William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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I often get questions from readers and friends as to exactly what the charge of “resisting arrest” means. I’ve represented many clients on this charge (successfully, avoiding many convictions,) and I can assure you that this area of criminal law can be extremely murky.

The very term “resisting arrest” is a vague one. Exactly what does that mean? Obviously, an act such as physically fighting with a police officer who is attempting to make an arrest would clearly qualify as “resisting.” But assume for a moment that a person were to do something as non-combative as take a step or two back from an officer who was attempting to make an arrest of that person. Would that constitute “resisting” arrest? What about walking away from the officer? What about running away? In my career as a Boston criminal defense lawyer, I’ve seen dozens of scenarios where clients are charged with “resisting arrest.” Some of those charges were justified; many were not.

Essentially, this area of law boils down to a police officer’s power to make an arrest. Depending on the particulars of every given situation, (which are always fact-driven) those powers can be very broad. It is the wide breadth of those powers that can lead to abuses by some police officers. Bear in mind: My writings are not intended to criticize police officers in general, or particular police departments within the Commonwealth of Massachusetts. The vast majority of police officers are responsible stewards of their authority, and I have great respect and appreciation for a great many of them. But, as is the truth with any occupation or profession, there are always some individuals who abuse their power and positions of authority. That is one reason why criminal courts exist.

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In my last post on this subject, I discussed the irresponsibility of some organizations and media outlets, in taking extreme license in promoting legally invalid definitions of rape. In that post, I had mentioned views advocated by some colleges and universities.

When it comes to the university and academic community, consider the views of no less august an academic institution than Harvard University. In 1992, Harvard assembled a University Date Rape Task Force to study this problem and make recommendations for legislative changes in this area of Massachusetts sexual assault law. Shockingly, that report defined the majority of consensual sex between a couple as “rape” by the male, and proposed the most far-reaching restrictions of consensual sex imposed by any secular university in America. How? By requiring that almost all sex acts between a couple meet the requirements of a veritable contract negotiation, involving “expressed consent” and/or “reasoned consent” in advance of any sexual contact whatsoever. Apparently, in reaching these recommendations, one can only surmise that most of these task force members never had sex themselves.

Consent to sex rarely if ever involves negotiations and “expressed consent.” It is almost always the product of just the opposite: An escalating series of amorous exchanges which produce decreased reason and increased passion. More so, people in sexual relationships learn their partners’ preferences, enabling them to interpret what their partners want, without expressed discussions. Harvard University’s task force wanted to deem any sexual act engaged in by a couple as “rape” unless it occurred following an openly articulated, explicitly communicated “yes” by the woman (note: the report never even mentioned the possibility that a man could be the victim of a same-sex rape.) This Harvard-produced report ignored the fact that most couples often have sex without explicitly discussing it beforehand. It’s called spontaneity, the last time I looked. According to the Harvard report, rape encompassed “Any act of sexual intercourse which occurs without the expressed consent of the complainant.”

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Date Rape, also referred to as “Acquaintance Rape” can be a serious problem, and is real.

Notwithstanding that the media have been reporting date rape as a new phenomenon, primarily due to the covert use of an anesthetic drug, the practical reality is that drugs (most frequently alcohol,) have been involved in social situations culminating in Massachusetts sexual assaults since Prohibition ended, and even previous to that. The use or ingestion of chemical substances (primarily alcohol) during social or dating encounters is almost universal, and as a drug alcohol is notorious for lowering inhibitions, especially sexual inhibitions. The most recent difference – and a major one – surrounding date rape, involves the the covert, or secretive, introduction of a sedating drug into someone else’s (the victim’s) drink. Rohypnol and Gamma hydroxybutyrate — GHB — are two of the most common substances used in drug-facilitated sexual assaults. Rohypnol is known on the street as “roofies.”

The Massachusetts Legislature has proscribed this activity on a statutory level, in M.G.L. Chapter 272: Section 3: “Whoever applies, administers to or causes to be taken by a person any drug, matter or thing with intent to stupefy or overpower such person so as to thereby enable any person to have sexual intercourse or unnatural sexual intercourse with such person shall be punished by imprisonment in the state prison for life or for any term of years not less than ten years.” In a legally “pure” date rape scenario, after unwittingly ingesting the drug, the victim is rendered unconscious or so sedated that he/she cannot either formulate or communicate his/her consent or lack of it.

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Media Reports that Boston police seized almost a ton of marijuana earlier this week, will be seized on by marijuana opponents as dramatic evidence of a serious problem in our society – one that must be eradicated no matter what the cost to taxpayers, no matter what the waste in police and prosecutorial resources. From these corners, I’ve heard comments that say this is “Proof of how much of a problem we’ve got.”

I’ll agree we have a problem: But it isn’t the amount of pot that’s stored or circulating in Massachusetts, and isn’t Massachusetts crime – it’s the wasted financial and human resources that we spend trying to punish something that, when carried in modest amounts, isn’t even criminal anymore in this state. It has always struck me as amazing, how diehard opponents of marijuana can neither see nor learn from the lessons of this country’s failed, regrettable and ultimately tragic efforts at Prohibition in the 1930’s. That ill-conceived effort created more collateral crime, and caused more loss, deaths and heartache than had ever been conceived before its passage.

Criminalizing alcohol only spawned more crime, in the form of “protection money” to hide alcohol supplies; extortion to keep public officials and others silent about the use and location of it; and smuggling rings operated by organized crime (ever wonder where the name “Smuggler’s Notch” in ski country came from? It was a route alcohol smugglers used to illegally bring the product down from Canada, into New England.) These collateral activities resulted in violence, shootings and death on a shocking level. Police raids were conducted of ‘Speakeasies” where otherwise lawful people had to hide in basements just to socialize with a drink; “Dealers” came to prominence, who used violence to keep their territories and supply intact; Gang and turf wars were created, by competing underworld networks who battled to control the supply and availability of alcohol. Prohibition gave birth to Al Capone, fertilized and nurtured organized crime, and cost the nation and the states enormous money and law enforcement resources. The entire effort was a massive public policy failure, costing untold amounts of money and ruining many lives in the process. The federal government finally realized this failure, and made the sound decision to legalize the substance, regulate it, and tax it. Officials finally saw that any substance can be abused, that as human beings we are somehow pre-disposed to to seek relaxation from various natural substances, and that regulation and taxation of these products is the far wiser, more rational course than fighting something that cannot be defeated.

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This past Wednesday night, the Massachusetts House voted, 138-17, to approve legislation that would both reduce the waiting periods now required for sealing criminal records from public view, and prohibit employers from asking job applicants about prior criminal records on initial job application forms.

As my readers know, I’ve blogged previously about CORI reform efforts in Massachusetts. As I’ve said in this blog and elsewhere, a big problem complicating reform efforts in this area of Massachusetts criminal law, is that different people – especially employers – have different needs for this kind of information. Some need very extensive information, such as public safety employers, financial institutions or child-care providers. Other types of employers don’t typically need this kind of detail. Strict law-and-order advocates want each person convicted of any crime at all, to be required or produce a detailed record. Others feel that someone who has been found guilty of a relatively minor offense should not have to carry a “Scarlet Letter” for that offense, potentially foreclosing a number of opportunities for them in the future.

The legislation passed by the House the past week, would change present law to allow sealing of felony crime records 10 years after sentencing for an offense, instead of the current 15 years. The bill’s advocates argue that it will reduce barriers to jobs and housing now faced by hundreds of thousands of Massachusetts residents with prior criminal records. The House bill would also permit sealing of misdemeanor convictions from public view, such as Masschusetts assault and battery, or simple assault after five years, versus the current 10-year waiting period. House Judiciary Chairman Eugene L. O’Flaherty, D-Chelsea, said the intent of the current measure, the product of several years of legislative work, is supported by national studies that show that convicts who remain out of the criminal system for six or seven years after committing previous crimes, are less likely to re-offend. O’Flaherty and other advocates of the House bill argue that the reforms are “smart on crime as opposed to being weak on crime”, in that the reforms supposedly encourage convicts with prior criminal records to join the workforce. That may be true, but all it’s going to take to knock this argument down, is the media reporting just one Massachusetts murder or Massachusetts rape case committed by someone with a CORI who didn’t have to report a prior violent crime he or she committed because it was older than ten years, and, to be blunt, all hell will break loose.

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The U.S. Supreme Court’s ruling earlier this week, that juvenile sentences of life without parole in non-homicide cases violates the Eight Amendment’s ban on cruel and unusual punishment, brought humanity and civility back into many courthouses across the United States. No one, this writer included, doubts that juveniles can commit the most horrific of crimes. Nor do I doubt that, if convicted, those juveniles deserve swift and certain punishment – often including lengthy incarcerations. But for too many juvenile defendants in too many courtrooms in this country, “justice” has resulted in sentences of life without possibility of parole (“LWOP,” in criminal law circles,) and in many cases these sentences have produced a severity that is devoid of mercy, and devoid of hope.

Even more disturbing, is that in the vast majority of these non-murder cases, the sentences of life without parole that have been given, have been the product of mandatory sentencing, the dangers of which I have written about previously. Mandatory sentencing has been nothing less than judicial handcuffing, a knee-jerk reaction to crime often producing the worst of legal injustices while almost never achieving the claimed result of lowering crime rates. The Supreme Court’s ruling this past Monday in Graham v. Florida is just such an example of a horrid injustice produced by mandatory sentencing laws. The petitioner in this case, Terrance Jamar Graham was sentenced to a mandatory life term at age 17, without possibility of parole, after he violated his probation sentence for an earlier home invasion robbery; the year before that he was involved in an attempted robbery of a Florida restaurant. Obviously, this kid was trouble. Obviously, he needed to be taught a lesson, and obviously, that lesson needed to involve considerable jail time.

But to sentence a 17 year-old relatively small-time offender to life in prison, without the possibility of parole, for a probation violation? That was facially cruel and unusual, and it was a victory for justice and fairness that the Supreme Court heard this case and ruled as it did. Many such sentences have resulted from crimes that involved far less serious offenses, such as drug offenses, sexual assault and even assault and battery. Approximately129 juveniles in prisons across the U.S. are serving such sentences.

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Here’s an interesting question someone put to me recently. It has to do with rape and sexual assault:

“Let’s assume that I decided to pretend I was gay to get in with the more trendy women who hate me for being a “heterosexual pig.” Assume I got such a woman back to my place (on the pretext that I was gay,) and she starts coming on to me, saying I should try it (sex with a woman,) as I might learn to like it. Now assume I said something like “OK; I suppose if we really must, I’ll try it.” Since I got what I really wanted all along, but used a cunning if deceitful technique to achieve my aims, would that be considered rape?”

Well, well – Creativity never ceases, no? This man’s question is premised upon a legal concept known as “Fraud In the Inducement.” He’s borrowed this legal concept from contract law, and the theory has been used in legal practice areas as seemingly disparate as business litigation and family law/domestic relations law. This legal theory – essentially a defense – holds that if someone is enticed or induced to enter into a contract based upon fraudulent representations, then that contract is either void or voidable (“void” meaning “Void Ab Initio”, Latin for “Void from the beginning”; and “Voidable” meaning, cancellable at the election of the party claiming fraud.) In business litigation, for example, if one party to a contract has been induced to enter the contract due to material misrepresentations, the party seeking relief may be entitled to relief from the obligations imposed upon him in the putative contract.

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Now that the verdict is in on this case, the predictable debate over the insanity defense has followed in the vox populi. A number of media outlets have asked for my legal opinion on this verdict, and I’m proud to say that in the past 24 hours, I’ve appeared as a legal analyst on WGBH-TV’s Greater Boston with Emily Rooney, WBZ-AM Radio 1030’s Night Side With Dan Rea, as well as given interviews to New England Cable News and The Boston Herald.

Attorneys, editorial writers, bloggers and persons famous and unknown have opined about this case, this defense, and the verdict. Unscientific polls taken by some media (primarily the conservative talk radio show set,) have shown overwhelming support for the jury’s Guilty verdict. That’s understandable. Given that some of my statements to the media may have been received a little out of context, I’d like to put my position in writing for the record, here. For brief revisit of the insanity defense, see my previous post on this case.

A verdict of Not Guilty By Reason of Insanity does NOT mean that the defendant is released back into society, as though the verdict were simply “Not Guilty.” Essentially all defendants found Not Guilty By Reason of Insanity are committed to the state psychiatric hospital (Bridgewater State Hospital,) where they spend decades if not their entire lives behind bars and barbed wire. Also, a state “psychiatric hospital” is anything but a “hospital”, in the conventional sense of the word: It is the state prison for the criminally insane- surrounded by barbed wire, armed guards, searchlights, and everything you’d expect in a prison setting. While these defendants have a legal right to have their incarceration reviewed periodically, they are almost never released back into society. That’s just the practical reality.

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Today, John Odgren’s defense lawyer rested his case in the murder trial of the now 19-year-old young man who is accused of fatally stabbing 15-year-old James Alenson in a bathroom at Lincoln-Sudbury High School three years ago. As a Norfolk County Massachusetts criminal defense lawyer, I can assure you: Odgren’s lawyer has his hands full with this case.

During the past week, Odgren’s lawyer has called three mental health experts to the stand, (as well as the defendant’s own father,) to bolster Odgren’s insanity defense, claiming he was psychotic and delusional when he killed the Alenson boy. As I said, Odgren’s lawyer has his hands full – as does any defense lawyer advancing an insanity defense. The public – and the members of the public who constitute juries such as the one to decide Odgren’s fate – are very hostile to the insanty defense. The reason for this is largely owing to a misunderstanding of what “not guilty by reason of insanity” legally means, and what the legal consequences are to a defendant so adjudicated. “Not guilty by reason of insanity” does not mean that the jury found that the defendant did not commit the act he was charged with. Nor does this verdict mean the defendant is “innocent.” It means only that the defendant, when committing the crime he was charged with, was so mentally ill at the time he committed the crime, that he could not appreciate the criminality of his conduct or control his actions to conform to the law. More on that later in this post, but for now trust me – the defendant is not set free.

Last week, the prosecution produced its own psychiatric experts when it presented its case, but today the prosecution produced a particular rebuttal witness, and I was rather surprised at the relatively weak professional credentialing and minimal professional experience associated with this expert. In testifying for the Commonwealth, psychiatrist Dr. Alison Fife agreed with the defense’s psychiatric experts that Odgren suffered from mental diseases and defects, but disagreed with their assessment of his competency.

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Apologies to my readers for the gap since my last post: I was away from my office on a much-deserved trip. Today’s post is about a recent Supreme Judicial Court ruling, which doesn’t bode positively for many criminal defendants who, for a variety of legal and situational reasons, never should have been charged with a crime in the first place. (Yes, this happens a lot more than many people might think.)

Consider the story of one “Tina Boe”, a pseudonym used by court officials to describe the case of the following woman. There are actually two levels of errors that produced a considerable injustice here, so let’s take them one at a time: 1) In a hit-and-run Massacusetts car accident, “Ms. Boe” was mistakenly indentified as the driver of the car who ran from the scene after this accident. In fact, although this car was registered to “Ms. Boe,” she was not driving the car when the accident occurred – it was driven by another man. Because the license plate of the fleeing car was written down by someone at the accident scene and given to the police, the police department involved filed what is known as an “Application for Criminal Complaint” against the registered owner of the vehicle – “Tina Boe” – seeking that she be charged criminally with Leaving the Scene of An Accident, a violation of Massachusetts General Laws Chapter 90, Sec 24. The penalties for this crime vary, depending on whether the Operator is charged with one or more of three forms of this offense: A) Leaving the Scene of Property Damage only (Penalty: Fine of $20 to $200; and/or a jail sentence of between 2 weeks and 2 years); B) Leaving the Scene of Personal Injury Not Resulting in Death (Penalty: Fine of $500 to $1,000, and/or a jail sentence of between 6 months and 2 years); or C) Leaving the Scene of Personal Injury Resulting in Death (Penalty: Fine of $1,000 to $5,000 and/or a state prison sentence of 2 ½ to 10 years or jail for 1 to 2 ½ years. Regardless, for this offense there is a minimum mandatory 1 year sentence.) Even for the least of these charges, this is still a serious offense.

When a police department or anyone else takes out a criminal complaint against someone (which often involve offenses such as assault and battery, motor vehicle offenses or sexual assaults,) the person against whom the allegations are made is sent a notice by the court clerk where the complaint was filed, to appear at what is called a “Clerk-Magistrate’s Hearing” (alternatively referred to legally as a “Show Cause Hearing”.) At this hearing the Clerk or Assistant Clerk of the court hears from the person or organization filing the complaint (here, police department involved,) as well as the respondent (the person against whom the complaint was brought,) together with any witnesses. At that conclusion of that hearing, the Clerk will either grant the petitioner’s complaint, and issue formal charges against the respondent, or will deny the complaint, at which point the matter is dismissed, no charges are filed, and no further action of any kind is taken against the respondent. The respondent will have no criminal record of any kind related to that matter, nor will a Probation Record be generated from the matter. If ever asked by a potential employer or any other organization, “Have you ever been charged with a crime?“, the respondent can always answer “No.”

However, if the Clerk allows the complaint, formal charges will then be issued against the respondent, who then instantly becomes a “defendant” in a criminal prosecution. A formal Massachusetts Criminal Offender Record Information (CORI) file is generated, reflecting that the person has been charged with a crime, an accompanying Massachusetts Board of Probation Record is generated, and the relevant District Attorney’s Office takes over to prosecute the case. How it ultimately turns out, always varies. But even if the defendant is ultimately found not guilty of the charge(s), that person will still always have a CORI, and a Board of Probation Record. Therefore, when an Application for Criminal Complaint has been taken out against someone, what happens at such a Clerk’s Hearing (“Show Cause Hearing”,) is extremely critical.

Which brings us to Mistake Number Two in this case: The day Ms. Boe went to court to appear at this Clerk’s Hearing, she was mistakenly directed to the wrong hearing room. Because the Clerk and the police prosecutor awaiting her determined that she “never showed up”, the Clerk allowed the complaint, and formal charges were issued against Ms Boe. At that point, all the negative consequences that I just outlined above (when a complaint is granted against someone,) became a reality for “Tina Boe” – a completely innocent person.

When criminal charges were formally brought against Ms. Boe, and Judge Kathleen Coffey of the Boston Municipal Court learned of these twin errors and the injustice that resulted, she granted a motion the defendant filed, called a Motion To Expunge the Record. As its name implies, this is a Motion to essentially erase the fact that criminal charges were ever even brought in the matter. Its specific purpose is to redress a glaring injustice done to a defendant, when it appears from all the evidence introduced, that the defendant never should have been charged by the Commonwealth in the first place. The judge’s order in this case directed the state Commissioner of Probation to expunge (essentially remove from all public records,) Boe’s CORI and Probation Record. This is fair and just relief, and indeed, Judge Koffey described it as such in her Order.

However, the state Commissioner of Probation didn’t wish to comply, and appealed the judge’s ruling to the Massachusetts Appeals Court, questioning the judge’s authority to issue such an Order. Soundly, the Appeals Court denied the Commissioner’s appeal. When the matter finally appeared settled at that point, the SJC got involved – and ruled that the judge lacked the legal authority to grant the Motion to expunge the record in this case.

In my legal opinion as a Boston criminal defense lawyer, this ruling lacks the fundamental fairness that should emanate from the state’s highest court. While the opinion may be technically accurate in terms of its analysis of the authority that a District Court judge has, it flies in the face of the spirit – and the practical meaning – of the word “justice”. While the court did rule that judges have the authority to seal criminal records – and that judge Koffey could order Tina Boe’s record in this matter sealed – that does little for this defendant as a practical matter. She still has a CORI; she still has Board of Probation record – and always will have both. If she is ever asked in the future by a potential employer, academic institution, or any other organization if she has ever been “charged” with a crime (even though she wasn’t convicted,) she must answer “Yes.” And within this entire matter, she was completely innocent – she wasn’t even present at the scene of the crime.

As I’ve noted before, my law school professors used to tell me, “Bad cases make good law”, meaning it’s the tough rulings that can often serve higher purposes later on. Perhaps, but tell that to whoever “Tina Boe” really is. I don’t think she’d agree. Aside from the wake-up call to reality that this ruling should bring to the SJC, what this case illustrates is the extreme importance that attaches to the outcomes of Clerk’s Hearings, or Show Cause Hearings. Because these hearings often do not involve a preceding arrest of the person against whom the complaint is brought, they are sometimes perceived by respondents as not being very serious, or requiring a lawyer’s expertise. Such a view couldn’t be more foolhardy. If you or someone you care about has received a notice to appear at such a hearing, whether the complainant is an individual person or a police department – always hire an experienced Massachusetts criminal defense attorney to appear and represent you at this hearing. If you don’t and the complaint is allowed, the consequences will follow you for many years to come.
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