William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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What I’m going to write about today will be of interest to not only Massachusetts OUI lawyers such as myself, but to anyone who drives in Massachusetts. Previously, on July 1 of this year, I blogged about a case that was handed down by the United States Supreme Court earlier this year. While I didn’t cite that case by name in that blog, it was Commonwealth v. Melendez-Diaz. In that ruling, the U.S. Supreme Court held that lab reports offered as evidence by prosecutors to prove the chemical composition of substances that it (the prosecution) claimed were illegal drugs, would in the future require the in-person testimony at trial, of the lab technician(s) who actually tested the substance. This ruling was substantial for persons accused of Massachusetts drug crimes, as prior to this ruling, the prosecution needed to introduce only a certificate from the State Police Crime Laboratory, showing that the substance tested was a certain drug.

From that ruling forward, prosecutors would have to bring the specific lab technician who tested the substance into court, to allow the defense to cross-examine him or her as to various aspects of the testing, of their own qualifications and experience, the testing equipment used, etc., etc. The core of the U.S. Supreme Court’s reasoning in this case, was that “Confrontation Clause” of the U.S. Constitution, which requires the appearance of live witnesses who are testifying against a defendant, would be violated without the in-court testimony of the actual lab technician who conducted the drug testing. The decision was widely criticized by prosecutors not only in Massachusetts, but across the nation. (Notably, it was Massachusetts Attorney General Martha Coakley who argued – and lost – the case for the state of Massachusetts.) From the day the decision was handed down, prosecutors have argued that the requirement of personally producing state lab technicians to testify in person about these types of illegal drug possession and drug trafficking cases, would grind prosecutions to a halt: The argument was that District Attorneys’ offices across the state simply prosecute too many of these cases to be saddled with this “burden”.

Recently, things just got a lot more interesting in the Massachusetts criminal court system – and may get even more so in the next few months You see, the ruling on lab technicians in Melendez-Diaz, had been limited to cases where drug samples had been tested by state lab officials, in cases specifically involving Massachusetts illegal drug possession and distribution charges. But last month, in a Marlborough District Court case involving Massachusetts OUI charges, things took an interesting turn. First, some background: The case name is Commonwealth v. Parmenter ,and the defendant, one Brian Parmenter, had been in a motorcycle accident that resulted in severe injuries to him and his passenger. Though Parmenter appeared dead at the scene, a nurse who happened to live near the accident was able to revive him. Parmenter was taken to a hospital, and during his emergency room treatment, blood was drawn by hospital personnel and tested for alcohol for medical reasons.

Importantly, his blood was not tested for alcohol at the request of police or law enforcement authorities. Parmenter was eventually charged with Massachusetts drunk driving/OUI offenses, and prosecutors obtained a warrant for his medical records and test results. Prosecutors obtained these medical records, for the purpose of introducing those records at trial to prove that his blood alcohol level at the time of the accident was .09 or higher (the state limit is .08 – any higher than that, and there is a “per se” presumption in Massachusetts, that an operator was legally impaired.) In what was no surprise to me as a Norfolk County Massachusetts OUI attorney, the prosecution did not intend to call the phlebotomist who conducted the blood test. (No surprise, because prosecutors usually don’t call technicians to the stand in Massachusetts OUI cases. Normally, they just have the arresting police officer testify as to Breathalyzer test results .)

This is where things get interesting: Parmenter’s lawyer filed what is called a “Motion in Limine” (which is a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial,) in which he argued that, per the Supreme Court’s ruling in Melendez-Diaz, the hospital blood test could not be admitted without live testimony from the medical technician who either drew the blood or tested it.

In my next post, I’ll explain what happened from there, and what these developments may mean for persons arrested for Massachusetts OUI offenses.
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My apologies for my absence here recently – I’ve been sidelined with a bad cold. Here’s an item that will probably be appreciated mostly by lawyers (vs. lay persons,) but on a legal level, the issue is significant. It’s a decision by the state Supreme Judicial Court (SJC) that more clearly defines the legal element of “attempt” within the criminal law context.

Before reviewing this case, let me say that almost anyone reading about this case – in particular of the SJC’s decision to overturn this conviction – is going to be disgusted over the facts within the case. Regarding the facts of this case, I’m equally disgusted. But when considering the ruling, it’s critical to bear in mind the legal elements of the court’s decision.

Back in 2004, the Worcester, Massachusetts Police Department was conducting an undercover sting operation to root out Massachusetts sex offenders – particularly child sex offenders. Posing as a prostitute, an undercover female police officer met with one especially perverted, twisted individual by the name of Kerry Van Bell. Van Bell met the “prostitute” in a convenience store parking lot, where the undercover officer offered to make a 4 year-old girl available to him for sex. The undercover officer informed Bell, however, that the child was not with her in her car, and that Bell would have to follow her in his car to drive to where the child was located. Bell, while voicing his displeasure that he child was not readily available to him then and there, agreed to follow the undercover officer in her car, and agreed to pay $200 for the child upon arriving at the “destination.”. Upon exiting the store parking lot, police cruisers in waiting swarmed in on Bell, arresting him and charging him with attempted rape of a child (M.G.L. c.265, Sec. 13B -13B-3, and solicitation of sex for a fee (M.G.L. c. 272, Sec. 2-8.)

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Here’s an interesting development that’s appropriate for the high school and college football season, and it underscores that the words “foul play” have as much to do with criminal law as they do with sports.

An Arlington, Massachusetts high school football player has been formally charged with criminal assault and battery, as the result of a “head-butt” he inflicted against an opposing team’s player. Arlington Catholic High School football player James LaShoto was arraigned this Friday in Cambridge District Court, where his lawyer entered a plea of not guilty on his behalf. Authorities say the 17-year-old LaShoto deliberately “head-butted” Abington High School player Daniel Curtin in his (Curtin’s) head, after Curtin’s own helmet was knocked off during a Sept. 19 2009 game. Curtin suffered a concussion as a result, and could not play football for 10 days due to medical concerns surrounding his head injury. Arlington Cathlolic High School suspended LaShoto for two games as a result of the incident. (Can someone say “slap on the wrist”?) His lawyer, Ronald Martignetti, said although the play was “dirty,” it did not constitute a criminal act, and thus his client should not have been criminally charged.

An interesting question. Legally, criminal assault and battery occurs when a victim is placed in imminent apprehension of an un-consented to physical contact, and when some type of harm results from that contact (however minor the harm might be.) The legal issue that is going to determine whether or not this particular defendant should be found guilty of this charge, centers on two legal elements here – the elements of “intent” and “consent”. Specifically, intent on the part of the defendant, and consent on the part of the victim. In contact sports such as football, aggressive physical contact is unavoidably expected, and so are injuries. Players provide what is known as “implied consent” to contact of the type that would be normally expected and required within the context of the sporting activity. (The consent is “implied” by virtue of voluntarily participating in the sporting activity; hence, there is no need for players to execute written or “express” consent.)

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I’ve been traveling out of office for a couple of weeks, and I haven’t posted anything for too long – my apologies to my loyal readers. Today, I want to send this brief message: I’ve been given a lot of good things in this life. I’ve had my share of suffering and personal losses, also, but I am grateful for what I have. Most importantly, for the gift of my beautiful wife (who had a birthday yesterday,) and for those I am close to. We are all at different places in life, and we all have different blessings and burdens. But I think we can all agree that, unfortunately, there are always those who have less then we do, and that we can all be grateful to varying degrees for what we have in life. Debbi and I are blessed to be here in Hawaii over Thanksgiving, and while this is a beautiful place, it is also marked by a very high cost of living, and by the sadness of too much poverty for too many who live and work here. We hope we can do our part to leave this place having extended some kindness and benevolence to those who live here, especially on Thanksgiving Day during our visit.

I passed a Buddhist statuary today, and a particular contemplation struck me as important: “When Wishes Are Few The Heart Is Happy.” That is a tall order in a world dominated by a consumerist-mentality and by nonstop messages of “Buy, Get, Acquire.” But these age-old words are important to remember, or it becomes hard to be grateful for anything.

And so I give thanks for the blessings I have, including my loyal readers, my friends and my clients.

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Not that many people outside of the criminal defense profession or the criminal justice system are aware of this, but in Massachusetts, once a convicted sex offender’s prison sentence is finished, the story isn’t necessarily over. You see, once a convict’s criminal sentence for a Massachusetts sex offense has been completed, the state has the right to seek an (involuntary) civil commitment of that person, if in the Commonwealth’s opinion, that person continues to pose a threat to the public if he (or she) is released. This process is known as a “civil commitment petition,” and if the Commonwealth’s petition and argument is successful, the defendant is transferred out of the prison he has served his criminal sentence in, and held (against his will, obviously) under civil law in the state hospital for the sexually dangerous, which is Bridgewater State Hospital. There, he will be held and treated indefinitely, until when (or if) medical authorities determine that he no longer poses a threat to the public if released.

That scheme can make sense from both a correctional, as well as public safety, point of view. Notwithstanding the fact that I am a practicing Massachusetts criminal defense attorney, I can easily acknowledge that it makes no sense to allow a serial rapist or serial child abuser to be released after completing a criminal prison sentence, solely because “X” number of months or years has been served, if that convict remains just as dangerous at the completion of his criminal sentence, as he was the day he began it. The critical issue is, however, who should decide this question – a judge or a jury? Historically in Massachusetts, it is the defendant who has been allowed to make that choice whenever the Commonwealth filed such a petition – not the particular District Attorney’s office filing the petition. What’s the big deal with that, you ask? Well, most defense attorneys representing a convict at such a trial would choose to have the matter heard by a judge, not a jury, and a prosecutor has had no say in the matter. The reason that most defendants choose to have the matter tried before a judge, is that many defense attormeys believe that historically, judges are more likely to release a convict, than a jury. Judges typically decide this issue based upon very formal, and justifiably demanding, legal criteria before granting a prosecutor’s petition. The Commonwealth must meet specific legal criteria in demonstrating that the convict suffers from a “mental abnormality or defect,” therefore making him likely to re-offend. A good number of judges have historically denied those petitions, because judges interpret those petitions very strictly. The result: Massachusetts sexual offense convicts are released, and many re-offend. This was witnessed most recently in a widely-publicized sexual assault at Massachusetts General Hospital.

In that particular case, the District Attorney’s office that was involved, had petitioned a court to civilly commit the convict at the end of his sentence. At the defendant’s request, the matter was heard before a judge, and the judge denied the prosecutor’s request, finding that the Commonwealth did not meet its burden of proof, and therefore that the convict did not pose a continued threat to the public if released. As fate would have it, the convict did re-offend, committing a sexual assault in Massachusetts against a woman, seriously injuring her. Predictably, the media in Boston and elsewhere reported that a judge released this person, and a public uproar (justifiably) followed. Many average citizens believe that too many judges are too lenient in deciding these petitions, and several media observers have noted that these petitions would be better decided by a jury chosen from the community, rather than a judge.

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Here’s an interesting case that might fall under the tagline, “Don’t answer that phone!” In a case that illustrates occasional over-reaching by police officers in their attempts to secure evidence of criminal wrongdoing, a Massachusetts Superior Court judge recently ruled that evidence, obtained by police officers who answered a defendant’s cell phone while he was being booked, cannot be admitted as evidence against that defendant.

It’s a case that some people might say warranted the admission of the evidence obtained by the police, but constitutional principles say otherwise. It seems that last December 15 2008, Lynn police officers on patrol spotted one Felipe Diaz and a passenger, driving in Diaz’ older-model pickup truck. One of the officers recognized Diaz from prior encounters with the Lynn Police Department, also recognized his truck, and knew that Diaz’ drivers license had been revoked for previous Massachusetts motor vehcile offenses. The officers stopped Diaz, arrested him for operating without a license, and placed him in handcuffs in the police cruiser. Diaz’ passenger was interviewed and allowed to leave. The officers had Diaz’ truck towed, and consistent with standard police procedure, conducted an inventory search of the vehicle. They discovered seven small bags of heroin hidden behind the front seat.

While he was being booked at the Lynn Police Department, Diaz’ cell phone rang several times. After “four or five” calls came in from different numbers within approximately twenty minutes, different officers at the station answered the phone, obviously acting as though they were the phone’s owner. One officer claimed, that a female caller say, “I’ll take three.”,at which Diaz yelled out “I’m at the police station.” A separate officer answered another call and spoke with a man who identified himself as “Mike.” According to this officer, this caller made “statements indicating an interest in buying drugs.” Aside from the possession charge on the heroin located in his truck, as a result of these phone calls, the defendant was charged additionally with “Intent to distribute,” which is an even more serious Massachusetts drug offense. Prosecutors introduced evidence of these calls in support of the “intent to distribute drugs” charge. Diaz’ defense attorney objected, filing what is called a “Motion to Suppress.”

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In my previous post, I discussed a recent Massachusetts Supreme Judicial Court (SJC) ruling, concerning the admissibility of jail inmates’ recorded phone conversations. More accurately put, the decision concerns not so much the admissibility of these recordings in and of themselves, but in how the recordings must be obtained by prosecutors, before the recordings will be allowed as admissible. The court’s unanimous decision ruled that in prosecutors unilaterally drafting and presenting this subpoena to jail officials (a sheriff in this case,) and in obtaining these recordings in this manner without first obtaining a judge’s approval, prosecutors violated the Massachusetts Rules of Criminal Procedure by not obtaining prior court approval for the subpoena. Justice Margot Botsford, writing for the court, said that the requirement to seek prior court approval for pretrial subpoenas “seems especially appropriate in a case like this one, where the information sought recordings of the defendant’s telephone conversations are at least arguably confidential in some sense, whether entitled to constitutional protection or not.” The high court referred the case back to Middlesex Superior Court for a hearing to determine whether Odgren’s constitutional rights were violated in the first place, by the initial issuance of the subpoena for the recordings.

A central issue here, is leveling the playing field between prosecutors and defense attorneys on the issuance of pre-trial subpoenas. As a Boston criminal defense lawyer, I can assure you that this issue is always lurking beneath the surface, in courtrooms across the state. The reason is that historically, District Attorneys’ offices in Massachusetts had always claimed that they had the authority to unilaterally issue subpoenas for the pretrial production of evidence in a criminal case, without having to obtain a judge’s prior approval – whereas defense attorneys were required to obtain judicial approval for such subpoenas. Doesn’t sound too fair, does it? Notwithstanding, Middlesex County District Attorney Gerry Leone responded to the SJC ruling, by saying that prosecutors will continue to seek recordings of inmates’ phone conversations. “This decision clarifies the process that the commonwealth must follow to obtain communications made by incarcerated defendants who have previously been informed that their calls are being recorded,” Leone said. “It continues to be our position that this and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls and are confident that we will prevail in these efforts.”

Odgren’s lawyer had argued that prosecutors were required to appear in front of a judge to request the tapes, and further that prosecutors needed to request specific days and times that were recorded, instead of large spans of recordings so they could try to “mine” the recordings for anything useful for the Commonwealth’s case. The court agreed, and as I read this opinion as a Norfolk County Massachusetts criminal defense attorney, it appears to me that the court may have left the door open to a future ruling that depriving a juvenile of any opportunity to communicate privately with his family about his case, might constitute a violation of constitutional rights. The other side to this argument, of course, (and not a completely illegitimate one,) is the fact that inmates, and those who are either visiting them personally and/or talking with them over the phone, are clearly informed beforehand that their conversations are being recorded.

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In the constant tug-of-war between Massachusetts prosecutors’ offices and criminal defense attorneys over admissible evidence, the Massachusetts Supreme Judicial Court (SJC) yesterday issued a ruling against prosecutors, and in favor of defendants who are incarcerated and awaiting trial.

The case concerns a shocking event that occurred in January 2007, at Lincoln-Sudbury Regional High School, which I’ve blogged about previously (actually, it was my very first post on this blog). The defendant was a then-16 year old high school student by the name of John Odgren, now a guest of the Commonwealth at the Middlesex Jail in Cambridge (he was previously held at a juvenile facility in Plymouth, until he turned age 17). On January 19 2007, Odgren is accused of luring a fellow student into a boys bathroom in the high school – a student he didn’t even know and had apparently no history with – and plunging a 13-inch carving knife into his heart five times, killing him in a savage bloodbath. When the attack was finished, Odgren openly admitted to bystanders that he killed the boy. Witnesses reported that he even helped to try and stop the victim’s bleeding. His attorney does not dispute that Odgren committed this murder. His defense will be based on a legal principle known as “Lack of Criminal Responsibility,” which essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. Reportedly, this defense will be based on Odgren’s assertion that he suffers from “Asperberger’s Syndrome” – a type of autism that can allegedly cause uncontrolled, violent behavior.

Prosecutors aren’t buying this claim, and to prove that Odgren does not suffer from any such mental disorder, Middlesex County District Attorney Gerald Leone’s office tried to obtain tape recordings of Odgren’s phone calls to family and friends outside the jail, as well as recordings of his conversations with visitors inside the jail (visitors are separated from inmates by a glass pane, and the inmate must communicate with such visitors through a phone). Inmates and visitors are advised in writing that all such conversations will be tape-recorded. The District Attorney wanted tapes of Odgren’s conversations, presumably to use them as evidence at trial to try to prove that he relates in a perfectly normal manner to other people – that he does not suffer from a mental disease or defect. If a jury were to hear recordings of conversations that Odgren has had with friends, family and visitors while in jail – in which he displayed no discernible evidence of a failure to understand his actions or exhibited no other evidence of mental illness – that would present a formidable problem for the defense.

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The Massachusetts Supreme Judicial Court (SJC) keeps churning out some interesting decisions, this one on the subject of the privacy, or lack thereof, that inmates and detainees in Massachusetts prisons can expect in their telephone conversations.

In a 4-3 ruling, the SJC ruled earlier this month that both prison inmates, and detainees (persons who have been arrested but not yet tried,) have “no objectively reasonable expectation of privacy” in their phone conversations. The ruling means that prosecutors and grand juries may access the recordings of those phone calls. The ruling applies to all kinds of detainees and inmates, from those accused of assault and battery to those convicted of sexual assault, rape and drug offenses.

The majority opinion, written by Justice Roderick L. Ireland, ruled that due to the fact that inmates and detainees are informed when they are first incarcerated that their calls are being recorded, “no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.” The decision affirms a contempt order issued previously against Suffolk County Sheriff Andrea Cabral by Suffolk Superior Court Judge Thomas E. Connolly. Cabral had previously declined to provide a grand jury with telephone recordings of a particular pretrial detainee, even though she had received a subpoena for them. According to the decision, Cabral supported turning over the tapes to the grand jury, but was concerned that an unrelated Superior Court decision “called into question the propriety of compliance with grand jury subpoenas seeking recordings of pretrial detainees’ and inmates’ telephone calls.” It was through her act of refusing to turn over the calls, that she sought a clarifying opinion from the SJC. And she got it.

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Striking down a city ordinance that I am sure was well-meaning and not malignant in its intent, the Massachusetts Supreme Judicial Court (SJC) yesterday ruled unconstitutional a city of Lowell ordinance making it a crime of youths under the age of 17 to be on city streets after 11:00 PM unless accompanied by an adult.

This case was a classic civil liberties challenge to government oversight of public conduct that, in itself, is benign. The municipal ordinance was passed by the city of Lowell in 1994, after that city was wracked by years of youthful violence and youth gang activity. Many such crimes involved Massachusetts drug offenses, including murder. In fact, only two months prior to passage of the ordinance, a 16-year-old was beaten to death in a gang-related slaying. The curfew banned persons under the age of 17 from being on the city’s streets unless accompanied by a parent or a guardian. The law provided several exceptions, including for youths who held night-time jobs, were on the sidewalk next to their homes, or were participating in certain recreational or religious activities. Individuals who were convicted of violating the curfew could be fined up to $300. They could also be deemed a delinquent and placed on probation. If they violated the terms of their probation, the law stated that they could be committed to the custody of the Department of Youth Services (DYS) until the age of 18.

For the years 1998 through 2002, city police arrested and arraigned an average of 60 juveniles a year for criminal violations of the curfew, according to statistics provided by the Asian American Legal Defense and Education Fund, an organization that helped support the legal challenge that overturned this law. That averages to about 12 arrests per year, or one per month. It should be noted that the Asian American Legal Defense and Education Fund became involved in this issue, due to the large concentration of Cambodian youths and families living in Lowell. Lowell Police have asserted for years that Cambodian youth gangs are numerous and dangerous in Lowell, and the facts have supported that claim. Cecilia Chen, a lawyer for the Asian American Legal Defense Fund, commented that the curfew upset Lowell’s large Cambodian community and claimed that police in that city engaged in racial profiling. “It assumes that youth are up to no good by simply being out at night,’‘ she said.

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