William D. Kickham
William D. Kickham
William D. Kickham
William D. Kickham
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Now that voters in Massachusetts have overwhelmingly approved (by a 65% to 35% margin) last week’s November 4, 2008 statewide ballot initiative, it falls to the state’s chief prosecutorial and law enforcement officials to “iron out” the new procedures and legal protocols necessary to shift away from the decades-old criminal law enforcement scheme for marijuana possession. Presently, that criminal statute provides for maximum penalties for up to six months in jail and a $500.00 fine, for possession of any amount of marijuana. The new law will decriminalize possession of one ounce or less of pot, and instead provide for a civil fine of $100.00 in its place. The law presumes that a person found in possession of one ounce or less of marijuana has no intent to distribute (i.e., is not a dealer) and intends the substance for personal use only.

On the issue of decriminalizing possession of small amounts (one ounce or less) of marijuana, it seems that the public appears to have been ahead of the politicians here: All 11 of the state’s District Attorneys, the Massachusetts Chiefs of Police Association, Attorney General Martha Coakley, Governor Deval Patrick, a wide range of state legislators, and an equal complement of leading religious leaders, all spoke out actively in opposition to making possession of less than one ounce of pot a civil offense. (Notably, so too, editorially, did the Boston Globe.) Despite this, voters approved this measure by an almost 2-to-1 margin. Whether in agreement or disagreement with this ballot result, few responsible people can argue that the result isn’t a voter mandate. The approved ballot measure will become law 30 days after being presented to the Governor’s Council, which usually meets in late November or December. That means the new law will take effect probably in early January 2009. Until the date the new law takes effect, the present law governing possession of any amount of marijuana remains in effect.

People should understand several important points: First, the new law only partially decriminalizes possession of marijuana (one ounce or less,) and the new law isn’t quite as lenient as it seems: Anyone caught with an ounce or less of pot will be forced to forfeit the marijuana, as well as being assessed the civil fine of $100.00. (Exactly where this confiscate pot will end up, is anyone’s guess, notwithstanding regulations that I am sure will soon be developed.) In addition, anyone under the age of 18 caught with an ounce or less will not only have to forfeit the pot, but if they don’t complete a mandatory drug awareness program, the fine they face will be ten times the normal fine: $1,000.00.

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A cornerstone of American criminal law is that an accused is innocent until proven guilty. That’s a critical protection within our criminal justice system, and it distinguishes us from the systems that some other countries use. Notwithstanding this precept, it seems that some people, no matter how many times they see the guilty fall, think they can act with impunity to break all kinds of different laws. In my experience as a Massachusetts criminal defense attorney and legal commentator, this is most commonly seen in the areas of organized crime and politics (which some observers would say are not that far removed from each other).

In Massachusetts, we have once again seen the envelope of brazenness pushed to the limit, with the arrest and arraignment earlier this week of state senator Dianne Wilkerson, of Roxbury, Massachusetts. Sen. Wilkerson was charged with 23 separate counts of federal bribery charges, representing the culmination of an 18-month plus undercover investigation by FBI and federal law enforcement authorities. Federal authorities received information from an undercover informant in 2007 that Sen. Wilkerson was accepting bribes from business interests seeking favorable approval for a range of permit applications, including liquor licenses and real estate development approvals, from state and city officials.

What makes the charges against Sen. Wilkerson so challenging to the concept that everyone is presumed innocent until proven guilty, is the fact that FBI agents, posing as businessmen, wore concealed video cameras and microphones in their meetings and “dealings” with Sen. Wilkerson, and what is seen on these videos makes “brazen” seem mild by comparison. Sen. Wilkerson is seen on tape taking thousands of dollars at a time in cash bribes, in hand-to-hand delivery – at one point actually stuffing fistfuls of cash under her sweater, into her bra. Despite this overwhelming evidence in the form of video and audio tape, and informants ready to testify against her as well, Sen. Wilkerson insists that she is innocent of these charges.

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A little too much time has passed since my last post, so let’s resume where I previously left off. First, let’s look at the legal facts of this case. Of the 12 charges filed against Simpson, the most serious in terms of penalties are the charges for armed robbery and kidnapping. As at least one member of Simpson’s party was armed with a gun, that charge appears legally appropriate, as it hasn’t yet been shown that the property Simpson was seeking was, as he claims, legally his property. If that property were later proven to in fact belong to Simpson, it may be difficult for a jury to convict Simpson of “robbing” someone of property that they did not have “rightful possession” to. As to the kidnapping charge, I’d have to say – without at all being a Simpson apologist – that is quite a stretch, legally speaking.

Technically speaking, a charge of “kidnapping” (also sometimes spelled “kidnaping”) necessarily includes the act of either holding or transporting someone against their will by force or threat of force. A common legal definition is: “The taking of a person against his/her will (or from the control of a parent or guardian) from one place to another under circumstances in which the person so taken does not have freedom of movement, will, or decision through violence, force, threat or intimidation.” In Las Vegas, conviction on a kidnapping charge is punishable by five years to life in prison. A conviction of armed robbery carries a mandatory sentence of at least two years behind bars, and could bring as much as 30. Sentencing for Simpson has been set for Dec. 5. Obviously , the stakes are very high for Simpson.

“When they (Simpson and his party) went into that room and forced the victims to the far side of the room, pulling out guns and yelling, `Don’t let anybody out of here!’ – six very large people detaining these two victims in the room with the intent to take property through force or violence from them – that’s kidnapping,” prosecutor David Roger said.

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Apologies to my readers for my having not posted something for so long. I’ve been very busy lately with some demanding legal issues. Let’s turn the focus back to what’s current in the news of criminal law.

O.J. Simpson finds himself again behind bars. This time, football star and celebrity-in-exile was convicted of kidnapping, armed robbery and ten other charges for joining five men a year ago and storming into a room at a Las Vegas hotel-casino, where the group seized several game balls, plaques and photos allegedly belonging to Simpson. Prosecutors claimed two of the men with him were armed; one of those men said he brought the gun at Simpson’s direction. Simpson’s longtime friend and co-defendant, Clarence “C.J.” Stewart, 54, also was found guilty on all charges and taken into custody. From the beginning, Simpson and his lawyers argued the incident was not a robbery, but an attempt to reclaim mementos that had been stolen from him. He said he did not ask anyone to bring a weapon and did not see any guns during the incident.

Simpson’s defense attorney, Yale Galanter, tried to portray Simpson as a victim of shady characters who wanted to make money off his famous name, and of police officers who saw an opportunity to “get” Simpson and avenge his acquittal in the Nicole Simpson/Ron Goldman murders. Prosecutors said Simpson’s ownership of the memorabilia was irrelevant; that it was still a crime to try to take things by force, and that the charges filed against him were appropriate.

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In my previous post, I discussed the arrest last week on rape charges of a recent Massachusetts prison parolee, one Richard Flowers, released two months ago in July. While this year isn’t an election year in Massachusetts for statewide offices such as Governor, you can be assured that if it were, this case would be the “Willie Horton” of 2008. For readers who may not know, Willie Horton was a Massachusetts prison parolee who went on to kill someone after being paroled in 1988. The case was used by then-President George H.W. Bush, in the 1988 Presiential election race, as a centerpeice argument against voting for Massachusetts Governor Michael Dukakis, who came to embody charges of liberal prison parole policies.

Did the Parole Board make a mistake in this matter? Should Flowers’ application for parole have been granted? Critics of his release will probably argue that his release is an example of a system gone bad; that too many violent convicts are released on parole, when they should be kept in prison to serve their full sentence. In essence, that the corrections and parole system are too lax. But was that the case here? It doesn’t appear that way. To begin with, it needs to be understood that when anyone has been convicted and sentenced for a crime, that person cannot normally be held beyond the longest range of that sentence. For example, if the sentence is for 8 to 10 years in state prison, that convict cannot, under typical circumstances, be held for longer than ten years. Such prisoners cannot usually be held indefinitely. Secondly, predicting the behavior of any one individual, is often a complex process, taking into consideration a number of different factors, psychological assessments and behavioral history. Using all those tools, parole officials make the best decision they can, as human beings, to assess the likelihood of recidivism or future criminal behavior of the applicant. That is all anyone can do.

In this case, Flowers had served 12 of 12 to 15 years for his robbery conviction in 1995. In those 12 years, he received only a few minor disciplinary infractions. He had no history of violent behavior in prison. He had no history of sexual violence either in prison, or outside of prison. The Parole Board appeared to expended a considerable amount of time and reflection, between the time it first began reviewing Flowers’ application for parole in August 2007, and when the Board finally granted his release with the conditions that he wear an electronic monitoring bracelet, stay indoors from 10:00 PM to 6:00 AM, and report for mandatory alcohol and drug testing, in May 2008. Those conditions, in my opinion, were prudent and reasonable, given Flowers’ non-violent history for the previous 13 years in prison, as well as his criminal history preceding that prison sentence.

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An alleged rape and beating of a 25 year-old woman at Boston’s Back Bay Commuter Rail MBTA station is sure to raise the issue of releasing parole convicts sentenced for violent crimes, as well as raise questions of what, if anything, might be done in the future to predict violent behavior among parole applicants.

Richard Flowers, 48, of Roxbury, Massachusetts, was arrested Saturday night, September 6th and charged with assault and battery and rape. Police charge that Flowers approached a woman in a stairwell the Back Bay MBTA Commuter Rail station Friday night, September 5th, initially asking her for directions, then brandishing a gun and demanding money. When she told Flowers she hold only a few dollars, he allegedly dragged her to another stairwell, waving away witnesses who asked if everything was OK. According to the police report, when alone in the stairwell, Flowers ordered the victim to disrobe, then raped and beat her. The report states that after the attack, the victim was able to kick the gun that Flowers had placed on the floor during the attack, down a stairwell. As Flowers scrambled for the gun, the victim grabbed her dress and ran away screaming for help. By that time, witnesses who had earlier seen Flowers pulling the victim into a stairwell had already called 911, and police arrived shortly thereafter. The victim was able to provide police with a detailed description of her attacker, and based on that description, police arrested Flowers at his apartment on Saturday night, charging him with rape, and assault and battery.

The Massachusetts Parole Board and the Department of Correction will likely come under some fire for this incident, from various quarters, most likely victims’ rights groups. The central question: Was this predictable? Was Flowers released too early? Should his application for parole been more carefully screened? Could anything reasonably have been done to prevent this incident? Critics of parole in general, and of the Massachusetts Parole Board in particular, may believe there is much to criticize here, beginning with the fact that Flowers has a long criminal record, dating back to 1983. His offenses include a conviction of robbery in 1983, with a sentence of four to six years in state prison for that offense; a 1988 conviction for breaking and entering a motor vehicle with intent to commit a felony, for which he was sentenced to six to eight years. In 1994, he was charged with stealing audio equipment from a church in Tewksbury. In 1995, he was charged with robbery of a jewelry store in Cambridge, and was sentenced to 12 to 15 years in state prison.

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Continuing my discussion of Elliot Weinstein and Stephanie Page’s complaints of legal media analysts’ commentaries of the Entwistle trial, from my previous post:

Fact: On the day the verdict was delivered, talk radio was abuzz with news of the verdict, especially WRKO-680AM/Boston. Almost all callers to the Howie Carr Show (the flagship program on that station,) that day were in strong support of Entwistle’s conviction, and overwhelmingly critical and disparaging (to say the least) of the defense team. I called in on the air to defend the criminal justice system, and the performance of these two lawyers in particular, stressing that criminal defense lawyers are ethically bound to zealously defend their clients. This, too, apparently escaped notice by Weinstein or Page in their Massachusetts Lawyers Weekly, (“MLW”) interview of 7/14/08. On the evening that the verdict was delivered, while a guest on WBZ-AM 1030’s “Nightside With Dan Rea”, (a syndicated program broadcast in multiple states) I again defended these attorneys, advising listeners that constitutionally, the defense is never required to put on a case. This too seemed to escape notice or comment by Weinstein or Page.

Fact: On June 24 2008, I was asked by a Boston Herald reporter if I thought the fact that the jury had not yet returned a verdict, bode well for either the prosecution or defense. In that Boston Herald story published June 25, I indicated the jury could go either way, and stated: “They have a man’s life at stake. They hopefully will be methodical.” This, too, apparently escaped notice by both these attorneys. What didn’t escape their notice, however, was a piece in the Boston Herald the previous day, on June 24 – and that’s where things got interesting. In responding to a reporter’s question on whether I thought the defense’s strategy to not call Entwistle as a witness was a wise decision or not, I said that it was wise, and opined, “One of Neil Entwistle’s worst enemies in this trial has been has own mouth. He’s not insane, he’s just narcissistic.”

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In my previous post, I discussed how Neil Entwistle’s attorneys, Elliot Weinstein and Stephanie Page, had conducted an extensive sit-down post-trial interview with Massachusetts Lawyers’ Weekly, which appeared in the July 14 2008 edition of Massachusetts Lawyers Weekly. Weinstein and Page said several things in that interview, and I’d like to respond here with a few facts. By way of full disclosure, I also submitted a Letter to The Editor to Lawyers Weekly, which was published in the August 4 2008 edition of Massachusetts Lawyers Weekly, citing some of the same points I will mention below. (However, due to editorial restrictions at Lawyers Weekly, that letter was capped at 1500 words, preventing a broader and more detailed discussion of the facts.)

Herewith follow excerpts of some of the more interesting points in the July 14 2008 Lawyers Weekly interview, and my responses to each of those points (Note: “MLW” refers to Massachusetts Lawyers Weekly):

Weinstein/Page Assertions in MLW: Referring to media analysts, Mr. Weinstein states: “Their comments build upon a cynical view of the law, the courts and lawyers …Their views and opinions showed a total disregard and disrespect for the basic principles of what our criminal courts are all about.”

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Will the detritus from the Entwistle case never cease? An interesting thing happened on the way to summer last month. I haven’t yet talked about it here, but for some time I’ve wanted to. Here’s the background: The July 14 2008 edition of Massachusetts Lawyers Weekly, the paper of record for the legal profession in Massachusetts, featured a front page, above-the-fold story headlined “Post-Trial, Entwistle Team Fires Back At Lawyers Who Offered Commentary.” In that feature story, which was written from a sit-down interview with both Elliot Weinstein and Stephanie Page (Entwistle’s lawyers,) Weinstein and Page railed on about how fellow lawyers who served as media commentators (like me) essentially had no business doing so, and were seemingly aligned against them and their client in that sad and tragic case. In the Lawyers Weekly story, I was specifically mentioned among other legal media analysts, as being “shameful” and “uninformed” in my media analysis of this case.

Actually, the precise language used by Weinstein and Page in that story was even more histrionic than just those two words offered above. Excerpts of some of their comments will follow in a later post, but for the immediate, let me ask: Will these two lawyers ever cease complaining? It really is rather pathetic, in and of itself. Here are two talented criminal defense attorneys, who apparently felt (and may possibly still feel) the need to carry on like two professional victims. When I first developed this blog, I wanted it to be about more than reporting news and developments in Massachusetts criminal law and criminal practice, important as those functions are. I also wanted this blog to be an honest approach to both the theory and practice of criminal law, to peel back the complicated layers and show what really goes on in day-to-day practice. As much as possible, I don’t want to varnish things in this blog.

In that vein, that means admitting when things have gone wrong in a given situation – whether by me, my colleagues, or anyone else. It also means doing the best I can, in the best way I know how, and not looking for excuses or scapegoats if things don’t go my way. If I can do that, why can’t my colleagues Weinstein and Page? Why must they persist in whining and complaining when things here didn’t go their way? Why must they have pointed the finger of blame at others, effectively laying the cause for their defeat on other parties, instead of taking their licks, standing tall, and resolving to do the best they can with their appeal? Acting in the manner these two lawyers acted post-trial, not only diminishes their own reputations, it does not help the image of the average criminal defense attorney, either. I’m fully aware of how criminal defense attorneys can be perceived by many members of the general public, and very unfortunately, a lot of it isn’t flattering. Behavior like Weinstein’s and Page’ post trial behavior doesn’t help.

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In my last post, I talked about the Clark Rockefeller case, closing with the question of what, if any crimes Rockefeller might be charged with in this case.

Given the incredible, yanked-from-Hollywood story that seems to be this man’s life for the past thirty years, complete with multiple identities and con jobs throughout his long trail across the United States, it would seem to many people that he would face a long list of criminal charges. Now that the FBI, Los Angeles and Boston police investigators have all confirmed that “Clark Rockefeller” is in fact Christian Karl Gerhartsreiter, born in Germany, “Rockefeller” (I will continue to refer to him under this name until I verify FBI reports,) poses an appealing target for prosecutors, most importantly because he remains a ‘person of interest’ in the disappearance and suspected murders of Jonathan and Linda Sohus of San Marino, California in August 1985. The Sohus’ were Rockefeller’s landlords at the time. Shortly after the Sohus’ disappearance, Rockefeller had dug a large pit in the backyard of the Sohus’ property (where Rockefeller lived in the Sohus’ renovated garage.) At the time, Rockefeller told at least one person he had dug the pit due to “plumbing problems.” Nine years later, in 1994, the then owners of the property were excavating the backyard as part of work on an in-ground swimming pool, and workers discovered human remains (of a man) stuffed into a bag. The remains were never definitively identified.

So what happens now? Can Rockefeller be charged with the murder of at least Jonathan Sohus? That’s not as easily said as done. First, let me explain the charges Rockefeller can be, and is now, charged with in Massachusetts. At present, those charges are: 1) Felony parental kidnapping; 2) Assault; 3) Assault and battery with a dangerous weapon. These charges all stem from Rockefeller’s forcible abduction of his daughter Reigh from Boston Common in July, during a supervised custodial visit of his daughter with a social worker from the Massachusetts Department of Social Services. The most serious of those charges, the count for felony parental kidnapping, carries a penalty of up to twenty years in state prison. Rockefeller remains in custody in the Suffolk County House of Correction in Boston pending trial on those charges, so he isn’t going anywhere for the time being.

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