William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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I’ve been a trial lawyer for quite some time now. I’ve seen my share of clients who are outright innocent; guilty of a crime but legally “not guilty” due to a legal issue or procedural defect; and then those that are outright guilty. You can’t try cases from both the prosecution as well as the defense table, as I have, and not develop a keen sense of who falls into which of these categories. The skill comes with the territory.

Thus it is with this skill that I comment today on the long, strange trip of Boston city councilor Chuck Turner. The hard-to-miss Mr. Turner seems, like Diane Wilkerson, (the disgraced former state senator who pled guilty earlier this year to several federal corruption charges,) comprised of an arrogance that defies description. (Another hard-to-miss personage, you will recall Dianne Wilkerson as she belonging to the “publicly-stuffing-illegal-cash-bribes-into-her brassiere-in-a-restaurant, then-denying- it” category of arrogance. Turner was investigated by the Boston office of the FBI along with Wilkerson, as part of an undercover FBI probe into political corruption in Boston. He is now on trial in U. S. District Court in Boston, charged with extortion and counts of political corruption.

Despite videotape evidence showing a Boston businessman (Ronald Wilburn,) handing to Turner what appears to almost every reasonable observer to be a cash bribe (offered in exchange for quick approval of a city liquor license,) and despite testimony from Wilburn that he gave Turner that money as a bribe for that license, Turner has for almost two years steadfastly denied he ever took a bribe from Wilburn. To assure full disclosure, it should be noted that Wilburn was cooperating with the FBI, and was paid compensation by the FBI as part of this investigation. It should also be noted that the practice of compensating witnesses in a federal investigation is entirely legal, and has been done in several previous cases. Regardless of this arrangement being legal, as a criminal defense attorney, I don’t think it’s smart at all, as it just hands the defense a basis upon which to attack the credibility of such a witness. But that doesn’t remove the fact that Turner is on tape, and is recorded accepting cash in-hand in a tacit exchange for a liquor license.

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It’s ironic that a considerable number of drivers charged with Massachusetts DWI/OUI/Drunk Driving offenses so far this year, have hit city or state police cruisers. Just this past Monday, the commander of the Massachusetts State Police, Colonel Marian J. McGovern, was struck by an alleged drunk driver while driving her cruiser in Shrewsbury. Tragically, on June 18 of this year, State Police Sergeant Douglas Weddleton, of Brockton was struck and killed by an alleged drunk driver. The veteran state trooper, 52 years old, was struck when he was working a construction detail in Attleboro. Cases like this are awful.

Just two days ago, another such incident with a state trooper and an alleged drunk driver played out, closer to my town of Westwood. State trooper Jonathan Nickles suffered minor injuries Thursday night when an alleged drunk driver smashed into his cruiser while fleeing from Milford Massachusetts police, according to state police authorities. This was the seventh time this year that an on-duty state trooper has been struck by an alleged drunk driver. Trooper Nickles was driving to work in his marked cruiser when he noticed local police cruisers with their emergency lights on, heading in his direction. Trying to assist, he turned on his own emergency lights and positioned his cruiser on Route 109 in Medway, directly in the path of a pickup truck that was fleeing from Milford police. The driver of the truck smashed into one car, then hit Nickles’s cruiser before coming to a stop the parking lot of an adjacent bar.

Milford police immediately took the driver, Dana J. Scovil, 36, of Webster, into custody. According to a Milford Police Department report, Scovil was charged with operating under the influence (second offense), reckless operation of a motor vehicle, marked lanes violation, possession of alcohol in a car, and failure to stop. Scovil reportedly refused to take a chemical breath test and he was charged with drunken driving based on a strong odor of alcohol, and because he was unsteady on his feet and had glassy eyes – all of which would be standard operating practice for police making an arrest for OUI/DWI. Scovil also allegedly tossed a half-full can of beer out of the truck during the pursuit, according to police. Scovil pleaded not guilty in Milford District Court, where District Court Judge Robert B. Calagione set his bail at $10,000 cash for the new charges and revoked bail in an open case in Dudley District Court. Scovil’s attorney can expect that of these violations are going to be prosecuted very aggressively.

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Now a few days old, the new Massachusetts Anti-Texting Law, (St. 2010, C. 155, “Safe Driving Law”,) stands out as Exhibit Number One (among many Exhibits) of how the Massachusetts Legislature goes about attempting to “solve” what is clearly a problem in this state: Electronically distracted drivers. There is absolutely zero doubt in my mind as to the seriousness of this problem. Distracted drivers (“distracted” in this post means distracted due to use of cell phones and text devices,) are as dangerous and lethal as drunk drivers. I’ve seen more idiots behind the wheel, thinking that they can actually dial a cell phone or text and still drive safely. Note to such idiots: You’re operating two tons of steel and glass, moving at speeds that can easily kill and maim (a car moving as slow as 10MPH can easily kill someone, never mind 40, 50, and 60MPH.)

Even the shallow minds that occupy the Legislature couldn’t deny the danger presented by this lethal habit — so was their response to craft an effective, balanced measure that would make practical sense in the real world? Of course not – this is the Legislature, where, shall we say, the atom has never been split, and never will be. No, instead they passed this measure – signed into law by Governor Patrick – which actually claims to be able to legitimately outlaw texting – while keeping dialing and talking on a cell phone – the very same devices as used for texting – quite legal. I’ve seen idiocy before, but this law takes the cake. This is about the most unenforceable laws I’ve seen enacted in Massachusetts in a while.

The law – which went into effect September 30, allows police to slap drivers with $100 fines for sending or receiving text messages while behind the wheel – is patently unenforceable. (The penalties are even worse for drivers under age 18.) How in God’s name is a police officer supposed to be able to see so close up to a driver’s hand, to know whether he or she was dialing a phone call or texting a message? The very same devices – a cell phone – do the same thing. An officer may be able to see, from either the side of a road or through a cruiser window, that a driver is using a cell phone keypad, but it is nearly impossible to prove that the driver was not dialing a phone call, but texting. Importantly, a driver doesn’t have to hand over his phone to prove whether he was texting or phoning. (For that, police would need a search warrant – ridiculous to even discuss in such a situation.) So exactly what is an officer or trooper supposed to do once he or she stops a driver who is seen holding and using a cell phone? Answer: Presume the driver was texting, and hit them with a fine. A moron could dodge this law. It’s just ludicrous.

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The recent spike in murders in Boston have more than one candidate for public office, and more than one conservative talk show host, waxing on and on about how Massachusetts and other states should adopt the death penalty. Oh God, I think, not another round of this mindless debate. “Now!” the conservatives and law-and-order types cry; “Now is the time!” Like a broken record, death penalty advocates repeat that it will 1) Deter crime and 2) That even if it doesn’t deter crime, that as “the ultimate punishment, the punishment should fit the crime.”

For the one millionth time, let’s make something clear: Credible study after study, and empirical, real-world experience after real-world experience has shown: The death penalty does NOT deter violent crime. That is inarguable, and has been well settled among reasoned minds for many years. As a Boston Massachusetts murder defense attorney, I have sat and spoken with a number of murderers and violent criminals, and I can assure you: Not one of them ever stopped and thought to himself, “Wait a minute, isn’t there a death penalty in this state? On second thought, I won’t commit this crime.” Murderers kill because they have depraved hearts and minds, and no morality or human decency. Death penalty statutes have never deterred violent crimes such as murder, rape and felony-murder. It just doesn’t work that way.

Another major reason why the death penalty is inadvisable, owes to the significant possibility that it may be applied incorrectly – i.e., that an innocent person could be executed. In the event that doesn’t convince those who still doubt this reality, visit The Innocence Project, where DNA evidence has exonerated many wrongfully-convicted inmates sitting on death row. Another major, and much more practical, argument against capital punishment is the financial cost – to you and me, the taxpayers. What cost am I talking about? Most people have either not considered, will not consider, or do not believe, just how much money it costs in mandatory appeals following a death penalty sentence. Nor, very importantly, do most people understand how much time these appeals take, and where they have to wind their way through in the court system. They can cost millions of dollars in legal and administrative fees – and who pays for this? You and I do – the state and federal taxpayers. Death row inmates do not have money to pay for private lawyers to handle their appeals through the state courts, the United States (federal) District Courts, the United States Courts of Appeals, and if necessary all the way to the U.S. Supreme Court.

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In a ruling bound to enrage victim’s rights advocates and conservative legal and political commentators, the Massachusetts Supreme Judicial Court yesterday issued a decision restricting District and Superior Court judges’ ability to require that GPS monitoring bracelets be worn by convicted Massachusetts sex offenders, regardless of whether offenders have violated the conditions of their probation. While differing viewpoints can argue the constitutional validity of this decision, it is the underlying which gave rise to this ruling that is certain (understandably) to evoke a lot of visceral reaction about this ruling.

The facts of that case are unquestionably ugly and revolting, so let’s lay them out up front: One day twenty years ago, in 1990, a particularly loathsome individual by the name of Ralph Goodwin abducted and raped a 7 year-old boy. I said the details are revolting, and they are: Goodwin lured the young boy away from his parents while the family was attending an event at a Portuguese-American civic club in Lowell. He did this by enticing the boy in a game of hide-and-seek. According to prosecutors at his trial, Goodwin separated the boy from his parents and a friend and carried him outside the building, threatening to kill him if he called for help. He then took the boy to a secluded area underneath a nearby bridge and raped him. When Goodwin was done, he then took him to a house, where he sexually assaulted the boy again. Goodwin held the boy prisoner in the cellar of the house overnight, and raped him again the following morning, according to prosecutors. He then placed the injured and traumatized boy in a large cardboard box, deposited him on a street corner, and called a taxi to take the boy to his home.

Goodwin was convicted at trial, and then-Superior Court Judge Patti B. Saris, (who is now a federal judge,) sentenced Goodwin to two concurrent terms of 10 to 15 years in prison for two of the Massachusetts rape charges, and nine to 10 years concurrently for the kidnapping. She sentenced Goodwin 30 to 40 years for the third rape but suspended that sentence, but ordered that it be automatically imposed if he reoffended. Goodwin then spent the next 15 years as a guest of the Commonwealth in state prison. Prior to his scheduled release in 2005, he was civilly committed to Bridgewater State Hospital (basically the state prison for the insane and the sexually dangerous,) after a judicial determination that he was still sexually dangerous. In 2006, the Massachusetts Legislature passed a law to require that all convicted sex offenders wear GPS monitoring devices. Fast forward to June 2009, when Goodwin was released after a jury concluded he was no longer dangerous. He was given several conditions of probation at his release. However, wearing a GPS monitoring device that would allow authorities to track his movements, and staying away from schoolyards, was not among the listed conditions of probation, because he was convicted prior to enactment of the 2006 law requiring all convicted sex offenders to wear the devices. This is key here.

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A recent fatality stemming from drinking and driving underscores the dual criminal law and civil liability dangers associated with mixing alcohol and driving.

An 18 year-old youth, Max Haberman, was killed in a Sudbury Massachusetts car crash last month. He had reportedly been drinking prior to the accident at the home of a 19 year-old, a Timothy Jarrett of Sudbury. According to the Sudbury, Massachusetts Police Department, Jarrett had hosted an under-age drinking party, where Haberman was identified as being present and consuming alcohol. As a result, Jarrett was charged with violating what is known as the Massachusetts Social Host Law. This law provides for criminal penalties against someone under 21 years of age to possess alcohol on his property. Legally, this means that in addition to facing criminal charges, Jarrett and/or his parents (presumably the owners of the property where the party was held,) will be exposed to civil liability in connection with Haberman’s death. Haberman was killed when the Mercedes SUV he was driving slammed into trees in the woods off Dutton Road in Sudbury.

This is all very tragic, and it underscores the continuing message: 1) Do not drive if you have been drinking; and 2) If you serve alcohol at a social function in your home, and someone attending that function becomes intoxicated and later injures (or kills) someone when driving after the function, you can be held civilly liable for a victim’s Massachusetts personal injuries resulting from that guest’s drunk driving. Always be aware: A guest need not be “falling down drunk”, or even visibly impaired, in order to be legally drunk when leaving your function. If you wish to hold a social event at your home and intend to serve alcohol, always call an experienced Massachusetts drunk driving lawyer before you hold such an event. Important legal issues and precautions must be taken to safeguard not only the lives of persons who might be injured by and guests that leave your function legally impaired, but extremely important proactive legal measures must be taken to protect your legal and financial interests.

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Last January, the Boston Globe published a lengthy investigative piece on an apparent mortgage fraud scheme run by several individuals. The story alleged that the ring was led by one Michael David Scott, a Mansfield, Massachusetts real estate developer, who recruited several other co-conspirators to assist him in the bank fraud scheme. At the time of the Globe’s January 2010 story, no one had yet been arrested or charged.

That all changed last week when Scott was indicted by a federal grand jury on 62 counts of wire fraud, bank fraud, and money laundering in connection with this operation. Yesterday, things changed even more in this case, when the Boston U.S. Attorney’s Office charged (separately) a former Bank of America Corp. branch manager and a Virginia-based real estate recruiter with wire fraud in this unfolding federal case. The case alleges that Scott masterminded and led a long-running mortgage fraud scheme to convert at least 50 buildings (usually three-deckers) into about 170 condos in some of the city’s poorest neighborhoods. Some units sold at market prices, but almost none were made habitable. More than 100 of the properties eventually went into foreclosure. Aside from defrauding investors, almost all of those properties ended up being abandoned and blighted, resulting in even further deterioration of the communities they were located in. The case is being prosecuted in U.S. District Court in Boston (federal court,) and not Massachusetts state Superior court, due to the interstate nature of the alleged bank fraud involved. Scott is scheduled to appear before a federal judge Sept. 13, but federal court officials have not yet set an appearance date for Fowler or Samuels.

Arthur Samuels, a former manager at Bank of America’s Fields Corner branch in Dorchester, and Jerrold Fowler, of Norfolk, Virginia, were both charged yesterday in U.S. District Court in Boston with wire fraud (this charge applies because almost all of the electronic and physical transactions occurred over state lines.) Jerrold Fowler was charged for his alleged role as a recruiter for investors – many of them out of state – who participated in the alleged scheme to defraud lenders. Previously, in the indictment handed down last week against Michael David Scott, federal prosecutors said Scott worked with “associates,” but at the time the Grand Jury heard the evidence against him, those “associates” were not identified. It seems apparent now that these “associates” were, at the least, Arthur Samuels and Jerrold Fowler. Samuels’s role, inside Bank of America, allegedly involved manufacturing false documents to support the fraudulent loan applications involved. According to an FBI affidavit filed in the case, Scott, Fowler, Samuels, and others in the ring paid people to purchase condominiums, promised the buyers that they didn’t have to invest in the sale, represented that the mortgage payments would be paid for by tenants, and told buyers that they would share in the profits when the properties were eventually resold. The criminal complaint also alleged the group falsely inflated purchase prices, incorrectly said buyers would live in the homes, and falsely claimed inflated investors assets to qualify for the mortgages granted.

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The suicide early Monday morning of accused “Craigslist Killer” Phillip Markoff forever ends any possibility of hearing from this man’s own mouth, the story of what brought death to a troubled young woman making her money as a prostitute, Julissa Brisman, and what brought down the life of a promising young future doctor. Two lives, from very different worlds, are both now ended. Many people would (and in fact, presently do) argue that Markoff’s death is a further loss to young Brisman’s family, who will now be denied seeing justice done in a court of law, but that his death is no great loss to the world. Perhaps both of those observations are true.

I do not write this post to argue that Phillip Markoff’s death is a great loss to anyone other than his family. On a legal level, a strong argument can perhaps be made that his suicide evidences the ultimate demonstration of what we lawyers call “consciousness of guilt,” concerning the murder charge against him. From the evidence made public to date, it doesn’t appear – however horrific the end result was for Julissa Brisman (and it certainly was,) – that Markoff was a savage, cold-blooded killer who set out in advance to kill this woman (or anyone.) As a Boston criminal defense lawyer, trust me, I’ve seen those kinds of cases, whether involving murder, rape or other violent crimes.

Rather, in meeting with prostitutes from Craig’s List, often in upscale hotels, Markoff was carrying out an interesting con game, to feed a bad gambling habit that he played out, so to speak, at well-known gambling venues like Foxwoods Resort and Casino, as well as possibly Las Vegas. It appeared that Markoff constructed a rather creative ploy to obtain cash to feed this gambling habit. The idea was to meet prostitutes in private hotel rooms, then spring a gun on them to rob them of the considerable cash that prostitutes are known to carry. The “benefits” to this plan, from Markoff’s view? 1) No witnesses (since the robberies took place behind closed doors); 2) Since the victims were engaging in illegal activities (usually prostitution, offered under the cover of “massage services,”), the victims would never call the police or hotel security; 3) He walked away with lots of cash to feed his gambling lifestyle.

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Readers of this blog know that I’ve written previously about Massachusetts CORI reform, and that I’ve advocated a balanced approach to any reform measures, preserving the privacy rights of those convicted of certain (but not all) crimes, while preserving employers’ and other organizations’ rights to legitimate criminal history data.

I believe that goal has been realized. Yesterday, August 6, Governor Deval Patrick signed into law a reform measure that many informed observers think strikes the right balance between these two competing objectives. The bill signed yesterday was a long-awaited and hard-fought overhaul of Massachusetts’ criminal records system. Notable within the measure, is a provision that appears to make Massachusetts the first state in the nation to ban the majority of employers from asking job applicants about their criminal history on job application forms. This is key, because under the previous system, most standard job applications in Massachusetts required the applicant to answer “yes” or “no” to a question that asked if they had ever been charged or convicted of a crime in this state. If an applicant who had been convicted of a crime answered “yes,” he or she was almost always immediately eliminated from consideration for the job. Hence, the system incentivized job applicants to lie, often frustrating employers and defeating the entire purpose of the law.

Under the new statute, all employers, including licensing authorities, housing providers, and volunteer organizations will have access, for a fee, to a new state database that lists only convictions or pending charges. If someone has been convicted of a felony, such as a Massachusetts drug offense, but has not been charged with any subsequent offenses, most felony convictions will be erased from the database 10 years following the completion of a sentence, and misdemeanor convictions will be removed five years after any sentence is completed. Murder and Massachusetts sex offense convictions will always appear in the database. Under the old law, felonies could be sealed after 15 years and misdemeanors after 10 years, but doing so required a court order, and those orders are difficult to get.

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“Justice Delayed is Justice Denied” is generally speaking an accurate truism. But in some cases, not so. Legal events this past week in Falmouth District Court make clear that exception.

Thirty years ago, in January of 1980, a woman by the name of Frances Carriere was found murdered in the bathroom of her Bourne, Massachusetts home. She had been stabbed three times in the lungs and heart. From the beginning, her then-estranged husband Edmond T. Carriere, whom Frances had been separated from, had been identified by authorities as a suspect. However, Edmond Carriere had been in Florida at the time of the Massachusetts murder, and police were not able to establish sufficient evidence to charge him with involvement in his wife’s murder. In 1982, a friend of Edmond Carriere’s by the name of Richard Grebauski was indicted by a Barnstable County Grand Jury in connection with Carriere’s murder, but the charges were dropped in 1983 when Philip A. Rollins, the then-Barnstable County District Attorney, determined there was insufficient evidence to go forward with the trial. From that point until 1999, while the case remained technically open, no progress was made, and most of the previous investigators on the case had either retired or died.

Then, in 1999, a state police sergeant by the name of Paul White who was then assigned to the Massachusetts State Police cold-case squad, and a trooper by the name of Chris Mason, took up the investigation anew. In April 2000, a special Grand Jury was appointed to examine evidence in the case. In 2001, Carriere’s four adult children also hired a private investigator by the name of Terrence O’Connell to investigate their mother’s murder. All these efforts yielded new results: In 2003, two men were indicted by a Barnstable County Grand Jury for the murder of Frances Carriere: Richard Grebauski, of Wareham (the same individual who had narrowly avoided being tried for Carriere’s murder in 1982,) and a Steven Stewart of Brockton. In 2004, curiously, Richard Grebauski died in a motorcycle accident while visiting none other than Edmond Carriere in Florida.

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