the case of Commonwealth v. Zubiel, 921 N.E.2d 78 (Mass. 2010.) This defendant was convicted in Massachusetts Superior Court of electronically sending sexually graphic instant messages to a recipient that had identified herself via the instant messages as a 13 year-old girl named “Melissa QT 1995”. Unbeknownst to Zubiel, “Melissa QT 1995” was an undercover state police officer. Zubiel texted “Melissa” that he was 25 years old, and the two agreed on a time and place where they would meet. Zubiel asked “Melissa” for nude photographs, questioned her about her sexual experience, and finally set up an in-person meeting with her. Zubiel was apprehended and arrested as he was walking toward an apartment building address which the undercover officer said “Melissa” lived at. The Commonwealth won convictions on four charges of attempting to disseminate matter harmful to minors under Massachusetts General Laws C. 272, § 28. Zubiel appealed those convictions, and the Supreme Judicial Court (SJC) reviewed the case on its own motion.

In a decision that enraged a lot of people, on Feb. 5, 2010, the SJC overturned Zubiel’s conviction. The justices agreed with Zubiel’s argument that “harmful material” banned under M.G.L. C. 272, § 28, the law in effect at the time, didn’t include instant messages or other forms of electronic communication. The reasoning: C. 272, § 28 provides: “Whoever disseminates to a minor any matter harmful to minors, as defined in section thirty-one, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be punished. . . .” “Matter” is defined in G.L. C. 272, § 31, for purposes of § 28, as “any handwritten or printed material, visual representation, live performance or sound recording including but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances.” The court ruled that instant messaging and online conversations do not specifically fall under the definition of “matter” under § 31.

Continue reading
Contact Information
Westwood
119 Fisher Street Suite 1
Westwood, MA 02090
Phone: 781-320-0062Mobile: 617-285-3600 Fax: 1-617-977-5800 [Must include "1" when sending faxes]

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, William D. Kickham
JUSTIA Law Firm Blog Design