Criminal Defense

Massachusetts Legislators Should Be Wary of Criminalizing “Rape by Deception”

Published on: July 29, 2016 | by Ruth O'Meara-Costello

Dr. Roger Ian Hardy, a Massachusetts fertility specialist, was a recent beneficiary of the Massachusetts definition of rape, as “sexual intercourse with another compelled by force and against the victim’s will or compelled by threat of bodily injury.” Dr. Hardy has been accused of molesting multiple female patients during gynecological exams and procedures, under the guise of providing medical treatment. As horrifying as the allegations are, the Middlesex County District Attorney has stated that no charges will be brought, due to what the Boston Globe calls an “apparent gap” in the law. At least as to the crime of rape, that conclusion is probably legally correct—but legislators should be careful, if they seek to close that gap, not to create deeper problems by sweeping all sex that results from any form of deception into criminal conduct.

Massachusetts courts have held that obtaining sex through fraud is not rape at least since 1959, when the Supreme Judicial Court decided Commonwealth v. Goldenberg. Goldenberg, another doctor, had sex with a patient who came to him for an abortion, claiming that the sex was part of the procedure. The Court held that he hadn’t raped her, because he hadn’t used force–she consented to the act, although under false premises. If Goldenberg were the only case to that effect, I suspect the District Attorney here would prosecute Dr. Hardy and argue that its holding is outdated, and that in view of the law’s ongoing evolution in this area the Supreme Judicial Court should overrule it. But in 2007, in Suliveres v. Commonwealth, the SJC upheld Goldenberg (in a case in which a man pretended to be his twin brother in order to have sex with the brother’s girlfriend) and said that the legislature had ample time to act to change the law if it disagreed with the result in that case; because it hasn’t acted, the law stays the same. These cases certainly foreclose a successful prosecution for rape in Dr. Hardy’s case. (That said, I find it surprising that the District Attorney has not charged him with indecent assault and battery, which has different elements, does not require force, and arguably could apply.)

The Use of Snapchat, Even Under More Innocent Circumstances, May Have Serious Criminal or Civil Implications

Published on: July 20, 2016 | by Monica Shah

This week, two Massachusetts teenagers were convicted of sexually assaulting a heavily intoxicated 16-year old girl. Another teenager had videotaped the incident and disseminated the videos on Snapchat, the hugely popular social media app. The main evidence in the case came from another teenage girl who was not present at the scene but had received snapchat videos showing the victim naked, “almost in a headlock,” being fondled, kissed, or forced to perform sex acts, and slurring the word “stop.” Although Snapchat automatically deletes video and images after they are viewed, the witness was able to preserve the images by saving screenshots of them on her phone. The defense presented no witnesses, and the jury was out for less than a day before convicting the defendants on the charges, which could result in a sentence of as much as twenty years in prison. The male teenager who took the videos, but did not participate in the sexual assault, had previously pled guilty to related charges.

The sexual assault of an incapacitated minor, whether documented by social media or not, is obviously an egregious crime with serious penalties, and the videotaping or photographing of a sexual assault of a minor, also violates a number of criminal laws. However, Snapchat users, who are primarily in their teens or early twenties, may not realize that seemingly mundane photos or videos capturing everyday moments could also rise to the level of a crime or violate college or university policies against sexual harassment.

Massachusetts Senate Passes Juvenile Justice Reform Bill, Which Would Enable Expungement of Juvenile Convictions

Published on: July 13, 2016 | by David Russcol

Yesterday, the State Senate passed a bill that would reform several different aspects of the juvenile justice system, with the goal of reducing children’s interactions with the court system, making those interactions more humane, and enabling them to move on from youthful mistakes and become productive adult members of society. The bill, S. 2417, would have to be passed by the State House in the next few weeks and get the Governor’s approval to become law, but it includes a number of welcome reforms.

One of the most consequential changes, which commentators have called for repeatedly, is to allow records of juvenile crimes to be expunged. Current law in Massachusetts permits some criminal records, including juvenile records, to be sealed after a waiting period of several years, meaning that the public and most employers would not be able to access those records. However, law enforcement, courts, and schools can still access sealed records for certain purposes. What is currently nearly nonexistent under Massachusetts law, in contrast, is expungement – total deletion of a record so that nobody would ever know that it existed, not employers, not law enforcement, and not the courts. Many states automatically expunge juvenile court records once an individual reaches a certain age, so that bad decisions during adolescence do not follow children into adulthood and prevent them from being admitted to schools or getting jobs. These states recognize that it is counterproductive to maintain the stigma of a criminal record on individuals who have learned from their mistakes and are trying to get back on the right track. People who try and fail to make a living by legitimate means may resort to illegal conduct to make ends meet.

New Massachusetts Criminal Sentencing Best Practices Seek to Reduce Over-Incarceration

Published on: June 7, 2016 | by Ruth O'Meara-Costello

In May 2016, the departments of the Massachusetts Trial Courts that handle criminal offenses issued recommended protocols and best practices designed to assist judges to impose appropriate but not overly punitive criminal sentences. The reports emerging from the working groups of the District Courts and the Boston Municipal Court and the Superior Court explicitly share the goal of reducing over-incarceration while making use of the social science evidence available regarding which sentences (particularly including conditions of probation) are most likely to successfully prevent recidivism.

I focus here on the detailed Superior Court Report (“Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing”), which sets forth principles intended to guide judges in imposing sentence. Many are uncontroversial, such as that judges should impose sentences consistent with goals including “deterrence, public protection, retribution, and rehabilitation.” Other key protocols set forth in the Report are more interesting, and at least one is fairly controversial.

Like the Cosby Case, Massachusetts SJC Decision in Commonwealth v. Celester Illustrates When to Invoke the Fifth Amendment

Published on: March 7, 2016 | by Ruth O'Meara-Costello

In a new case, Commonwealth v. Celester, the Massachusetts Supreme Judicial Court emphasizes how important it is for defendants to be informed of and advised regarding their right to remain silent, holding that it was ineffective for an attorney not to advise his client to invoke his Fifth Amendment right when questioned by police. The decision is legally significant in the scope that it gives to the right to effective advice of counsel, but it also illustrates what good criminal defense lawyers already know about the importance of the Fifth Amendment—a lesson that Bill Cosby would have benefited from when giving a deposition in 2005.

In most criminal cases, most defense lawyers advise their clients not to give statements to the police. This is common, often essential, advice that we give to the innocent as well as to the guilty; someone who will have to defend him or herself at trial is almost always better off not unnecessarily sharing information with prosecutors in advance. In criminal trials, the choices to invoke the Fifth Amendment and not answer questions from the police, or to remain silent at trial, cannot be held against a defendant, and so there is often little downside in taking the Fifth, particularly in interrogation by police.

An Update on the Law Concerning Campus Sexual Assault

Published on: January 19, 2016 | by David Russcol

Over a year ago, I published a blog post describing the unfair processes used by many schools to deal with complaints of sexual assault and harassment, and compared it to the criminal justice system. As I wrote then, the Department of Education (DOE) Office of Civil Rights (OCR) has placed enormous pressure on colleges and universities under Title IX to take swift and decisive action against students accused of sexual assault, even though the stacked procedures and low standard of proof make it likely that many innocent students are being punished (often, suspended or expelled), with substantial damage to their reputations and future careers.

What has changed since then? For the most part, not very much. A different bureau of DOE, separate from OCR, did issue some regulations following amendments to the Clery Act and the Violence Against Women Act. The most noticeable impact of the regulations is that now, in cases involving sexual assault (but not necessarily misconduct short of sexual assault), schools must allow students to bring an attorney or other advisor of their choice to hearings and meetings in the disciplinary process. That is unquestionably a step forward. However, the regulations still permit schools to prevent counsel from taking an active role, and the standard if not universal practice is for attorneys to be able to attend but not participate, other than whispering or passing notes to the student.

Cosby Prosecution for Sexual Assault Shows Shift in Attitudes

Published on: December 31, 2015 | by Ruth O'Meara-Costello

Nearly 12 years after Bill Cosby allegedly drugged and sexually assaulted Andrea Constand, his arrest in Pennsylvania on a charge of aggravated indecent assault subjects him to the possibility of criminal penalties for the first time. One reason that the prosecution is happening now is simple—this is prosecutors’ last opportunity to charge Cosby before the statute of limitations expires. But in 2005, when memories and evidence were relatively fresh, prosecutors chose not to pursue charges. The change was undoubtedly prompted in part by the enormous number of women who have now accused Cosby of similar conduct, but may also indicate a more general shift in attitudes about rape and sexual assault. While it is too early to say whether it will break any new legal ground, the case is now taking place in a historical moment when questions about intoxication and consent to intoxication are hotly contested.

In 2005, then-Montgomery County District Attorney Bruce Castor declined to prosecute Cosby, citing “insufficient credible and admissible evidence.” With the exception of statements in depositions conducted in Constand’s civil lawsuit against Cosby, though, the bulk of the information contained in the Affidavit of Probable Cause supporting issuance of a warrant for Cosby’s arrest was known to authorities in 2005. Constand’s account is essentially that Cosby offered her pills to help her relax; that after she took the pills and drank some wine which Cosby pressed upon her she began experiencing blurred vision and difficulty speaking; and that Cosby then told her to lie down, assisted her to the couch, positioned himself behind her, and then touched her sexually, including penetrating her with his fingers. According to the affidavit, Cosby was questioned in 2005 about these allegations and agreed that he had given Constand pills when she complained of tension and inability to sleep (he claimed that they were Benedryl, which he agreed made him go to sleep right away when he took it); that he had not told her what the pills were; that he had engaged in sexual activity with her; and that when Constand’s mother confronted him about his actions he offered to pay for Constand to go to graduate school. Constand’s mother also spoke with police and stated that Cosby had told her that he gave Constand prescription pills and would mail her the name of the pills. Cosby nonetheless claimed that his activity with Constand was consensual, and prosecutors declined to charge him.

The “Cannibal Cop” Case: A Study in the Sweep of the Computer Fraud and Abuse Act

Published on: December 7, 2015 | by David Russcol

On December 3, 2015, a divided panel of the Second Circuit Court of Appeals cleared Gilberto Valle, sensationally dubbed the “Cannibal Cop” by some in the media, of the two charges against him, conspiracy to commit kidnapping and a violation of the Computer Fraud and Abuse Act (CFAA). Although the kidnapping charge is certainly more lurid, the CFAA charge has wider implications for online freedom of speech and action, and highlights a division in the courts between those that interpret the law as making many if not most Internet users into federal criminals, and those that take a narrower view of the CFAA.

According to the court’s opinion, Valle was a New York City police officer with a penchant for spending time late at night in unusual corners of the Internet. Specifically, he was constructing elaborate fantasies with other users on a fetish forum in which they would kidnap, assault, kill, and eat various women with whom Valle was acquainted. These fantasies sometimes included some real information about the women (including their real pictures and at least partial real names) but also false or outlandish information about them or Valle, such as Valle’s claim to have an isolated cabin in the woods with a human-sized oven. The extent to which some of these fantasies might have crossed over into serious agreements or plans was the basis of the kidnapping conspiracy charge.

Chism Murder Trial Raises Unsettling Questions Regarding Competency to Stand Trial

Published on: December 1, 2015 | by Ruth O'Meara-Costello

The ongoing trial of Philip Chism, which resumed yesterday following the Thanksgiving holiday, presents an unusual and disturbing set of issues in view of the terrible nature of the defendant’s actions, his extreme youth, and his apparently very serious mental illness. First, the events at issue are undeniably horrifying; Chism admittedly raped and killed his teacher, who was by all accounts a wonderful person and whose death was a tremendous loss. (Beyond that, I won’t recount the details here, but they have been set forth at length in the press.) Second, Chism, who was 14 years old when he killed his teacher, is being tried as an adult, which he undeniably is not and was not at the time of the crime; as Northeastern University law professor Daniel Medwed has written, treating children as adults is problematic regardless of how horrifying their actions are. And finally, Chism, who is now 16 years old, has exhibited signs of significant mental illness during his trial, repeatedly raising a question about whether he is actually competent to stand trial.

Chism’s trial was delayed so that his competency could be evaluated after he said during jury selection that he wished to be shot in the courtroom and claiming that voices told him not to trust his attorneys. The trial judge concluded, following that evaluation, that he was competent, and the case has moved forward. Chism is not currently contesting his competency to stand trial, despite a breakdown on the second day of his trial in which he refused to return to the courtroom, telling his defense counsel while shaking, twitching, and mumbling that he was “about to explode” and didn’t want to hurt anyone. The case thus sheds light on the difficult questions that arise when the criminal justice system must handle serious mental illness or disability.

Federal Court Invites Further Briefing on Whether the Death Penalty Is Constitutional

Published on: November 6, 2015 | by Emma Quinn-Judge

Last week, a Massachusetts federal trial court opened the door to a direct constitutional challenge to the death penalty. “The court remains concerned,” Judge Mark L. Wolf wrote, “about the potential rate of error in federal capital cases generally and the risk of the execution of the innocent particularly.” The court therefore invited defense counsel to submit a “future, focused presentation” on whether the rate of error renders the death penalty unconstitutional.

This invitation to challenge the death penalty came in United States v. Sampson, the long-running federal death penalty prosecution of Gary Lee Sampson. Sampson was indicted in 2001 after three separate incidents in which he murdered three individuals and stole or attempted to steal their cars. He was charged federally for carjacking resulting in the deaths of two of the individuals, those killed in Massachusetts. He pled guilty in 2003 and was subsequently sentenced to death by a federal jury. That sentence was vacated in 2011 due to juror misconduct, and Sampson is now awaiting a new penalty-phase trial to determine his sentence. Last year, Sampson filed twenty-six motions raising constitutional issues, and on October 28, 2015, the trial court issued an 89-page decision denying all of Sampson’s motions.