William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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In the past ten days or so, I’ve been asked by more than one person why accused “Craigslist Killer” Phillip Markoff has been charged with murder, and not a lesser crime, since there are not currently any witnesses who say they actually saw what happened. The formal charges against Markoff are murder of Julissa Brisman of New York City (on April 14 2009) and armed robbery and kidnapping of an additional victim on April 10, 2009 at the Westin Hotel in Boston’s high-end Copley Place. Is it not possible, some ask, that even if Markoff was the person who struggled with the murder victim, Julissa Brisman, and fired the gun that killed her, he may have been acting in some kind of self-defense? How can the police know enough to charge him with the most serious of homicide crimes, when they don’t have a witness?

The answer is that circumstantial evidence can still be used to charge a suspect with murder, even though there are no direct eyewitnesses to the killing. A suspect like Markoff is not at all prevented from advancing any particular defense he wishes (including self defense,) but that doesn’t mean a jury or judge would ever accept it as plausible. (Parenthetically, a defense invoking self-defense isn’t likely here, and would almost certainly fail, as the victim wasn’t armed, was shot three times and bludgeoned in the head. She weighed about 100 pounds; Markoff is over six feet tall and easily weighs 160-170 pounds.)

The earlier victim of kidnapping and armed robbery on April 10 2009 at the Westin hotel, later identified Markoff from hotel surveillance tapes. Police said they discovered forensic computer evidence showing that emails were sent from Markoff’s computer in his Quincy apartment to the victims, as well as forensic evidence of text messages sent from Markoff’s cell phone to the victims. Investigators also found plastic ties in the search of Markoff’s apartment, and several pair of women’s underwear that Markoff allegedly took from his victims. Notably, despite the discovery of this underwear, none of Markoff’s alleged victims were sexually assaulted. Police have alleged that Markoff booked appointments with prostitutes and “masseuses” who advertised on Craiglist, not to sexually assault them, but to rob them at gunpoint for cash to feed a gambling habit that he had. Investigators theorize that Markoff (logically) assumed that a) High-end, “private” prostitutes who book luxury hotel rooms for services likely carry large amounts of cash; b) In a locked hotel room, there would be no witnesses to the robberies; and c) No prostitute was going to fight a man with a gun, nor, more importantly to the plan, report the robbery to police. Logical enough thinking, if you’re a criminal. But police and prosecutors theorize that everything went wrong and ended in murder when Brisman tried to resist Markoff from robbing her and tying her up.

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I’ve dedicated several posts to this subject, because the problem of school bullying and student violence has become so pervasive. It is a reflection of the violence and vulgarity that pervades our society, in everything from video games such as “Grand Theft Auto,” which is filled with sickening and gratuitous violence, to television and movies, to the ubiquitous (and often dangerous) internet.

This growing infection of violence and brutality is being witnessed, of course, in a new generation of school children who are among the most abusive and disrespectful in decades. I’ve seen this first-hand. The origins of this behavior have produced the very problem of bullying in our schools that led to the death of Charles Walker, as well as so many other bullying victims in other schools across this country. The numbers are frightening. Google “School Bullying Victims Committing Suicide,” and you’ll be shocked.

Some suggested solutions:

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In my previous post on this subject, I wrote of how an 11 year-old boy in Springfield, Massachusetts, Charles Joseph Walker-Hoover, killed himself last week after suffering repeated taunts and bullying at the hands of fellow students at the New Charter Leadership School in Springfield, Massachusetts. According to the boy’s mother, Sirdeaner L. Walker, Carl had reported to her that students regularly beat, taunted and threatened him because they believed he was gay – even though, according to Carl’s mother, he was not gay. In what regrettably no longer comes as a shock, several of the students who threatened and bullied Carl were not just boys, but girls also. It’s been reported that shortly before young Walker committed suicide, a female classmate threatened to kill him because he acted too feminine. Probably suspecting she wasn’t feminine enough, she directed her aggression at him. So much for the old saying, “Girls are made of sugar and spice and everything nice.” Don’t buy it: Girls can be just as violent and just as vicious as any boy.

Investigations have been launched, and the expected denial by school officials of any wrongdoing, (in the form of negligence in the failure of school officials to aggressively respond to prior complaints by Carl’s mother), are all taking shape. People will wring their hands, shake their heads, and say “What a pity.” The media will report the story, and it will be over. Then what? What is to be done about this problem, to minimize the odds it will happen again? Why is it that we as adults feel entitled to be protected from assault and battery, violence and abuse, but when it happens in a schoolyard, it’s too often dismissed as “child’s play?” I’ve always suspected that as adults, we don’t want to aggressively address this problem with strong legislation providing criminal penalties for children, because there’s something about ourselves in this violent behavior, that we don’t like to see, or perhaps admit. There are more anti-bullying educational programs in our schools today than there were in previous generations, as there are more awareness programs about inappropriate sexual contact, and that is good. But we must now act to prevent an equally damaging type of abuse.

A new approach is required to effectively deal with this problem. First, in public and private schools seeking licensure by the state, there ought to exist mandatory educational programs not only about why bullying is bad, but how students should group together to stand up and protect students who are victims of bullying. It’s all well and good to teach students how to spot bullying, but then what? If students aren’t taught how to combat it, “recognizing” it is largely pointless: Reporting it afterward to teachers, while desirable, isn’t an effective response, for three reasons: 1) At that point, the bullying has already taken place; the victim of the bullying has already been harmed. 2) Teachers simply can’t be everywhere at all times, noticing every threatening gesture or assault that might take place; 3) Instruction on only “recognition” of bullying, doesn’t empower students to help stand up and help bullying victims when they are being assaulted. In fact, it almost makes the observer a secondary ‘victim’ – because he or she doesn’t know how to intercede.

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Something happened in our midst this past week; something that should strike at the core of every public school committee and private school system in Massachusetts, and which should resonate across the United States. It is something that should keep principals awake at night, and something that should keep teachers vigilant about each day in their classrooms. This time, the subject isn’t drugs, and it isn’t sex or teen pregnancy, as serious as those subjects are. It’s far more common, far more insidious, and tragically, far more “accepted,” or at least tolerated, by school systems across this country.

It’s bullying.

Yes, the cruel, vicious abuse that the youngest of human beings are capable of. Maybe that’s why society hasn’t addressed it adequately enough so far: We don’t like to admit that such cruelty and savagery can exist inside children, our children. But the human being, regardless of age, is capable of unspeakable cruelty, and oddly enough, the display of that cruelty can appear with far greater frequency when people are very young. (Who has not heard the phrase, “Children can be so cruel“?)

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In two previous posts on this subject, I wrote of how Middlesex County District Attorney Gerry Leone’s office has doggedly pursued a suspect in the unsolved murder of Dr. Linda Goudey, a Stoneham obstetrician who was found strangled to death in the trunk of her car in September of 1993. That suspect is one Richard Stryker, M.D., the former boyfriend of Dr. Goudey. While Stryker was always a prime suspect in Dr. Goudey’s death, authorities were never able to assemble enough evidence to formally charge Stryker with her murder. However, Dr. Goudey’s family, led by her mother Marguerite Rafuse, brought a civil case against Stryker, seeking to hold him civilly and financially responsible for the death of Dr. Goudey. (For a refresher on how that legal mechanism works, see my last post on this subject.) Goudey’s family won that civil case, and secured a $15 million judgment against Stryker.

In response, Stryker hatched a plot to escape that $15 million jury award. His plan centered on securing a new trial on that civil judgment by producing a “new” witness who would testify that Dr. Goudey was last seen alive on the night of her death with another man, not with Stryker. Stryker devised the alibi scheme with a patient and friend of his, Woburn handyman Richard Chambers and with another man, Craig Pizzano. If the plan worked, Stryker was to pay both men over $100,000.00. But Pizzano eventually cracked, and admitted his role in the plan to authorities. That led the whole plot to unravel, and Stryker was arrested and charged last July with multiple counts of conspiracy to commit perjury. After spending several weeks being held in jail, Chambers then also broke down and admitted his involvement in the scheme. In exchange for his cooperation in this case, Chambers will likely avoid prison time.

Based on the summation of these developments, Stryker today pleaded guilty to multiple counts of perjury, subornation of perjury, and conspiracy charges in connection with his attempt to escape the $15 million judgment the Rafuse family secured against him. He was sentenced by Middlesex Superior Court Judge Diane Kottmyer to four years and one day in State Prison followed by fours years’ probation. Conditions of his probation include that Stryker pay restitution to the family of Goudey for their costs associated with the motion for new trial, and refrain from contacting the victims or any of the witnesses in the case. Commenting on the sentencing, Middlesex County District Attorney Gerry Leone said, “We were presented with a very interesting and large ball of yarn. The result of our unraveling that ball of yarn, were Timothy Stryker’s pleas of guilty today.” “Tim Stryker orchestrated the most serious of frauds upon the court … and attempted to frustrate our criminal investigation into the murder of Dr. Goudey. Her family has had to live with the anguish of Linda’s death for more than 15 years.” Goudey’s mother Marguerite Rafuse, 80 years old now, issued a statement read aloud to the court. In the statement she said the perjury scheme was a “diabolical” plan, and called Stryker, “unfeeling, calculating, manipulative and abusive.” “I am sure part of the reason for the plan of lies was retaliation in anger against me for the civil judgment,” wrote Rafuse.

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File this under: “It Doesn’t Just Happen At Abu Ghraib”

The vast majority of Massachusetts Police Departments do a good job of enforcing the laws that the rest of us are required to obey, as well as observing the laws they are required to obey when it comes to arresting and detaining someone. Most don’t abuse persons who have been arrested and are being held in custody pending bail or arraignment. That being said, it’s not impossible that a few police officers or police departments can break the law, or cross ethical and moral lines when it comes to arrest and detention of criminal suspects.

So in that vein, imagine that you are arrested by a police officer, who seems to think his badge gives him the right to be abusive, verbally or physically. Maybe he or she is in a bad mood; maybe he or she doesn’t like the way you look. Imagine that the officer makes this clear to you through his or her attitude, and the next thing you know, you’re arrested for “disturbing the peace” and “resisting arrest”. At the police station, you’re forcefully stripped of your clothes, and thrown into a cell, naked, along with another prisoner who is clothed, and just so happens to be held for intent to murder. The justification that is given for this at the time, and later, is that you ‘were violent with the arresting officers and thought to be a suicide risk’. You are humiliated, frightened, and psychologically abused.

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Occasionally, I’m asked by other criminal defense lawyers if I have any hesitation writing about or publicly approving of “prosecution wins” – cases where the defendant was found guilty. As a Massachusetts criminal defense attormey, the answer is no, I don’t: I don’t at all believe that truly guilty persons, or persons who are proven to be an obvious threat to public safety, should not be incarcerated. I don’t want my safety, my wife’s safety, or the safety of those whom I care about, to be threatened by a clearly dangerous person who should inarguably be off the streets. What I do want, and what I firmly believe in, is due process and the right to be defended zealously in court, prior to any determination of guilt. But if someone has been proven to be an obvious and serious threat to public safety, I have no problem congratulating the prosecution on a conviction, and for putting a dangerous person behind bars.

So it’s in that vein, that I offer my recognition to the Bristol County District Attorney’s office, in the conviction earlier this week of one Corey Deen Saunders. Saunders, an especially twisted human being, is a previously convicted sex offender who raped a 6 year old boy in the New Bedford Free Public Library last year. Yes, that’s right – in a public library, just feet away from his mother, who was using a library computer. Saunders was sentenced yesterday to life in prison by a Massachusetts Superior Court judge who ruled that only a lengthy jail sentence could prevent Saunders from harming more children.

In his decision, Superior Court Judge Robert J. Kane wrote, “We now know that Saunders is not amenable to rehabilitation,” adding that “the history of Saunders’ constant abuse of children . . . and his insincerity silence any claims that Saunders will effectively control his sexual urges.” He had been on probation for a previous conviction of trying to rape a 7-year-old, and was supposed to “stay away” from children. (How, exactly, a condition like that is supposed to be effectively policed, is still beyond me and many other legal experts. Electronic monitoring bracelets can presently only monitor where someone is, not what someone’s doing.) Saunders had been released from prison earlier after he served a four-year prison term, in spite of prosecutors’ requests to keep him jailed, and in spite of their arguments that he was still a danger to children. He is presently serving a five-year prison sentence for violating probation for that earlier conviction. When that sentence is completed, Saunders will remain an esteemed guest of the Massachusetts state prison system for at least fifteen years, when he will be eligible for parole. The reason he will be eligible for parole: While he was sentenced to a life term, only certain crimes, such a Murder In the First Degree, exclude any possibility of parole.

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Ten years ago this summer, a horrifying story came to pass on Cape Cod. It represented the penultimate fear of anyone whose car has ever broken down, and is seeking help. A young woman named Melissa Gosule was driving on Cape Cod in July 1999 near the Cape Cod Canal when her car broke down. She accepted a ride from a man named Michael Gentile – who apparently seemed unthreatening to her – and was never again seen alive. Eight days later, her body was found in a shallow grave. Gentile is serving a life sentence for the crime. As horrific as that story is, it gets worse: Gentile had been convicted of at least 20 previous violent crimes, and was walking free at the time he abducted and killed Ms. Gosule.

A legislative bill now dubbed “Melissa’s Bill”, after Ms. Gosule, has now been introduced into the Massachusetts Legislature that that would create a “three strikes” form of punishment for habitual violent offenders. A similar bill was filed in previous legislative sessions, but lawmakers deemed the penalties too severe. Prosecutors supporting the present bill, and state Representative Brad Hill of Ipswich, who sponsored the bill, said the new version has been revised to make exceptions for nonviolent offenders, thus making passage more likely. Middlesex County District Attorney Gerard T. Leone Jr. has taken the prosecutorial lead in promoting this bill, commenting that “This new version of ‘Melissa’s Bill,’ while addressing previous concerns, is consistent with its mission to assure greater transparency, accountability, and truth in sentencing for dangerous repeat offenders.” We have also closed additional legal loopholes that would have ensured that Melissa’s murderer, whose 27 convictions resulted in a mere two years served in prison, would not have been free to abduct and kill Melissa.”

Leone said the new bill requires that defendants who are convicted of a third felony in three separate offenses be punished with the maximum sentence allowed for the third crime, as opposed to a mandatory life sentence, as the previous bill called for. Another major problem with the prior iteration, was that misdemeanor offenses were counted in the “three strikes” language. In my professional opinion as a Massachusetts criminal defense attorney, that provision was overly-broad and too severe. The new bill applies only to those who have committed serious felonies; proponents also argue that this new iteration is fairer because it would not depend on judges’ previous sentences, but rather on the specific crimes committed.

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Here’s an interesting decision handed down from the Massachusetts Appeals Court recently. Seems a Barnstable District Court judge overstepped his authority in 2007 when he unilaterally upgraded, or beefed up, the charges that the Commonwealth had tried a defendant on involving a 2006 motor vehicle fatality on Cape Cod. The Cape and Island District Attorney’s office had charged the defendant, Gerard Williams, of Cotuit, with vehicular homicide while operating under the influence of alcohol, and also charged him with a separate count of operating a motor vehicle to endanger. After a jury-waived bench trial before Barnstable District Court judge Don Carpenter, the judge found the defendant guilty on the charge of operating a motor vehicle to endanger in the death of William Armstrong, 43, of Hyannis.

Armstrong was killed when his motorcycle collided with Williams’ car on Route 28 in West Yarmouth. On the more serious charge of vehicular homicide while operating under the influence of alcohol, the judge found Williams not guilty. This was chiefly due to the fact that the defendant’s .079 blood alcohol level – a fraction below the .08 legal limit for driving, as well as his four failed field sobriety tests – were ruled not admissible as evidence.

Citing his opinion that the defendant drove negligently in causing the accident, the judge decided to add a new, separate offense of negligent motor vehicle homicide, to the underlying guilty finding of operating to endanger conviction, and sentenced the defendant based on that new charge and finding. One reason that’s so important? On the “operating to endanger conviction,” a drivers’ license is typically suspended 60 days. Upon a conviction of motor vehicle homicide, drivers’ licenses are suspended for 15 years.

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When will this end?

Recently, a handful of cities and towns in Massachusetts have begun efforts to develop municipal ordinances and bylaws that would punish public possession of an ounce or less of marijuana, above and beyond the state civil fines that were approved in the November 2008 ballot measure that decriminalized possession of an ounce or less of pot. That measure (Question 2 on the November 2008 ballot) was overwhelmingly approved by state voters, by a 2 to 1 margin. That measure made possession of an ounce or less of pot a civil offense punishable by a $100 fine, with minors required to attend a drug awareness program. It also requires forfeiture of the pot found on the person. Yet some opponents, including law enforcement officials, claim the law is “poorly written” and unenforceable. I find this claim to be specious at best, and far more likely generated by the law enforcement community’s resentment that the public took away some of the powers that they had before pot was decriminalized through this ballot initiative. But the result has been that some cities and towns, with the encouragement of Police Departments, have begun to craft their own bylaws and ordinances to add their own, local, fines for public possession of an ounce or less of pot. Defenders of the new state law fear these efforts might presage a wider effort toward recriminalization. I don’t blame them.

As a Massachusetts drug offenses defense attorney, it was in my economic and professional interest to oppose the ballot initiative decriminalizing pot. But as a lawyer, a former Special Assistant District Attorney and taxpayer, I can’t support arguments to keep this a criminal offense. Tens of millions of dollars were wasted each year in this state, in the arrest and prosecution of a victimless “crime” that many respected authorities consider to be of an extremely minor nature. The new law retains all the punishments for driving while under the influence of pot, as it did before, and as now justifiably apply to driving under the influence of alcohol or any other drug. The new law retains all the previous penalties and punishments for trafficking and distributing large amounts of the drug as it did before. The new law requires minors to attend a drug awareness program and requires anyone fined, to forfeit the pot they might have on their person. A national organization of present and former law enforcement professionals, Law Enforcement Against Prohibition (LEAP), publicly supports decriminalization of an ounce or less of pot, publicly testifying that hundreds of millions of taxpayer dollars are wasted each year, on an offense that is extremely minor.

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