Article Written by Attorney Patrick Noonan Published in Massachusetts Lawyers Weekly

Massachusetts lawyers weekly logoPublic Urination Laws in Massachusetts and Why They Need to be Changed

“Time to get a public urination statute on the books,” an article written by Massachusetts attorney, Patrick Noonan, was recently published by Massachusetts Lawyers Weekly (Vol. 45, Issue No.: 44, October 31, 2016).  The article discusses the way in which Massachusetts punishes the act of public urination under its Indecent Exposure statute, why this is a problem, and how Massachusetts should punish the act of public urination.

Excerpt:

Let’s say you’re in the middle of a four-hour round of golf. There are no public restrooms, so you go behind a tree to relieve yourself. Another golfer looking for a ball he sliced into the woods happens to see you peeing. Or let’s say you’re on a road trip traveling on the highway when Mother …

Read More at http://masslawyersweekly.com/2016/10/27/time-to-get-a-public-urination-statute-on-the-books/ (subscription required)

Patrick Noonan Defends Man Caught Jogging Without Pants (Fox 25 News Video)

Lawyer says lewd behavior charge is too much for man caught without pants

by: Robert Goulston Updated: Jun 7, 2016 – 7:25 PM


Also in the news about this case:

Is public nudity lewd is no one sees it? Hingham judge says no 

August 2, 2016 by Neal Simpson, The Patriot Ledger via The Enterprise.

Excerpt:  “The law requires that the person expose himself to a person – that there be a person present to see it,” Noonan told the Ledger. “What we have here is an inanimate object – a camera – and no human being there to see it.”  “Judge Bradley agreed…”  Read Article on the Web


Our Taunton defense attorneys can help you avoid jail time.CASE UPDATE / RESULTS

June 7, 2016
Commonwealth v. Allen Costa
Docket No.: 1658 CR 0507

OPEN & GROSS:  DISMISSED upon MOTION
OPEN & GROSS:  DISMISSED upon MOTION

A woman approached Hanover Police Officers at Forge Pond Park and reported two incidents where she observed a man walking on the trail and the man was naked from the waist down. The woman provided police with a physical description of the male suspect. The police placed a trail camera in the area where the witness reported seeing the male naked from the waist down. According to the police report, the camera showed a male party (matching the witness’s description) walking on the trail wearing no pants on two separate occasions on 03/28/16 and 03/30/16. Subsequently, police conducted a stakeout where they hid in the woods in the area where the male party was seen walking naked from the waist down. According to the police report, one officer observed a male party (later identified as the defendant) walking on the trail wearing no pants or underwear with his penis and testicles completely exposed and the male suspect was swinging his penis side to side with his right hand. The officers emerged from the woods and arrested the Defendant at gun point. At the police station, officers showed the defendant two pictures from the trail camera and the defendant acknowledged that he was the person depicted in the photos. The police charged the defendant with 3 counts of Open and Gross Lewdness. Two of the charges stemmed from the two separate occasions where the trail camera showed the defendant naked from the waist down on 03/28/16 and 03/30/16.

Result: Attorney Patrick J. Noonan filed a Motion to Dismiss the two counts that were based on the camera footage of 03/28/16 and 03/30/16. Attorney Noonan argued that the offense of Open and Gross Lewdness requires that the defendant “expose his genitals to one or more persons” and the law requires that the illegal conduct occur “in the presence of another person.” Attorney Noonan argued that the two charges should be dismissed because there were no human being(s) present to observe the illegal conduct. Attorney Noonan argued that the only witness to the alleged offenses on 03/28/16 and 03/30/16 was the trail camera (an inanimate object) and not a human being. The Judge agreed with Attorney Noonan’s argument and dismissed the two counts that were based on the camera footage.

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Attorney Patrick Noonan Helps College Student in High Profile Case Involving Young Girl Being Pushed Off Rooftop

About Our Clients’ Case

October 13, 2015
Commonwealth v. W.A.
Brockton District Court

KEEPING NOISY & DISORDERLY HOME: DISMISSED ON 05/16/16

Client, a 23-year-old senior college student, was charged with Keeping a Noisy and Disorderly Home in connection with an off-campus party in which more than 200 students attended. Police received noise complaints due to the loud noise from the party – as there was a DJ blasting music in the backyard. When police arrived, they observed a female dancing on the roof of the garage. Many of the party-goers were yelling for her to “jump.” Seconds later, a male student pushed the female off the roof and into the crowd. Police arrested the man who pushed the female off the roof. The incident of the male pushing the female student off the roof was captured on film. The case involving the male student pushing the female off the roof received a lot of publicity.
Our client was one of three college students that were named on the lease. My client had no criminal record. He was a standout wrestler in high school and college. He is expected to graduate with a degree in Physical Education and Coaching. Our client had never been arrested and never been involved with any problems in school. After the incident, he made plans to move out of the house to avoid any potential issues arising in the future.

Result: At a clerk’s hearing, Attorney Patrick J. Noonan persuaded the police prosecutor and the clerk-magistrate to hold the case open until his client graduates in the spring. Client does not have any criminal and will continue to have no criminal record, so long as he stays out of trouble until the spring. Client intends to become a wrestling coach.

News Related to this Case


Bridgewater student accused of pushing woman off roof during party. Fox (Boston), by August 31, 2015.  ExcerptBRIDGEWATER – (MyFoxBoston.com) – A woman is recovering after she was thrown off the roof during an off-campus house party at Bridgewater State College. Bridgewater Police said they were called to a home on Burrill Avenue just after midnight and found more than 200 people outside of the home partying. They said they saw a female dancing on the roof, then moments later a man walked up and pushed her off.


Woman pushed from roof during off-campus party at Bridgewater State University. By Alysha Palumbo and Marc Fortier, August 31, 2015. Excerpt: Police have arrested a Bridgewater State University student accused of pushing a female student off a roof during an off-campus party.  Bridgewater Police said Alexander Marquez, 20, of West Springfield, Massachusetts, was arrested at 12:36 a.m. on Monday after officers observed him pushing the woman off the roof onto a crowd of 200-plus students.

Woman pushed off roof in Bridgewater; man arrested. Channel 7 News, by Nicole Oliverio and Susan Tran, August 31, 2015. Excerpt: BRIDGEWATER, Mass. (WHDH) –Bridgewater Police arrested a man after they say he pushed a woman off a roof during a party near the campus of Bridgewater State University. Police were already at the scene to break up an off-campus party that more than 200 people had gathered at Sunday night. Students moved back into the school over the weekend.


Man charged with pushing woman off garage at Bridgewater State party.   Boston Globe, by Felicia Gans, August 31, 2015.  ExcerptA Bridgewater State University junior was being held on $5,000 cash bail Monday after he was charged with pushing another student from the roof of a garage at a house party early Monday.  Bridgewater police were already at the home on Burrill Avenue, called to respond to a disturbance just after midnight, authorities said, when 20-year-old Alexander Marquez allegedly came up behind the woman and pushed her off the roof into a crowd of partygoers, who had been yelling at the woman to “jump.”


Video shows man shoving woman off roof at Bridgewater partyPix11.com, by Jeremy Tanner, September 1, 2015.  ExcerptBRIDGEWATER, Mass. – Cellphones came out when a woman climbed onto a roof at a party Sunday night in Bridgeport, Massachusetts — and now prosecutors are using that footage after a man allegedly pushed the woman off as cameras recorded.


More Related News

You do have the right to remain silent

Attorney Patrick Noonan“You do have the right to remain silent,” written by Patrick J. Noonan, criminal defense attorney, was originally published in the Lawyers Journal (Vol. 20, No.: 10, June 2013), which examines a detainee’s right to remain silent during police interrogation in Massachusetts. 

Read on Mass. Bar Association Website  ||  More Publications by Patrick J. Noonan


The 5th Amendment Right to Remain SilientYou do have the right to remain silent

By Patrick J. Noonan

June 2013

In Berghuis v. Thompkins, 560 U.S. 370 (2010), Samuel Morris and Frederick France were shot outside a mall in Southfield, Michigan. Morris died of multiple gunshot wounds. France recovered from his injuries. The main suspect in the shooting was Van Chester Thompkins, who evaded capture and fled Michigan. Approximately one year later, Thompkins was arrested in Ohio. Two police officers from Southfield traveled to Ohio and interrogated him there.

Detective Helgert started the interrogation by presenting Thompkins with a form entitled “Constitutional Rights and Notification.” The form enumerated Thompkins’ constitutional rights derived from Miranda v. Arizona.  Detective Helgert wanted to ensure that Thompkins could read and understand English so he asked Thompkins to read the fifth warning out loud. Thompkins complied and read aloud the fifth right listed on the form:

“5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.”

Based on Thompkins’ recitation, Detective Helgert concluded that the suspect could read and understand English. Detective Helgert then read the remaining four Miranda rights out loud to Thompkins. After advising the suspect of his Miranda rights, Detective Helgert asked Thompkins to sign the form as evidence and confirmation that the suspect understood all the rights listed on the form. Thompkins refused to sign the form. Nevertheless, Helgert initiated the interrogation and proceeded to question Thompkins about the shooting for approximately three hours during which time Thompkins remained “largely” silent.

About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins three questions, which elicited three affirmative responses. First, Helgert asked Thompkins whether he believed in God (“yes”). Second, Helgert asked Thompkins whether he prayed to God (“yes”). The final question elicited a fatal affirmative answer and solidified Thompkins’ conviction for first-degree murder:

Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Thompkins answered “Yes.”

Thompkins claimed that he “invoked his privilege” to remain silent by not saying anything. That is, he invoked his right to remain silent by “largely” remaining silent for almost two-hours and forty-five minutes. Put simply, he invoked his right to remain silent by remaining silent.

The Supreme Court found Thompkins’ claim unpersuasive. The court expanded the standard set forth in Davis v. United States,  holding that a suspect must invoke his right to remain silent “unambiguously.” The right to remain silent cannot be invoked ambiguously and equivocally. Here, Thompkins did not “unambiguously” invoke his right to remain silent because he did not make the simple statements that he wanted to remain silent or that he did not want to talk to police. Therefore, in order to invoke the right to remain silent, the suspect must affirmatively state “I want to remain silent” or “I do not want to talk to you.”

The Supreme Court departed from the government’s “heavy burden” of establishing waiver. Now, the prosecution need not show that a waiver of Miranda rights was express. Rather, an “implicit waiver” of the “right to remain silent” is sufficient to admit a suspect’s statement into evidence. A waiver of Miranda rights may be implied through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”

The court stated that an implied waiver can be accomplished where the prosecution shows that (1) a Miranda warning was given, (2) that is was understood by the accused, and (3) the accused’s statements were uncoerced. No waiver is presumed,  from the very fact that the defendant made any uncoerced statements, but the defendant cannot invoke his right to remain silent unless he does so with the utmost clarity. Here, the government is relieved of its “heavy burden” of establishing waiver and places the onus on the suspect to invoke his right to remain silent with the utmost clarity.

The Supreme Court found that Thompkins implicitly waived his Miranda rights under the utmost clarity standard. First, there was more than enough evidence that Thompkins understood his rights. Second, Thompkins’ did not invoke his right to remain silent with the utmost clarity because he answered Detective Helgert’s questions, which was a “course of conduct indicating waiver.” “If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation.”

In Commonwealth v. Clark,, 461 Mass. 336 (2012), Detectives Ahlborg and Lyles of the (MBTA) transit police arrested the defendant for an indecent assault and battery. After the arrest, the defendant was brought to an interrogation room at MBTA headquarters.

Similar to Thompkins, Ahlborg provided the defendant with a waiver form, which listed his rights under Miranda. Like Detective Helgert, Ahlborg verbally reviewed the rights in the form with the Defendant.  After reviewing those rights with the defendant, Ahlborg asked him whether he wanted to discuss the charges. After a brief exchange, Ahlborg asked the defendant, “So you don’t want to speak?” In response, the defendant “shook his head back and forth in a negative fashion.” Ahlborg interpreted the defendant’s head movement as an indication that he didn’t want to speak.

Lyles, on the other hand, didn’t have the same interpretation and sought to correct a misapprehension that she thought resulted from that brief exchange. The “misapprehension” was the implication of the defendant’s decision not to speak. Alhborg informed that the defendant that “nothing” would happen if he chose not to speak. Lyles explained that “nothing” did not mean that the defendant would be free to leave and go home. In a further exchange, Lyles asked the defendant whether he wanted to speak with them. The defendant answered, “Yeah.” The defendant then signed the Miranda waiver form. In the ensuing interrogation, the defendant made inculpatory statements. The defendant successfully suppressed the inculpatory statements made post head-shake.

Relying on Thompkins, the commonwealth argued that the defendant must actually speak to invoke the right to remain silent, e.g., that he must unambiguously invoke his right to remain silent with the utmost clarity. The SJC rejected the premise that a suspect must affirmatively speak in order to invoke his right to remain silent emphasizing the communicative value of nonverbal expressive conduct. Here, the defendant’s nonverbal expressive conduct of shaking his head back and forth in a negative fashion was sufficient to invoke his right to remain silent. Citing the dissenting opinion in Thompkins, the SJC found that to require a suspect to affirmatively speak in order to invoke his right to remain silent is counterintuitive. As Justice Sotomayor pointed out, “Advising a suspect that he has a ‘right to remain silent’ is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected.”

Thompkins
created a heightened standard in which the suspect is required to invoke his right to remain silent with the “utmost clarity.” The SJC declined to adopt this heightened standard. Instead, SJC adheres to the principle of Miranda, which sets a lower bar for the invocation of the right to remain silent. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (Emphasis added). Thompkins utmost clarity standard ignores this longstanding precedent. Here, defendant Clark indicated that he wished to remain silent in a manner of shaking his head from side to side in a negative fashion. Placing such a heightened burden on the suspect “turns Miranda upside down” by placing too great a burden on the exercise of a fundamental constitutional right.

The SJC rejected Thompkins approach to implied waiver (which places the burden on the defendant to invoke his right to remain silent with the utmost clarity) because such an approach effectively reverses the burden of proof applicable to waiver. That is, the suspect (not the government) must prove waiver with the utmost clarity. Instead, the SJC keeps the “heavy burden” on the government in proving waiver, as a matter of state law. Under Massachusetts law, “[t]he court will indulge every reasonable presumption against waiver of constitutional rights.” Commonwealth v. Hosey, 368 Mass. 571, 577, 334 N.E.2d 44 (1975). If the commonwealth cannot prove waiver beyond a reasonable doubt, Commonwealth v. Tavares, 385 Mass. 140, 430 N.E.2d 1198 (1982), then all evidence derived therefrom is tainted.

Thompkins
unquestionably favors police interrogators by allowing them to question a criminal detainee for hours on end with impunity unless and until the detainee has the wherewithal to utter those magic words with the utmost clarity to cease the interrogation. In Clark, the SJC placed a limit on the power of the interrogator and tipped the scales back toward the detainee by giving him the power to exert some control over the course of the interrogation in a police-dominated atmosphere.

©2015 Massachusetts Bar Association


Learn More About Attorney Patrick Noonan

Nobody’s perfect: the need for new expungement law

Attorney Patrick Noonan“Nobody’s Perfect: the need for new expungement law,” written by Massachusetts criminal defense attorney, Patrick. J. Noonan, was published in the Lawyers Journal (Vol. 22, No.: 10, June 2015), which examines the difference between sealing a criminal record and expunging a criminal record in Massachusetts.

Read on Mass. Bar Association Website || More Publications by Patrick J. Noonan


Even minor convictions can have a lasting impact on your criminal record.Nobody’s perfect: the need for new expungement law

By Patrick J. Noonan

June 2015

In Massachusetts, the second you are arrested, the damage is done. The criminal charge will follow you forever. Nobody is perfect. We all make mistakes. Don’t we deserve a second chance? Expungement gives people a second chance. It wipes the record clean. It gives them a “clean slate.”

In Massachusetts, the court has the power to order expungement. However, the court almost never orders expungement, even in cases that cry out for it. The reason why expungement is practically unattainable in Massachusetts is because we have record-sealing statutes instead. A sealed record is nothing like an expunged record. A sealed record provides some protection, but does not give the person the “clean slate” they want and need. On top of that, getting your record sealed in Massachusetts is no easy task. Courts will always deny expungement whenever a defendant has some remedy under the record-sealing statutes. So why do we even have an expungement statute?

Sealing: Not a Clean Slate

The sealing of records pertains to the papers and docket entries in a particular case maintained by the Clerk-Magistrate’s Office, and records of the case kept by the court’s Probation Department, as well as records maintained by the commissioner of probation. When a record is sealed, it only becomes unavailable to the public. Sealing does not mean that the record is wiped out completely, as most would think. A sealed record will always be accessible to law enforcement, probation officers, the court, and certain entities authorized by statute. G.L. c. 6, §§ 172 provides a list of entities with authority to heightened CORI access. The biggest benefit of a sealed record allows an applicant for employment to answer “no record” to an inquiry relative to prior arrests or criminal court appearances and the commissioner of probation must corroborate that statement by reporting that no record exists.

Sealing Your Record: A Difficult Task

There are two principal sealing-statutes: G.L. c. 276, §100A (applicable to convictions) and G.L. c. 276, §100C (applicable to non-convictions).

G.L. c. 276, §100A permits the sealing of a conviction upon the passage of time. A person must wait five years to seal a misdemeanor conviction and ten years to seal a felony conviction.

G.L. c. 276, §100C ¶ 1 gives the commissioner of probation discretion to seal certain non-convictions, such as when the defendant has been found not guilty, a no bill has been returned by the grand jury, and upon a finding of no probable cause by the court. G.L. c. 276, §100C ¶ 2 gives the court the discretion to seal certain non-convictions in which the court has entered a dismissal or in which a nolle prosequi has entered subject to a finding by the court that “substantial justice would best be served.”

It is no easy task to seal one’s record under §100C ¶2. “[S]ealing of the court record of a criminal defendant should only occur in exceptional cases.” Commonwealth v. Doe, 410 Mass. 142, 149 (1995). The defendant must undergo an onerous process consisting of two hearings. At the first hearing, the defendant must make out a prima facie case entitling him to sealing. Passing that hurdle, the defendant must undergo a second, more extensive hearing in which the public, the press, the police, the prosecutor, the probation department, the victim, or anyone else may intervene and present their objections. Now comes the hard part. The defendant “must show that specific harm is threatened by the continued existence of the record.” Doe at 149. The court will not seal a record based on general reputation and privacy interests. The defendant’s showing of specific harm must be strong enough and “clearly outweigh” the constitutional value of the record remaining available to the public. Oftentimes, defendant’s try to seal their records pro se and they are routinely denied because the defendant (a non-lawyer) cannot sustain the heavy burden of showing specific harm.

Expungement: A Clean Slate

Unlike sealing, expungement erases everything associated with a person’s criminal case. Expungement involves the removal and destruction of records “so that no trace of information remains.” Police Commissioner of Boston v. Municipal Court of Dorchester District, 373 Mass. 640, 648 (1978). Whereas sealing involves records kept by the court and probation, expungement eliminates all traces (e.g., complaints, arraignments, fingerprints, photographs, police reports, arrest registers, etc.). Expungement is the best remedy because it gives the person the “clean slate” they desperately want. However, expungement is difficult if not impossible in Massachusetts. The court has declined to expunge records in cases of mistaken identity, clerical errors, and false allegations. Basically, whenever a defendant has a remedy under any of the sealing-statutes (G.L. c. 276, §100A-C), the trial court lacks the authority to order expungement. Only in the rarest of circumstances will the court find that there is no statutory remedy other than expungement.

Mistaken Identity

In Commonwealth v. S.M.F., 40 Mass. App. Ct. 42 (1996), S.M.F. was the victim of identity theft. Jane Doe (most likely the thief) was charged with unrelated crimes and identified herself to authorities as S.M.F. As a result, all records of Jane Doe’s case (arrest, criminal complaint, arraignment, and disposition) were entered on S.M.F.’s permanent record, which she sought to have expunged. In a rare case, the court upheld expungement only because they could not fit the bizarre circumstances within the broad reach of the sealing-statutes.

Although S.M.F. involved an imposter, the Supreme Judicial Court declined to uphold epungement in a clear case of mistaken identity in Commonwealth v. Boe, 456 Mass. 338 (2010). In Boe, the defendant was the victim of poor police work and mistaken identity. A vehicle registered to the female defendant (Boe) was involved in a car accident in which the sole occupant of Boe’s vehicle (a Hispanic male operator) fled the scene. The police misidentified Boe as the perpetrator of the hit-and-run when the offense was committed by a male, and Boe was clearly a female. As a result, a criminal complaint issued against Boe for leaving the scene of an accident causing personal injury. Obviously, the complaint was later dismissed. Anyone looking at these facts would think that expungement was a no-brainer because Boe clearly didn’t commit the crime and was the victim of poor police work. The SJC, however, declined to expunge Boe’s record because she had a remedy under §100C of the sealing statute, as her case ended in a dismissal by the court.

Clerical Error

In Commonwealth v. Alves, 86 Mass. App. Ct. 210 (2014), the Appeals Court held that expungement was warranted only because of rare and unusual circumstances. In Alves, the defendant was the victim of a clerical error. The defendant and the perpetrator of a hit-and-run accident shared the same unique name (Octaviano Alves) but they had different dates of birth. The clerk’s office mistakenly issued the criminal complaint against the innocent Alves by using his date of birth (1983) instead of the real Alves’ date of birth (1977). Obviously, the complaint against the innocent Alves was dismissed. In a rare move, the Appeals Court granted expungement finding that sealing was not an appropriate remedy due to the narrow and exceptional nature of the case because “the person originally charged with the crime was not only factually innocent, but was never the intended target of law enforcement.” Id. at 215.

In Commonwealth v. Boe, 456 Mass. 338 (2010), the defendant was also the victim of an error committed by the court. Upon receiving a summons for a show cause hearing on a charge she didn’t even commit, Boe dutifully appeared in court on time. A court employee mistakenly directed Boe to the arraignment session instead of the clerk’s office where the show cause hearing was to be held. Due to the court employee’s mistake, the criminal complaint was issued against Boe. Alves and Boe were both victims of a court mistake and both Alves and Boe were factually innocent but Alves was entitled to an expungement and Boe was not.

Fraud on the Court & False Allegations

In Commonwealth of Probation v. Adams, 65 Mass. App. Ct. 725 (2006), the Appeals Court affirmed an order expunging all records associated with a 209A order issued against the defendant by her ex-boyfriend. The circumstances of Adams, however, were extreme because the 209A order was obtained through a “fraud on the court,” which gives the court broad discretion to invoke its inherent powers. The ex-boyfriend made 19 allegations in four different affidavits against the defendant that were “false and perjurious.” His behavior was “extremely alarming” and indicative of obsessive compulsion. In ordering expungement, the Appeals Court appeared to be more focused on the court being the victim of fraud rather than the defendant being the victim. Expunging Adams’ record was necessary to protect the integrity of the courts.

In Commonwealth v. Moe, 463 Mass. 370 (2012), the defendant was not the victim of fraud but something much worse – extortion. In Moe, the defendant was charged with assault with a dangerous weapon stemming from false allegations by the alleged victim, a disgruntled employee. After the complaint issued, the alleged victim called the defendant’s lawyer on several occasions and threatened to report the allegations on national television unless the defendant paid him $5,000. Even the detective admitted to the prosecutor that he did not believe the alleged victim’s story. The prosecutor filed a nolle prosequi. Citing Adams, Moe moved for expungement, arguing that the alleged victim committed a fraud on the court. One may view the alleged victim’s actions in Moe to be more egregious than the ex-boyfriend’s actions in Adams. Even the SJC admitted that the alleged victim made intentional misrepresentations and basically acknowledged that he committed the crime of attempted extortion. The SJC, however, found Adams to be distinguishable because the alleged victim never made false statements under oath like the ex-boyfriend did in Adams. Relying on Boe, the SJC declined to expunge Moe’s record because he had a remedy under §100C of the sealing statute, as a nolle prosequi had been entered.

New Expungement Legislation is Needed

Expungement provides a better remedy than sealing, as it gives the defendant a second chance with a “clean slate.” However, the existing law makes expungement impossible because the court will always deny expungement whenever the defendant has a remedy under the sealing statute regardless of how unjust the circumstances may be. Therefore, new legislation is needed to correct these wrongs.

Those Who Should be Entitled to Expungement

First, expungement should be made available to first-time offenders, depending on the nature of the charge. Everyone makes a mistake and a first-time offender (regardless of age) should not be forced to live the rest of their life with a blemish on their record. Quite commonly, I have represented middle-aged persons and elderly persons with no prior involvement with police or the court system, but they made a mistake and got arrested. These people went their whole lives without getting into trouble, but they made a mistake (it happens) on one occasion. They should be given a second chance.

Second, young, first-time offenders should be eligible for expungement depending on the nature of the charge. Obviously, if somebody is young and commits a petty, non-violent misdemeanor offense (shoplifting, disorderly conduct, whatever) they should have the benefit of automatic expungement. Even when the offense is more serious, a young, first-time offender should be entitled to discretionary expungement. Young people have the capacity to make small mistakes and big mistakes. I have represented high-school and college students (good kids) who’ve done some pretty reckless things and were whacked with some serious charges. I’m not saying that we should look the other way, but they should be afforded the opportunity to make their pitch for expungement in a hearing similar to the hearings we have for record sealing.

Third, first-time drug offenders should have the benefit of automatic expungement depending on the nature of the drug charge. Presently, G.L.c. 94C, §44 allows a defendant to seal his record for a drug offense (usually simple possession) if found not guilty, if the complaint is dismissed, or if the indictment nol prossed. If the defendant is a first-time drug offender under Ch. 94C §34, he should be entitled to automatic expungement in the same circumstances (not guilty, dismissal, nolle pross). Even if a first-time offender is convicted of simple possession, he should be entitled to automatic expungement. The rationale being that first-time drug offenders ought to be given the opportunity for treatment and rehabilitation rather than being convicted and imprisoned due to their substance dependency.

Incorporate the Sealing Laws

Criminal Record Expungement Lawyer§100C ¶ 1 of the sealing statute (permitting sealing in cases of not guilty, no bill, and no probable cause) should be incorporated into a new expungement statute where a defendant’s record shall be automatically expunged in cases of not guilty, no bill, and no probable cause.

It baffles me that someone is not entitled to automatic expungement when a judge or jury finds them “not guilty.” Imagine being falsely accused of a crime; the stress, the anxiety, the embarrassment, the humiliation, and the day finally comes when you’re exonerated and found not guilty. Then, you’re told that you can’t have your record expunged even though you’re innocent! When a grand jury (who can indict a ham sandwich) returns a “no bill” a defendant should have his record automatically expunged. Automatic expungement is warranted when the commonwealth fails to sustain the low burden of probable cause. If the commonwealth can’t even present the minimal evidence necessary to pass the low threshold of probable cause, the defendant’s record should be automatically expunged.

§100C ¶ 1 of the sealing statute (permitting discretionary sealing in cases of dismissal and nolle prosequi) should be incorporated into a new expungement statute where a defendant’s record may be expunged in cases of dismissals and nolle prosses — subject to a hearing similar to that contemplated in §100C ¶ 2. The defendant’s difficult burden of demonstrating “specific harm” should be less rigid and there should be more of an analysis on how the case ended with a dismissal or nolle prosequi. For example, if the case was dismissed or noll prossed because the charges were rubbish, than expungement is appropriate. On the other hand, if there’s considerable validity to the allegations but the charges were dropped for whatever reason than that should be considered against expungement.

The benefits of expungement should be made available to the people of Massachusetts, as it is in other states. Expungement shouldn’t be impossible (as it now is) but made available to the first-time offender, the young and immature, the drug addicted, the misidentified, the wrongly accused, the wrongly prosecuted, the over-prosecuted, the exonerated and those who can make the case for a second chance.

©2015 Massachusetts Bar Association


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Audit: Youth ‘felt very safe’ at Casa Isla, days before shutdown amid allegations of abuse

By Shira Schoenberg
August 4, 2015

Note:  This article was originally published on MassLive.com

5 Men standing in court accused of assault
Five of the men accused of abusing juveniles at a state-run facility stand for their arraignments at Suffolk County Superior court on July 22, 2015. (SHIRA SCHOENBERG / THE REPUBLICAN)

BOSTON – On Aug. 21, 2014, an auditor who was trained in monitoring prisons to ensure that they complied with anti-sexual assault policies conducted an audit of a Boston juvenile detention facility.

Auditor Kurt Pfisterer interviewed four boys in the facility, called Casa Isla, spoke to staff members and toured the place.

“All youth knew multiple ways to report abuse and felt very confident that any complaint they made would be properly addressed,” Pfisterer, an independent auditor certified by the U.S. Department of Justice’s Bureau of Justice Assistance, concluded in the audit. “None of the youth reported ever having fear for their safety while at the facility.” He wrote that the youth “felt very safe.”

By the end of that month, the Massachusetts Department of Youth Services had shut Casa Isla down amid reports of physical abuse. Last month, the Suffolk County District Attorney’s office charged eight Casa Isla employees with assaulting adolescent boys at the facility. All have pleaded not guilty. The audit, which The Republican/MassLive.com obtained through a records request to the Massachusetts Executive Office of Health and Human Services, could play a role in the court case.

Pfisterer said in an interview that there is an important distinction between sexual abuse, which was the subject of the audit, and physical abuse.

The facility was run by Volunteers of America through a contract with the state. According to prosecutors, staff members would pull down the pants of residents and hit them on their naked backsides with an orange, state-issued sandal, a ritual referred to as “orange chicken.” Residents were threatened with physical harm if they told anyone about the assaults.

The audit, required once every three years by the federal Prison Rape Elimination Act (PREA), was meant to ensure that the facility complied with federal standards on sexual assault.

Pfisterer is not allowed to comment on a specific audit he conducted. But, Pfisterer said, “Physical abuse is not necessarily sexual abuse….Physical abuse, if it doesn’t fall within the Department of Justice’s standard related to sexual violence, is not within the scope of the audit.”

The federal standards do prohibit intentional touching of the buttocks. But Pfisterer said anything the state knew about and disclosed at the time did not fall under the sexual abuse standards.

“There could be activity someone at the facility does that while it’s dead wrong, that should not happen to anybody’s child, that doesn’t fall under the standards,” Pfisterer said. “(The audit is) strictly related to sexual violence… The inappropriate use of physical force doesn’t fit.”

In a statement immediately after the criminal charges were filed, a spokesman for Volunteers of America pointed to the audit as an indication that the facility was in full compliance in areas related to safety protocols and security cameras.

Renee Nadeau Algarin, a spokeswoman for the Suffolk County District Attorney’s Office, said prosecutors are aware of the audit, which was conducted as the Suffolk County District Attorney’s investigation was in its early stages.

“The investigation remains open and ongoing, and as such I am necessarily limited in what can be said about the evidence,” Algarin said. “However, in every case that we bring charges, we’re acting in good faith and in keeping with our ethical obligations as prosecutors. Here, the indictments brought against these eight defendants are consistent with the evidence collected over the course of nearly a year and speak to the seriousness of the defendants’ alleged acts.”

Michael Doolin, an attorney for former Casa Isla staffer Ainsley Laroche, who was charged in the assaults, said the audit is “very positive for our case.”

“It’s my position that my client didn’t assault anybody, and that he’s in fact not guilty of these charges. This type of evidence would certainly bolster that claim,” Doolin said. Doolin had not seen the audit, since defense lawyers have not yet been given discovery material from prosecutors.

Patrick Noonan, an attorney for Casa Isla supervisor Jalise Andrade, who was also charged, said he has not received documents from the prosecution, so he could not comment on the specific audit. “It’s a little premature for me to comment on any materials, because I haven’t been provided with any,” Noonan said. But Noonan called the audits generally “extremely relevant.”

Like Doolin, Noonan declined to comment on whether he believes abuse occurred at the facility. He said his client, who worked there for four years, was not involved in any abuse. “He did not abuse any of the youths there,” Noonan said. “We are very eager to review all these materials to prove that my client did not do anything wrong.”

The PREA audit found that there was one allegation of sexually inappropriate behavior by staff in the past year, and the involved staff members were suspended pending the outcome of the investigation. Overall, it found that the facility met or exceeded every standard related to preventing sexual assault.

Pfisterer said compliance does not mean there will never be a case of sexual assault, but it means the facility will respond appropriately under federal law.

“It’s not a guarantee that everybody’s fine. It’s a statement that the facility has the policies in place to comply with the federal standards,” Pfisterer said.

Pfisterer stressed that Massachusetts is unique, as the only state that pays for audits of facilities run by contracted vendors, rather than making the vendor pay. He said Massachusetts provides training and support to vendors. “The state of Massachusetts has gone way beyond what the rest of the country does,” Pfisterer said. “Massachusetts is the only state I’ve ever come across where state government is paying for private contracted providers to conduct these audits. To me, that’s a huge commitment to how important compliance is to Massachusetts…and how important it is that the kids that they’re responsible for are safe.”

Other more general reviews of Casa Isla, which occurred before the period of the alleged assaults, identified generally minor problems, but some that could come up in this case, particularly problems with surveillance video equipment and training.

Noonan said he anticipates receiving an extensive amount of video footage from prosecutors.

A March 2014 review of Casa Isla by the Department of Youth Services found that the program appeared to be running well. But the review did find that surveillance video equipment was malfunctioning, so monitors could not review footage from earlier dates. According to the Executive Office of Health and Human Services, nine additional video cameras were installed in July 2014.

Prosecutors allege that the abuse occurred between April and August 2014.

The PREA audit found that video surveillance covered 90 percent of program areas. The audit found that with high levels of staffing, “excellent supervision practices fully mitigate any concerns regarding blind spots.”

Otherwise, the general audit identified mostly small problems, such as with documentation practices. It did say that some staffers still needed to attend required trainings, such as suicide prevention training – something that had been identified as a problem consistently since 2010. It found that concern by a staff member about security in a classroom area was unfounded

Monitoring visits in prior years also identified mostly small problems not directly related to physical safety – things like juveniles listening to inappropriate music or keeping open soda containers in their rooms.

Asked about the audits, Rhonda Mann, a spokeswoman for the Executive Office of Health and Human Services, said, “DYS takes all allegations of abuse seriously and is fully cooperating with law enforcement in its investigation into this matter. In response to this situation DYS has, and will continue to, increase its monitoring visits and program reviews to ensure that we are providing quality services, and that youth are being treated in a safe and respectful manner.”

© 2015 MassLive LLC. All rights reserved.

Prosecutor: Boys hit on naked backsides in ‘orange chicken’ abuse at Massachusetts state-run facility

5 Men standing in court accused of assault
Five of the men accused of abusing juveniles at a state-run facility stand for their arraignments at Suffolk County Superior court on July 22, 2015. (SHIRA SCHOENBERG / THE REPUBLICAN)

By Shira Schoenberg
July 22, 2015

Note:  This article was originally published on Masslive.com

BOSTON — In ritualized physical abuse that the staff referred to as “orange chicken,” prosecutors say staff members at a state-run facility for adolescent boys would pull down the pants of residents and hit them on their naked backsides with an orange, state-issued sandal.

“Residents would receive ‘orange chicken’ for anything from misbehavior, returning to the program after being discharged, and the night before being discharged from the program as a reminder not to return,” said Gloriann Moroney, a Suffolk County prosecutor.

Seven former employees of Casa Isla, a 15-bed Department of Youth Services facility for boys committed by the juvenile courts, were arraigned in Suffolk County Superior Court on Wednesday for allegedly assaulting facility residents.

The facility has since been closed.

“We are deeply troubled by this incident,” said Rhonda Mann, a spokeswoman for the Executive Office of Health and Human Services. “(Department of Youth Services) is committed to ensuring a safe, respectful environment for youth in its custody.”

The workers accused of the abuse are: Silvio Depina, Ainsley Laroche, Hermano Joseph, Jalise Andrade, Raymond Pizzaro, Joseph Cintolo, Wilkins Jeanty and Emmanuel Fedna.

According to prosecutors, staff members would enlist residents to participate in the assaults on other residents. The juveniles were told that if they did not participate, they too would receive “orange chicken.” There were other assaults that were not part of the ritual.

“Almost all the victims and witnesses disclosed being threatened by physical harm if they informed anyone about the assaults taking place,” Moroney said. She said several residents were told that staff at Casa Isla knew staff in other facilities, and they would face additional harm if they left the facility.

All of the staff members other than Fedna pleaded not guilty and, through their attorneys, denied the charges. Fedna will be arraigned on Thursday.

Gerald Noonan, an attorney for Andrade, said in court that his client “vehemently denies” the allegations, a sentiment echoed by the other attorneys.

Michael Doolin, an attorney for Laroche, said after the arraignment that the charges did not involve Laroche, who had no knowledge of any abuse. “He was not involved in any of these charges,” Doolin said. He said Laroche “looks forward to his day in court,” where he anticipates being acquitted.

After the arraignments, several of the men declined to speak to the press.

For 20 years, the state had a contract with Volunteers of America to run Casa Isla, a facility for short-term stays located on Long Island in Boston.

Stephanie Paauwe, a spokeswoman for Volunteers of America Massachusetts, said the organization is cooperating with investigators and has turned over 2,300 hours of security camera footage. “Casa Isla had a very strong system in place to ensure the safety and well-being of the young men in our care, and was led by numerous licensed and experienced professionals,” Paauwe said in a statement.

Just before the time the allegations were made, Paauwe said the Department of Youth Services conducted a regular review of the program, including the oversight of residents, safety protocols, monitoring, security cameras and reporting systems, and found it to be in full compliance.

“It is hard for us to imagine that this could have been occurring given the rigorous oversight by experienced and dedicated caregivers at Casa Isla,” Paauwe said. “But it is our collective duty to find out what happened and we hope that every step will be taken to ascertain the truth in this matter.”

According to the Executive Office of Health and Human Services, the Department of Youth Services received a verbal report of physical abuse at the facility in August 2014.

The department removed all youth from the program, terminated the contract with Volunteers of America, notified law enforcement and filed a report alleging abuse with the Department of Children and Families and Office of the Child Advocate.

WBUR first reported in April that Casa Isla closed in August 2014 amid allegations of mistreatment.

Two Department of Youth Services workers worked part-time for the program and have been fired, according to Mann.

Mann said the state provided counseling and support to youth who were victims or witnesses to the abuse.

Mann said the state conducts regular, unannounced visits to all of its facilities. “In response to this situation, DYS has increased its monitoring visits and program reviews to ensure that we are providing quality services, and that youth are being treated in a safe and respectful manner,” Mann said.

All of the defendants were charged with assault and battery with a dangerous weapon. Depina, Laroche, Joseph and Andrade were charged with intimidating a witness and threatening to commit a crime. Depina and Joseph were also charged with indecent assault and battery of a person 14 or over, and assault and battery. There were multiple counts of several of the crimes, likely indicating multiple victims. Moroney said there were “many” instances of physical abuse.

Moroney said in court that the investigation involving the Suffolk County District Attorney’s office, the state police and the Department of Youth Services has been ongoing since August 2014.

The defendants were all released on personal recognizance bail. They must stay away from Department of Youth Services facilities and current and former residents and they will not be allowed to have unsupervised contact with children other than their own.

Overall, the Department of Youth Services operates 58 residential programs for detained and committed youth, of which 19 are operated by the agency and 39 are operated by non-profit providers. Casa Isla was founded in 1991 and oversaw care of approximately 100 adolescents a year.

This story was updated to add information about Fedna.

© 2015 masslive.com. All rights reserved.

Jury to begin deliberations in Brockton shooting trial

By Phyllis J. Silva
Enterprise Staff Wrtier

(1993) BROCKTON – Jury deliberations were scheduled to begin today in Brockton Superior Court in the trial of three men accused of shooting a city man outside a Cour Street market two years ago.

On trial are Dieudel Charles 20, of Dorchester, Monsalvey Charles Charles, 23, and Frantzy E. Therilus Jr., 24, both of Brockton.

They are being tried under the theory of joint venture, meaning that they all knowingly participated in alleged attempted robbery and shooting of the 23-year-old Jean Jusme on May 7, 1993.

 

ury to Begin Deliberations in Brockton Shooting Trial

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Charging drug dealers with OD deaths difficult, not impossible

By Benjamin Paulin
May 17, 2015

Note:  This article was originally published on PatriotLedger.com

Brockton Superior Court. Photo: Mass.Gov®
Brockton Superior Court. Photo: Mass.Gov®

WAREHAM – Last week, Plymouth County District Attorney Timothy Cruz’s office announced they had charged an alleged drug dealer in the heroin overdose death of a 25-year-old Wareham woman.

It was the first time that prosecutors in Plymouth County have aimed to hold such a person accountable for the overdose death of one of his customers.

Because of the difficulty of tying the heroin that killed an overdose victim to the dealer who sold the fatal drug, the charge is rare in such a case.

And it’s not the only obstacle prosecutors face.

Steven Foss, 33, of Wareham was arraigned in Brockton Superior Court Tuesday May 5, on a charge of manslaughter, among other charges, after allegedly selling heroin that killed 25-year-old Paige Lopes of Wareham.

State Police Col. Timothy Alben believes that charging dealers with such a serious offense as manslaughter may make some dealers think twice about selling the drug and could stem the epidemic of fatal heroin overdoses.

“We’re losing 75 to 100 people a month right now to these overdoses,” Alben said State Police Colonel Timothy Alben. “It’s in every suburban and urban community. It’s across the board.

“If you’re in this business of selling drugs I think you should be held accountable for killing people,” Alben said.

Cruz agrees.

“Substance abuse issues are haunting our neighborhoods,” Cruz said. “We need to fight this problem on all levels in order to send a strong message and take back our communities.”

For law enforcement officials, charging a dealer with manslaughter isn’t an easy task, but it’s not impossible, Alben said.

“One of the difficulties is making a connection from what the victim ingested into their body and making a direct connection to the drug dealer,” Alben said. “It can become very complex. You really depend upon friends, family, acquaintances telling us what they know and trying to tie it back to who sold it to them.”

Another hurdle, Alben said, is the nature of drug dealing and drug abuse.

“There’s no regulation. It’s not like you’re going into CVS and you have a receipt for it,” Alben said.

Another contention is that drug use is something a person decides to do themselves.

“Drug use is generally a voluntary act,” said Suffolk County District Attorney spokesman Jake Wark. “What about tobacco? Do you go to the convenience store that sold the cigarettes? What about the person that shipped them? What about the person that manufactured them?”

To charge a person with manslaughter, prosecutors need to prove the conduct was “wanton and reckless.”

“You don’t intend to kill the person but your conduct is so reckless that it causes the death of somebody else,” said Brockton defense attorney Patrick Noonan.

Noonan said if he was a defending a client in such a case, he would hold the prosecution to the burden of proof that the conduct was in fact “wanton and reckless.”

There have been two such cases out of Norfolk County, both of which had led to guilty pleas.

In June 2002, Richard Spinale of Walpole was given a three-year state prison sentence after he pleaded guilty to involuntary manslaughter for the overdose death of his friend, 25-year-old Brian Shiner.

In 2004, Christine Callahan of Weymouth pleaded guilty to manslaughter in connection with the death of an inmate at the Norfolk County jail, where Callahan was a guard. Callahan smuggled the drugs to 34-year-old Anthony Marchetti of East Bridgewater, who overdosed and died in 2002. She was sentenced to 15 months in jail.

Last month, Easton police said they may be seeking a manslaughter charge against Kevin Cotter, 27, of Easton after he allegedly sold heroin to a Stoughton man who died from an overdose a short time later.

Alben hopes to see more cases in future.

“In my view, it certainly should happen more,” Alben said.

© Copyright 2006-2015 Gatehouse Media, Inc. Some rights reserved.  Original content available for non-commercial use under a Creative Commons license, except where noted.

East Bridgewater man found not guilty in Bridgewater rape case

By Benjamin Paulin
April 17, 2015

Note:  This article was originally published on EnterpriseNews.com

Brockton Superior Court. Photo: Mass.Gov®
Brockton Superior Court. Photo: Mass.Gov®

BROCKTON – An East Bridgewater man was acquitted of rape charges by a jury in Brockton Superior Court earlier this week.

Bryan Souza, 26, was found not guilty on Wednesday of rape and indecent assault and battery.

In January 2011, a woman Souza was dating alleged that he raped her while inside his Bridgewater apartment, Souza’s attorney Patrick Noonan said.

Noonan and his father, attorney Gerald Noonan, argued that the two had consensual sex.

Two witnesses testified that they slept on a futon that was a few feet away from Souza’s bed the night the alleged sexual assault was said to have taken place.

“Both defense witnesses testified that they did not hear or see anything while they were sleeping on the futon,” Patrick Noonan said.

The alleged victim had several inconsistencies and contradictions in statements made to police, a grand jury and at trial, Patrick Noonan said.

A jury deliberated for less than an hour on Wednesday and found Souza not guilty on all charges.

“We are disappointed in the result but we respect the jury’s decision,” Plymouth County Assistant District Attorney Russ Eonas said.

Benjamin Paulin may be reached at bpaulin@enterprisenews.com.

© Copyright 2006-2015 Gatehouse Media, Inc. Some rights reserved.  Original content available for non-commercial use under a Creative Commons license, except where noted.