Category Archives: Legal

PATRIOTS’ DAY

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Dear Brookline Booksmith,

Thanks so much for inviting me to visit your wonderful independent bookstore to read and do a Q&A with fellow mystery novelist Peter Swanson. During the 1990s every time I published a Matt Jacob Novel, you invited me to speak. On top of which, after twenty years and my latest book about Matt Jacob (Ties That Blind), you invited me back again. I appreciate your generosity and love your store. I had intended to put up pictures and comments until I realized this column belonged to Patriots’ Day and not my personal accomplishments. (For those of you who might want to see a couple pictures, please visit my Facebook Authors page and, if so inclined, “like” the page.)

Patriots’ Day is a Massachusetts and Maine holiday commemorating the Revolutionary War battles of Lexington and Concord. Historically it had been celebrated on April 19th, but in 1969 it was changed to the third Monday of every April. This year both days coincide. (Perhaps an omen given the upcoming sentencing trial of the Boston Marathon bomber.)

I used to really enjoy the holiday. For a ton of years my friend Ed and I would go to Fenway Park and watch the Red Sox, who traditionally began their game at 11 AM. We’d hang there until around the 7th inning, (those days the cost for tickets made leaving early reasonable) then walk to our favorite vantage point to cheer on the Boston Marathon runners as they passed by.

I don’t know why, or even when, we stopped our annual pilgrimage. Long enough ago that I’d even stopped watching the winners cross the finish line on TV.

Patriots’ Day 2013 burst my complacency when two bombs exploded close to the Marathon’s finish line, killing at least three, and injuring or maiming hundreds more. Soon after, the Boston Police and Federal Agents linked the horror to the shooting of an M.I.T. security guard and the theft of an S.U.V., which was eventually spotted in Watertown, a city nearby Boston.

Police from Boston and neighboring towns, along with Federal Agents, converged upon the town and shot one of the suspects who was then killed when his brother (the other suspect) inadvertently ran him over in his attempt to escape. Eventually, this second suspect was seen in a boat placed in a yard behind a Watertown resident who informed the authorities.

A massive gunfight ensued in which the authorities fired over three hundred rounds, despite which the suspect lived, brought to a Federal trial, and recently (April 8th) the suspect, Dzhokhar Tsarnaev, was found guilty of 30 counts, including 17 that carry the death penalty.

In a previous column I wrote and condemned the abrogation of civil liberties imposed upon Boston and its surrounding towns during the entire manhunt. No need to rehash the matter, other than to say that my post found very few people who agreed with my positions.

I expect the same today as I advocate against the death penalty for Tsarnaev.

During the trial, prosecutors relentlessly used the death of eight-year-old Martin Richard (the youngest of those who died) to impress upon the jury the heinous and depraved nature of Tsarnaev’s actions—including submitting Martin’s burnt clothes into evidence. But this 17th of April, Martin’s parents wrote a public letter requesting that the Feds take the death penalty off the table in exchange for life imprisonment without parole and the relinquishment of all the defendant’s appeals. While I laud the humanity of that letter and fully appreciate their desire for “closure,” my reasons are quite different.

I believe the death penalty is nothing less than state sanctioned murder. And, in this particular situation, the “state” isn’t Massachusetts (a NO DEATH PENALTY STATE by law) but the federal government that overrode state law and tried Tsarnaev under federal laws which allow the possibility of execution.

Let me be absolutely clear. What the Tsarnaev brothers did was totally, reprehensible, unconscionable, and, to me, virtually incomprehensible. I was, and continue to be, repulsed by their actions, which make me stomach sick.

But so do hangings, electrocutions, firing squads, and lethal injections—no matter who does the deed, be it an individual, group, gang, or government.

I am in no way, shape, or form a religious person. But I do adhere to Thou Shalt Not Kill and no amount of lawyering or any circumstance other than defense of self, family, or another person (which even the “god” who said the above permits) can convince me that the words Thou Shalt Not Kill are anything other than what they mean. Killing an innocent or a guilty is flat out murder—whatever suit you dress it in.

For those who legitimately question the cost of housing and feeding murderers, in a recent conversation with a judge I was informed that studies have indicated the taxpayer’s share of the costs of appeals and “stays” of state sanctioned murder are even greater. (To say nothing about our burgeoning “for profit” prisons.)

And I haven’t even delved into the issue of whether a judge or jury gets it wrong—as Project Innocence has shown time and time again.

On this Patriots’ Day I think it important to really ask what kind of country we want to be patriots of.

SOMETHING DIFFERENT

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Typically this column consists of about 1000 words on topics I think are important or interesting. This week that’s not going to be the case. I was asked by Zena Denise Crenshaw, if I’d be willing to be interviewed about jury selection on a radio show called Crimes of the Century Radio By Black Talk Media Project which is part of Black Talk Radio Network.

Although I’ve haven’t done jury selections during the past two years, Zena (who is the program’s primary host) believed I’d have something to contribute to their series so I agreed. The show aired Thursday, November 22nd and was called The Tricky Business of Selecting and Winning over Juries.

The interview can be heard this week as a podcast at: http://crimesofthecenturyradio.blogspot.com/ on the right hand side of the page. The media player on that page gives a running time so if you want to stop then return to the program you’ll be able to pick up where you left off—if you feel like continuing to listen.

If you can’t get to it this week the interview will still be able to be heard at https://itunes.apple.com/us/podcast/crimes-of-the-century-radio/id741166176 and dated 11/22/13. This site also gives you the option of using Itunes which also has a running time indicator.

Despite too many “uhhs” and “ahhs,” I managed to stay pretty coherent. So, if you do tune in, thanks for your time.

HARRY K. HAS SOMETHING TO SAY

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(Once again legal columnist Harry K. has graced these pages with another insightful story. Thank you, Harry.)

Powerless, hopeless people sometimes overcompensate for those feelings with anger and rage the court system generally does not tolerate, let alone understand. I learned this from Juanita fairly early in my career of representing poor people accused of criminal activities.

Juanita took $400 worth of merchandise from Filene’s Basement. She admitted her guilt and was placed on probation with a sentence of 60 days in jail if she screwed up. It should have been easy, but for Juanita, it was anything but.

Just a month shy of finishing probation, Juanita was driving her jalopy out to a decidedly white part of Boston in order to braid a friend’s hair. A police officer saw her approaching the parking lot at a “high rate of speed.” He followed her, watched her legally park the car, and then pulled in behind. She was already halfway to her friend’s door when the officer stopped her to request a license and registration. Juanita’s temporary license was at her mother’s. She knew that being stopped without having it might be cause for a problem, so she asked the officer “What for?” in what was probably not a particularly respectful tone–if her voice in the retelling was any indication.

“You were going a little fast back there.”

The cop said Juanita shoved him. Juanita denied it. The cop said he tried to arrest her and she “flailed her arms” screaming all the while. Juanita denied it. The cop said it took two officers to arrest her and that she shoved the second officer too. Juanita denied it.

Juanita was unable to meet with me in advance of her probation violation hearing so we met in the hallway of the courthouse and talked for some time about what had occurred. In the course of our conversation I realized that there was a problem with dates. The police report of the incident said that Juanita shoved the officers on June 9, but the document giving her notice of the probation violation said that she had committed an assault and battery on a police officer on June 10. It turns out there was another police report for another incident on June 10. It involved the same cop and the same parking lot. Supposedly, Juanita had tried to run him down with her jalopy. She was not arrested or charged, but it could NOT have been a charge of assault and battery on a police officer as recited on the notice. So which was it? The notice said the right date but the wrong offense or, the right offense on the wrong date. These due process defects were going to be my reasons to request a continuance.

I started to explain my thinking but she went on and on about how she hadn’t done anything wrong. I told her I believed and understood her, but it was not something I needed to tell the judge at the hearing. I explained that I would ask for a dismissal, but we could really only hope for some more time (during which one hope, among others, would be that she would demonstrate good reasons for not being sent to jail for 60 days). Her back stiffened, her speech switched from play-by-play to color commentary about what had happened. She was especially mad because I was going to argue a legal point rather than telling the judge that she had done nothing wrong and was a good person.

Suddenly she said, “I don’t want you representing me no more. If you ain’t gonna tell the judge I didn’t do nothing wrong, I just don’t want you.” I apologized, realizing that enthusiasm for my own agenda had overshadowed my client’s need to be heard.

“Juanita, I’m sorry, I will tell the judge whatever you want me to, so long as it does not hurt your case.”

She had me practice what she wanted me to say in front of her. “No, no, you ain’t saying it right. You ain’t saying I didn’t do nothing wrong!”

To borrow a term from the police report, she flailed her arms. “You gotta tell ‘em that other charge (she had been charged with hitting a cop several years before) was bullshit and was dismissed.” I, though, didn’t think it should mentioned at all.

“Who ARE you, anyway? Are you my lawyer or what? I want you to tell ‘em that wasn’t nothing and I ain’t done nothing and this here is bullshit too! And you know what? I want another damn lawyer!”

I tried capitulation, cajoling, both to no avail.

Juanita shook her head and walked away waving dismissively, “Yeah, yeah.”

The cop arrived and Juanita approached him in the hall, hand on hip, head cocked to the side. “Did you say I hit you? DID you?” I told her not to speak to the officer. She said, “I’m just asking him a question, I can do THAT, can’t I?”

She had a point.

Her case was called and I moved to withdraw as her lawyer. The judge asked Juanita if that was what she wanted. She hesitated almost imperceptibly, but then said, “I don’t want HER no more, that’s for damn sure.”

A new attorney was appointed and the judge gave him a date to return for a hearing– just one week later. Juanita had apparently liked my plan of getting much more time, because she went ballistic. Her arms truly flailing now, she started yelling, “NO, NO, NO. I want another date. I have two kids. I can’t be here then, I need another fucking date man, this is more bullshit!”

The judge simply said, “Take her into custody.”

Juanita calmed slightly and said, “Ahh, what the fuck. Shit man, okay, okay.” Ramping up again and worried she might not be able to reach her new attorney from jail, Juanita yelled to the assembly, “Don’t I get no piece of paper or nothing? Fucking shit ass bullshit motherfuckers!”

My briefcase was packed and I headed for the door. I heard her shout “Raggedy ass BITCH!” I hoped she was yelling at her probation officer so I kept walking away chagrined, but grateful to Juanita for an important lesson learned. If I planned to remain in this line of work, I’d better learn to listen to my clients–even if their powerlessness speaks with rude profanity.

“The greatest oak was once a little nut who held its ground….”

AFTERMATH

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I honestly thought that last week’s post would serve as a transition to get me past the Boston bombings. But what has transpired here since the blasts simply can’t be ignored. Or, more precisely, I can’t ignore it.

When Dzhokhar A. Tsarnaev was in the hospital after his capture, our mayor was asked how Tsarnaev was doing medically. Mennino waved his hand and said, “Who cares?” Everybody laughed; in fact, his response became a joke around town. At the time I didn’t find it particularly funny, but didn’t think much about it. Two weeks later and I’m thinking about it a lot.

For the past week Boston and cities around Massachusetts have refused to provide space to bury Dzhokhar’s brother Tamerlan who died in a shootout with Boston police, the FBI, and ATF.

When I wrote last week’s column I never expected the story to disappear. Did expect a blame game which is, in fact, happening. Expected congressional hearings, expected the bombings would become, as they have, a political football.

What I didn’t expect was the downright ugly about Tamerlan’s burial.

I understand and appreciate the agony and anger of people about these hideous, tragic events. I learned firsthand how a mass murder affects those connected to it when I spent much of a summer investigating the Murrah Building bombing for a consortium of lawyers. Most of that time was spent with people who had lost loved ones or were injured by the blast. They all were injured by wounds that would never heal.

But when a state and its municipalities refuse to allow a burial of an alleged bomber, it makes me sick to my stomach. We’ve had no trouble scattering ashes or burying convicted assassins and mass murderers before. Timothy McVeigh’s ashes were spread in an undisclosed U.S. location. John Wilkes Booth’s body at Green Mount Cemetery, Baltimore, Maryland. Richard Speck cold-bloodedly slaughtered eight nurses and his ashes were spread in the U.S. “Nanny” Hazel Doss, who confessed to killing her four husbands, her mother, her sister, her grandson, her nephew and others, is buried at Oak Hill Memorial Park, McAlester, Oklahoma. Lee Harvey Oswald at the Rose Hill Memorial Burial Park in Fort Worth, Texas. Andrew Kehoe, who murdered 38 elementary school children, six adults, and injured at least 58 other people, was buried at Mount Rest Cemetery, Clinton County, Michigan.

The list is near endless, but I’ll only mention two more. Father John J. Geoghan molested more than 130 children and is buried at Holyhood Cemetery in Brookline, Massachusetts and the good old Boston Strangler, Albert DeSalvo, is buried at Puritan Lawn Memorial Park, Peabody, Massachusetts.  If our state can provide hallowed ground for these criminals…

So why does it matter if a state and municipalities refuse to allow a burial?

My friend Bill often tells me that I rush to defend the worst of our people. He’s not far wrong–though I don’t think he recognizes my compassion for victims. I believe the way a society handles the worst of the worst speaks to the moral fiber of that society. I’m vehemently opposed to state-sanctioned murder (disguised under the benign term capital punishment) for the same reason. It reflects a blood lust for vengeance–something that eats at the decency of our culture.

Earlier I used the word “alleged” to describe the dead Tamerlan. Do I doubt that he colluded to set off those horrific bombs? Not really, but frankly it doesn’t matter. What matters is a cornerstone of the best of our social character. Innocent until proven guilty has, yet again, taken a back seat to the worst of our being. Better to eliminate the protection of rights in the name of hatred and security than to hold those rights up as a beacon to who we are and want to be.

Worse, these eliminations are rapidly becoming the nature of our post 9/11 society. Gitmo, anyone? Islamophobia? Executions? Undeclared Martial Law? Hell, undeclared wars. These aren’t isolated actions, but part of a whole which is successfully shredding what’s left of our ethical and legal fiber. And the greed which permeates our economic life is taking care of the rest.

When I worked for a poor peoples’ criminal defense attorney, or served on juries, I was constantly struck by the number of times judges would remind and remind the jury that the defendant was absolutely presumed innocent, no matter the charge(s). And was always shocked (when on a jury) how often those words fell upon deaf ears.

Furthermore, if Tamerlan was guilty and murdered and hurt all those innocent people who will have to live with their injuries long after he rots in his grave, doesn’t he still deserve to have one? Just as the way a society treats its poor, its criminals, how it treats its dead also shines a bright light upon our humanity.

Only as rich as the poorest of the poor,
Only as free as a padlocked prison door… Phil Ochs

A HARRY K. POST

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As I approach a milestone birthday, I occasionally think about aging lawyers, especially those who have spent their careers representing poor criminal defendants.  Many of these lawyers cannot retire–some for financial reasons and some based on a compulsion to keep helping the poor.  Early in my career, I wrote about an elderly lawyer in an email to my mother.  Twenty years later, I realize that I was mean to old Abe Gray (not his real name), and what was then to me a comical situation is now an example of the resilience of experience and, yes, age.  Here is my email:

Abe Gray is a fixture in court.  A bit like the screw that holds down the tap on your faucet – he’s there but you don’t notice him until something goes wrong.  Monday, he got noticed.

Abe looks to be in his eighties and all of the old court officers say he’s been around forever.  He always wears a wrinkled suit with an old man’s obligatory dandruff.  Abe’s client was a stocky young black man charged with trespass and disorderly conduct who had to be told to remove his hat.  This admonition caused a guffaw from the young man; his guffaw only worsened the scolding from the judge who went on about decorum-this and respect-that before sending him back to his seat like a kid in the corner to wait a long time before she would have his case called again.

When the court recessed, Abe tried to explain his client’s behavior.  I may have attracted his attention because we’d made eye contact, a difficult thing given Abe’s permanent downward head bend.  About his client he said, “It was just a nervous laugh – he does that you know.”  I certainly didn’t, and was pretty sure that neither did Abe.  As our conversation continued, Abe insisted that I probably would not like being a lawyer for the poor very soon.  “But it beats sittin’ in ya office doin’ nuthin’ don’t it?” which he followed with a friendly punch in the arm, a hearty laugh, and a consequent bout of coughing that only years of smoking can cause.

When court reconvened, Abe and I ended up sitting next to each other.   A stern looking young lawyer whom I had seen run into the ladies’ room the day before to puke loudly into the sink (her stern expression was meant to mask an intense anxiety) sat on his other side. We were near the seats reserved for police officers.  Abe decided he wanted to do what court officers most often have to rebuke lawyers for – chat. And not just chat.  Abe wanted to talk about the police.

So there I am, trying to be decorous and show respect for the court, listening to Abe go on in the sort of loud voice the hard of hearing often think is a whisper, “the cops testiLIE, not testiFY” and how “THEY apparently can wear hats in the courtroom – look at that one over there – she’s got a baseball cap on just like my client’s!”  He actually pointed.  I was mortified. Some of the police were frowning in our direction.  I smiled meekly.  The stern looking puker turned a whiter shade of pale.  Mind you, women are allowed to wear hats in court; men are not, even policemen.

I crossed my leeward leg away from Abe, leaned forward, elbow on knee, chin in hand, and pretended I was fascinated by the proceedings.  He quieted.

About five minutes later, Abe’s client’s name was called.  The client approached the bar, hat in hand, eyes down.  Abe didn’t stand to address the court.  When an uncomfortable silence followed, the clerk announced the name of the defendant’s lawyer (it’s not unusual for a lawyer to be in the hallway or another courtroom – the clerk will say the lawyer’s name as a way of prompting help from the court officers in locating a lawyer).  Abe did not respond; the clerk scanned the courtroom and landed his gaze on us.  He repeated Abe’s name more loudly this time.  I couldn’t figure out why Abe still hadn’t stood. Maybe he was helping stern-face with something?  So I turned around.

Abe’s head was tilted uncharacteristically upwards.  His eyes were shut. His mouth wide open.  His arms were crossed over his chest.  Sleeping?  Dead?  God, I hoped not.  I poked his left elbow with my index finger and whispered, “Attorney Gray?”  No response.  I pressed all four fingers into his left arm twice and, a little louder said, “Attorney Gray.”  No response.  Now I was worried.  I returned his earlier punch three times to no effect other than tilting his torso towards stern-face and disrupting his dandruff.

By this time, everyone was staring at us: The judge, the clerk, the probation officers, the court officers, the police, Abe’s client, stern-face (who was leaning as far away from Abe as she could without pushing herself intimately onto the man next to her, an appalled expression on her face).  I’m not certain what inspired me, but I grabbed the middle finger of Abe’s closest hand and tugged three times as hard as I could without popping his arthritic joints and said again, “ATTORNEY GRAY!”

He snuffled awake, looked around a bit dazed, asked me, “Wha- what?”  “Your case” I said, inclining my head towards his hatless client.  He leapt to his feet with amazing agility, strode confidently to the microphone and said, “Attorney Gray for the defendant, your honor.  He then reviewed the entire case in the light most favorable to his client finishing his effective synopsis with “therefore I move to dismiss.”

Since I wrote this piece, Abe has passed away and, with his passing, I reflected on the experience.  When I was younger, I was concerned about Abe’s client and thought nothing of poking fun at what I perceived to be Abe’s decrepitude. Today, I admire that Abe demonstrated an uncanny ability to go from dreaming to eloquent advocacy, even though it took some prompting.  He fought for the poor his entire working life which deserves my respect.  I hope that by continuing to find humor in the experience I have not dishonored his memory.