William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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As readers of this blog are well aware from my previous posts on the subject of the school bullying death by suicide of Phoebe Prince in January (as well as the suicide death of Carl Joseph Walker Hoover last April 2009, I feel that there should be much stronger anti-bullying laws on the books in Massachusetts – stronger than the one recently passed by the Massachusetts House of Representatives. That proposed law would require school staff members to report suspected incidents and require principals to investigate those incidents. It would also require that schools teach about the dangers of bullying – but it would not make bullying a crime.

There should be a law making bullying in schools a criminal offense- and one can only hope that on the civil side of the law, that courts in this sate and elsewhere will soon issue clear and unequivocal decisions holding school districts, teachers, and school administrators liable for failing to take reasonable measures to stop such vicious assault and battery. Teachers unions and school districts howl in protest at this idea. They and similarly-minded people say that it’s too difficult to adequately “define” bullying on a legal level – that proposed definitions of bullying are “too vague”, and a “threat to free speech.” If the tragic cases of Phoebe Prince and Carl Jospeh Walker Hoover can’t convince these Neanderthals, they should read the case of Nicholas Parsons of Tewksbury.

Finally, today, a Massachusetts District Attorney stood up and took the courageous step that a lot of people watching the cases of Phoebe Price and Carl Joseph Walker Hoover were waiting for: Yesterday, March 29 2010, Northwestern District Attorney Elizabeth D. Scheibel announced that nine separate felony indictments have been issued against nine teenagers attending South Hadley High School, all involved in the brutal bullying campaign waged against Phoebe Prince. The felony indictments range from stalking to statutory rape. The most serious of these charges carry lengthy state prison sentences, though I doubt any of these defendants will serve time in state prison. Even though as a Boston criminal defense lawyer I practice on the other side of the legal aisle than District Attorney Scheibel, I applaud her for this unequivocal action.

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Forcible rape or sexual asaault, when it actually occurs, is a crime that is despicable. I wanted that to be my opening sentence in this post, for a good reason. When rape actually occurs, it should be investigated and prosecuted thoroughly. But in almost all rape and sexual assault cases, the central problem is that no one else was around during the alleged rape, other than the alleged assailant and the alleged victim, to offer any corroborative testimony as to the allegations made, or to the consensual or non-consensual nature of the event.

Increasingly, the problem of false rape accusations is coming more and more to the media’s, and the public’s, attention. Recent high-profile cases such as the Duke University Lacrosse case, in which three white players on the Duke University Lacrosse team were accused by a black erotic dancer of raping her, only to be later vindicated, and the Hofstra University rape case where a student accused four male students of rape, only to later recant her story, are becoming more common. The problem in all these cases is, “Who is telling the truth?” Substantively, a legal defense to a rape case consists of one of two approaches: 1) That sex between the accuser and the accused never occurred; or 2) That sex did take place between the accuser and the accused, but it was consensual. It may come as a surprise to a good number of people, but false accusations of rape can take either form of these two scenarios.

Let’s examine two questions: 1) Why would anyone falsely accuse another person of rape?; and 2) How common is the incidence of false rape accusations? The most common answer to the first question, usually reveals some element of revenge, for something done to the accuser that she (or he, believe it or not,) is angry or enraged over. A study conducted on this subject in the Journal Archives of Sexual Behavior, (Vol. 23, No. 1, 1994,) reported that false accusers were commonly motivated by a need for an alibi or a desire for revenge. In the Journal Forensic Science Digest, (Vol. 11. No. 4, December 1985,) equally common reasons given by women who falsely accused somone of rape were “spite or revenge,” and to compensate for feelings of guilt or shame (for having willingly engaged in the prior sex.) Alleged rape victims have admitted in the past that they had made the false rape charges for three reasons: 1) To create an alibi about some other event; 2) To exact revenge; and 3) To generate attention or sympathy. The need for attention is not uncommon, as was revealed in the case of the Detroit woman who gave police details about her alleged rapist and his truck, then admitted she had lied: it never happened. (Source: Detroit Free Press, April 21, 2004.) More recent has been the case of Dallas Cowboys football player Michael Irvin, who was falsey accused of sexually assaulting a woman in July of 2007. That woman later recanted her story, and the District Attorney involved dropped all charges against him.

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The twisted saga of the Amy Bishop case became (hopefully) a little clearer today, with the release of a press statement by Congressman William D. Delahunt, who was the Norfolk County District Attorney at the time of the May 1986 incidents surrounding the shooting death of Bishop’s brother, Seth Bishop.

Much has been made in the past week, concerning the fact that Amy Bishop was never charged with a crime in connection with her actions following the shooting death of her brother Seth. Those actions several Massachusetts firearms violations wich included Bishop aiming a loaded shotgun at several people, including two employees at Dave Dinger Ford in Braintree, where she demanded a getaway car and keys. Armed officers from the Braintree Police Department had to tackle Bishop from behind to wrest the shotgun from her, yet she was never arrested, or charged with any Massachusetts crimes. Twenty-four years later (with some disturbing and highly suspicious criminal conduct in between,) Bishop shot five people on the campus of the University of Alabama, killing three and wounding two. The central question on everyone’s lips for the past week: How could Bishop have been released? How is it she was never even charged with a crime? The response from all the various law enforcement and prosecutorial parties involved has, so far, largely been finger-pointing.

The question is, whose finger is pointing in the right direction? The parties involved here were: 1) The Braintree Police Department. They had primary law enforcement and investigative jurisdiction, as the crimes occurred in the town of Braintree. 2) The Massachusetts State Police. They were brought in because a killing and possible murder may have been involved, and when such an event occurs, it is standard procedure that State Police investigators are called in. (Actually, a state Police unit is already assigned to and housed within each District Attorney’s office.) 3) The Norfolk District Attorney’s Office. They would have been responsible for prosecuting any crimes that police investigators referred to them. Let’s review who should have done what:

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The recent media coverage about the death of Nancy Kerrigan’s father, which has now been ruled a homicide by the Massachusetts Medical Examiner’s office, illustrates how fast and furious an argument can escalate into something far more dire: Potentially a murder charge. Kerrigan, of course, is the 1994 Olympic figure skater who was the target of a physical attack by associates of her rival, Tonya Harding.

Kerrigan’s brother, Mark Kerrigan, 45, was arrested on January 24 on a charge of assault and battery after Stoneham police responded to a domestic disturbance call from the Kerrigan home. On arriving, the police reportedly found Kerrigan’s father, Daniel Kerrigan, lying unconscious on the kitchen floor at the house at about 1:30 AM. He later died at the hospital he was taken to. The medical examiner’s office determined that Daniel Kerrigan suffered from high blood pressure and clogged arteries, but that the cause of death was “cardiac dysrhythmia” – which is an interruption of the normal heart beat – after a “physical altercation with neck compression” that fractured the cartilage in his larynx. In other words, that Mark Kerrigan precipitated the events that led to the elder Kerrigan’s death, through the act of putting his hands around his father’s neck and attempting to strangle him.

Officers said Mark Kerrigan appeared intoxicated and was found in the basement trying to hide a bottle of Scotch. Police reported that the younger Kerrigan was combative, that they had to use pepper spray to subdue him, and had to forcibly carry him out of the basement. The report filed by the arresting officers says, “(Mark Kerrigan) said he wanted to use the phone and his father would not let him. He said he struggled with his father and put his hands around his father’s neck and his father fell to the floor.” The younger Kerrigan reportedly has a long history of domestic violence, substance abuse and mental illness. Last year, he was released from prison after serving more than two years for assaulting his wife and threatening her with a knife. He was staying in his parents’ home, even though they had sued him recently for what they said was over $100,000 in unpaid debts. He was reportedly taking medication for post-traumatic stress syndrome, and is presently being held under psychiatric evaluation. Nancy Kerrigan, joined by her brother Michael and their mother Brenda, have criticized the coroner’s finding as “premature and inaccurate,” insisting that her brother is not to blame for the elder Kerrigan’s death.

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A funny thing happened on the way to the Common in 2007.

It seems that one Simon Glik, 33, was walking along Tremont Street next to the Boston Common on October 1 2007, when he observed three (yes, three) uniformed Boston police officers arresting another man, and using considerable force. Glick, a law student at the time and now (perhaps no surprise,) a criminal defense attorney, heard another man shouting “You are hurting him, stop!” at the officers. Thinking that he was witnessing three police officers brutalize the man who was being arrested, Glick used his cell phone to video record the event. When these officers saw Glick recording them on video, they arrested him. For what? 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. The staute provides that persons violating the law may be punished by a fine of up to $10,000, or imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. In this area of law, Massachusetts is known as a so-called “two-party consent” state, meaning both parties to a phone conversation or otherwise private meeting must be informed of, and consent to, audio recording of the conversation, in order for that recording to be legal. It was (and is) designed to prevent someone from secretly audio taping a phone conversation, or secretly audio taping a meeting being held.

Not surprisingly, the case was later dismissed, particularly due to the fact that there was no “secret” recording of this event. Notwithstanding, it seems obvious (at least to me, as a Boston criminal defense lawyer,) what these officers were trying to cover up: The fact that they were using excessive force in arresting the first man, which Glick (and at least one other observer – the man who yelled out “Stop, you are hurting him!”) had witnessed. As a Massachusetts criminal defense attorney who has defended cases from assault and battery to drug offenses and sexual offenses, I can only imagine the reaction of the Assistant DA in the Suffolk County District Attorney’s office who ended up being the recipient of this case (“These cops expect me to prosecute for this? It’ll be thrown out in a second.”) As I said, this statute was intended exclusively to prevent hidden, covert audio recordings of phone conversations or otherwise private meetings – not video recording of public events. Without doubt, these officers saw themselves getting caught in the act of police brutality, and then made things even worse by arresting Glick on this essentially baselss charge.

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Here’s an interesting case – controversy, actually – that involves a hybrid of criminal law and tort law – specifically, the tort of wrongful death.

Famous television legal journalist Nancy Grace is known far and wide for her aggressive, take-no-prisoners on-air persona. Her interview style is very probative, and she doesn’t let evasive interview subjects off the hook easily. Ms. Grace is a former prosecutor, and it forms her approach to the subjects she covers on her HLN cable network show, “Nancy Grace” – HLN’s most popular show. (The show, of course, covers criminal law almost exclusively.) Ms. Grace has an interesting background. Professionally, she was a career prosecutor for almost a decade in the Atlanta-Fulton County, Georgia District Attorney’s office. She prosecuted primarily felony cases involving serial murder, serial rape, serial child molestation and arson. In sum, the most gruesome of cases. Personally, Ms. Grace was the victim of violent crime herself, when her fiancé was murdered many years ago. She has stated publicly that this tragedy will never leave her – understandably so.

The sum of this personal tragedy and professional experience is that Ms. Grace takes a decidedly pro-victim philosophy on her show. Because of this, a lot of defense attorneys across the United States doesn’t care for her, thinking her biased towards victims before the fact, in any case she examines. One prominent criminal defense attorney has publicly said of her, “Nancy has never met a victim she didn’t love and never met a suspect she didn’t want to tar and feather.”

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The criminal defense bar in Massachusetts has for over a year paid close attention to defrocked Catholic priest Paul Shanley’s appeal to the Massachusetts Supreme Judicial Court (SJC), of his 2005 rape conviction. The SJC’s decision is now in, and it isn’t good for Shanley, or for many Massachusetts rape defense lawyers.

Shanley, one of the more well-known of several catholic priests that surfaced as part of the catholic clergy sex abuse scandal that erupted in 2002 in Boston, was convicted in February of 2005 on two counts of rape of a child under the age of14, and of indecent assault and battery of a child under 14 (those charges are subsidiary to the rape charges.) Shanley appealed his conviction all the way to the SJC, advancing primarily one legal argument: That the Superior Court judge who allowed expert testimony on the subject of “repressed memory syndrome,” did so erroneously, and thus that his conviction should be voided. For those of my readers that may not immediately recall, “repressed memory syndrome,” (clinically referred to as “dissociative amnesia,”) is a legal theory that developed in largely the past ten years. In sum, it argues that a person who suffers a psychological trauma, may unconscionably repress, or “forget” the memory of that incident, until a ‘triggering event’ stimulates a recovery of the memories.

This prosecutorial theory is important, because it allows prosecutors to ‘get around’ statute of limitations problems, which would otherwise prohibit the state from prosecuting certain crimes. You see, if an alleged victim to a crime does not come forward to make a complaint to police authorities and therefore allow the Commonwealth to file charges against the defendant, within the time period required by that statute, then the prosecution is statutorily barred. In this case, Shanley’s alleged victim came forward in 2002, when the clergy sex abuse scandal broke wide open in the media. The victim claimed that only then – in 2002 – did he suddenly remember being allegedly raped by Shanley when he was an altar boy several years earlier – because, he claimed, the memory of the alleged rapes was triggered by exposure to media coverage of Shanley’s arrest on charges of raping and abusing other boys. The timing of an alleged victim’s complaint to authorities in both this case, and all similar cases, is critical: If the alleged victim waits too long (i.e., beyond the statute of limitations period) to come forward to authorities and formally commence prosecution of a defendant, that person forever loses the ability to have that person prosecuted. That rule of law was developed for very good (and specific) reasons. It prevents people from being forever exposed to prosecution for a serious crime, if an alleged victim does not choose to come forward to authorities within a lengthy – quite lengthy- period of time.

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In my previous posts on the subject of what can happen when a defendant who has been sentenced to probation, violates one or more of the terms of his probation agreement, I discussed the case of Massachusetts state senator Anthony Galluccio. Galluccio was sentenced to probation recently for leaving the scene of an accident last October 4 2009, in which a 13-year-old boy was I injured. Because Galluccio had previously been convicted twice on Massachusetts drunk driving charges, (one of which he had been pardoned for) and because investigators suspected that alcohol was involved in the October 2009 vehicular accident where Galluccio left the scene, a judge placed Galluccio under house arrest and placed him on probation. One of the terms of that probation order, was that Galluccio abstain completely from ingesting alcohol. To monitor his compliance with that order, an electronic alcohol monitoring device (called a “Sobrietor”) was installed in Galluccio’s home, and he was required to submit to random alcohol testing with that device.

Three days after receiving that sentence, Galluccio tested positive (on three separate tests) for alcohol. He was then arrested for a Massachusetts probation violation. As part of his defense, he initially claimed that his toothpaste caused a false alcohol reading (he later abandoned that defense). At his court appearance earlier this week, Galluccio showed up in court with two defense lawyers, several public relations representatives, and expert witnesses testifying on his behalf that the “Sobrietor” accuracy might be questionable.

The result? Handcuffs and a trip to a Billerica jail cell for the next 12 months. This very public story illustrates just how serious probation agreements are. Especially when it comes to Massachusetts OUI charges and alcohol abuse. Some defendants think that they can ignore probation agreements – but they’re serious business. The judge in this case, Matthew J. Nestor of Cambridge District Court, had (generally speaking,) three options in front of him, after hearing Galluccio’s defense at this probation revocation hearing: 1) Terminate probation, 2) Re-probate him with more serious conditions – including mandatory alcohol treatment at an inpatient detox center – or 3) Impose a one-year jail sentence. Galluccio and his lawyers probably thought he’d get one of the first two sentences. But as a Dedham Massachusetts OUI defense lawyer, I can assure you: With multiple offenders, luck always runs out.

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In my last post, I discussed the most recent Massachusetts OUI arrest involving state senator Anthony D. Galluccio, and his most recent, and rather novel, legal defense. I made the argument that while as a Boston criminal defense lawyer I zealously and aggressively fight for my clients in court, there comes a time, if a person is arrested multiple times for the same offense (such as OUI or a Massachusetts sex offense,) to own up to the problem, cease the excuses, and get effective treatment.

While Galluccio awaits trial on these latest charges, state officials are attempting to have his probation revoked, (which he was given from an earlier offense.) Probation revocation is a serious matter. It occurs when a person who has been sentenced to probation, violates the terms of that probaton. Whenever a defendant receives a sentence of probation, whether it is in place of a jail sentence or follows a completed jail sentence, that person enters into a written probation contract with state Pobation Department officials, wherein he/she agrees in writing to adhere to specific terms of probation. Those terms almost always both require, and forbid, certain conduct (probation terms are widely variable depending on the offense and circumstances; there is no “one sentence”.) If a defendant is found to have violated the terms of that probation agreement, the result can easily be a jail sentence. As part of a guilty plea agreement on the October 2009 charge Galluccio recently faced (leaving the scene of an accident,) he was ordered to serve two years of probation, which recited clear terms that he abstain from alcohol, undergo random urine tests, and use a Sobrietor, allowing officials to monitor his blood-alcohol content while he was at home.

The procedure that is usually followed for a probation revocation hearing, is that a “detention hearing” is first held, to determine whether the defendant should be jailed until a “full revocation hearing” can be later held. This is a more detailed, formal hearing to determine the probationee’s incarceration. For Galluccio, a revocation hearing has been scheduled for Jan. 21 in Cambridge District Court in Medford. He faces serious legal trouble.

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Today’s post is a real story about limits – in life, professionally and personally. Before I say anything else, let me emphasize the obvious: I’m a criminal defense lawyer. I make my living, in part, by powerfully and aggressively defending clients who are accused of crimes. I fight to the end for my clients. Philosophically, I’ve always cherished the constitutional presumption of innocence in our country, and I believe that presumption should never be diminished in any way. All that being said, there are also times when I believe that if a defendant has committed multiple offenses for a specific act (such as drunk driving,) and has received multiple convictions or other findings tantamount to a guilty plea on those offenses, then he or she is arrested yet again for the same offense, the time comes when that person must own up to their problem, and pay the price that the courts have decreed is appropriate for that offense. As a Boston criminal defense lawyer, I can tell you that this type of situation is most often witnessed in OUI/alcohol and sex offenses.

Which brings us to today’s topic. Within the state senate in Massachusetts (a body not known for the sterling reputations of all who have been elected to it,) there is a certain state senator by the name of Anthony D. Galluccio, who stands out as a poster boy for the “Enough Is Enough” doctrine I referred to above. Galluccio, a Cambridge Democrat, has previous to today’s date been convicted twice of Massachusetts drunk driving/OUI charges. Subsequent to those convictions, in December 2005 he also caused a four-car accident in downtown Boston at 2:00 AM. Following that incident, a clerk-magistrate ruled that he had been drinking, but could not find sufficient evidence to legally support a charge of driving under the influence of alcohol. File that under “lucky break.”

Predictably, it gets worse: Just two months ago, in October, Gallucio was charged with leaving the scene of a car accident, in which he rear-ended a minivan carrying a family of four, resulting in a 13-year-old boy and his father suffering minor injuries. Just prior to that accident, a bartender in Cambridge, where Galluccio had been drinking, called Cambridge police to request that Galluccio be driven home, as the caller felt Galluccio was was too inebriated to drive. Notwithstanding, Galluccio refused to comment on whether he had been drinking before the October crash, telling reporters only that, “I cannot overstate how regretful I am,” and that, “I made a firm decision that there will be no alcohol in my life.” As a result of that incident, this past Friday, Galluccio, 42, was sentenced to six months of home confinement and to two years of supervised probation. He was required to avoid all alcohol use, and required to submit to random testing for alcohol use.

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