Articles Posted in Sexual Crimes

When we left off last week, the Boston Criminal Lawyer Blog was discussing what other charges, and what other potential defendants, might exist in the continuing debacle of the Penn. State sexual assault scandal.

First, an admission about which you know. I do not practice in the state of Pennsylvania. I am a Massachusetts criminal defense lawyer. Therefore, since Massachusetts and federal law are the areas in which I practice, let’s theoretically move Penn State to Massachusetts for purposes of today’s blog.

We have examined many instances wherein the prosecution decides that a criminal matter is so bad, or, at least, news worthy, that one defendant is not enough. Because things do not usually happen in a vacuum, the theory of “being our brother’s keeper” is often given prosecutorial teeth in such instances. While in the past, blame for allowing an environment in which the criminal actions could take place with impunity was dealt with in civil litigation.

However, as we have also discussed, those days are in the past.

When dealt with in civil litigation, the bedrock of negligence cases is a duty owed to someone…usually, the alleged victim. This is not to say that the theory of negligence is the only potential basis for civil cases, but let’s limit it to that for this posting. After all, this is not the Boston Civil Lawyer Blog, it is the Boston Criminal Lawyer Blog. Besides, the good folks at Altman & Altman, LLP. Have a number of civil law related blogs.

In a situation such as Sandusky’s crimes, clearly a duty was owed to the kids who were brought onto campus. Said duty would be even clearer if the victims were actually students of the University. In any event, when reports were made about observations made of potential sexual assaults, certain people in charge had the responsibility under the law to try to, at the very least, prevent it from happening again.
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The Boston Criminal Lawyer Blog has been discussing many instances wherein matters which used to be handled without the threat of imprisonment are now pulled into the criminal courts. Whether they should or not, of course, depends on your point of view. I don’t think many people will shed tears with this one, though, as it ripens to fruition.

According to the new investigation, Penn State University’s top officials, including head football coach Joe Paterno, failed to protect the children who were sexually abused by former assistant coach Jerry Sandusky.

“Hey, Sam, don’t you mean ‘alleged’?”

Well, after a rather large amount of evidence, fairly lame defense and jury verdicts of “guilty”, I am willing to go out on a limb here and leave that particular word out. This is not to say I have any inside knowledge as to Sandusky’s guilt or innocence. I do not.

In the meantime, Sandusky remains a guest of the state awaiting sentencing on 45 charges of sexually abusing 10 boys over a period of 15 years. Soon enough, he will be sentenced. So, his part in this story is pretty well over. Now, it is the question of who else has the proverbial blood on their hands.

According to the investigation, there is enough of said blood to go around.

In a letter accompanying the release of the report Thursday morning, former FBI Director Louis Freeh stated that, “Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky’s child victims by the most senior leaders at Penn State. The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized…” The officials “…never demonstrated, through actions or words, any concern for the safety and well-being of Sandusky’s victims until after Sandusky’s arrest.”

The translation of this being that there was never any concern until after the curtain of deniability was ripped away by public exposure.

Not that they didn’t try to keep it concealed even then…
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The verdict we had been waiting for came back on Friday night. It was not much of a shocker. Guilty of every count that was submitted to the jury.

The jury had deliberated on the 45 counts of sexually assault regarding 10 young boys for 21 hours. That may sound like alot of time to you, but in terms of a case with this much media coverage and 45 counts of this sexual nature, it was pretty quick.

Amazing how quickly folks can decide to send somebody away for…well…forever.

Jerry Sandusky, 68, hereinafter, the “Defendant”, now faces life in prison, though sentencing is weeks away. He had been under house arrest since last year but was placed in handcuffs and led from the court to jail after the verdict.

Despite my criminal defense-oriented corpuscles, from which you hear on a regular basis, I cannot say that I am surprised by the verdict. In fact, I don’t know anybody who was surprised by the verdict. The history of the abuses as described rang pretty true to anyone with personal or professional experience with these types of matters.

There remains one thing, however, that does remain surprising in this case. It is similar to what I was ranting about early last week.

We discussed the Defendant’s lawyer allowing him to give certain interviews to the press…one while the lawyer was present and one while he was at another location, although televised all by his lonesome. Both statements amounted to verbal suicide for the upcoming trial.

It just doesn’t look so great when someone accused of sexually assaulting many young boys has such a hard time answering tough questions like “Are you sexually attracted to young boys?” Stammering on one occasion and needing your lawyer to verbally belt you upside your head to remind you that, although you like “horsing around” with kids, you are not at attracted to them sexually does not leave potential jurors with the warm fuzzies.

The defense in this case elected to leave those statements untouched at trial as the Defendant did not testify. That may or may not have been a smart decision, although I can tell you that hinting to the jury in any way that the Defendant is going to testify but then not putting him on the stand is a big mistake. By the way, letting jurors on the panel who are familiar with the case and the people in it not a terribly wise move either when representing someone about whom these rumors had been present for a number of years.

However, there is something to be said for consistency.
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The trial of Jerry Sandusky (hereinafter, the “Defendant”) is trudging its way down to the finish line of a jury verdict. Thus far, the Commonwealth has been presenting its witnesses and the defense has tried to keep the presumption of innocence in play…at least until it can present its case.

As any regular reader of the Boston Criminal Lawyer Blog can tell you, the defense really has no obligation to present anything. It is the Commonwealth’s burden to prove the Defendant guilty beyond a reasonable doubt. Under the law, the defense can simply sit back, watch and do nothing.

Now, back to the land of Reality.

Particularly in this case, it would be most unwise for the defense to do nothing. It is particularly true in this case because the Defendant and his counsel have already opened their collective mouths to make promises and representations which they themselves will need to address. In fact, some of these statements have left long-time criminal defense attorneys scratching our heads since last fall!

For example, lets turn the clock back to the infamous interview the Defendant granted NBC’s Bob Costas months ago. You may remember that the Defendant’s attorney was not even in the same location as his client as he allowed this televised fiasco to hit the airwaves.

In his defense (no pun intended), the Defendant was asked some rather unforeseeable and mind-bendingly difficult trick questions, like “Are you sexually attracted to young boys, to underage boys?”

As you may recall, the Defendant finally did answer the question…after a long pause and some attempted footwork.

He eventually got to “No”, by the way.
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The United States service members who were part of the security detail in Colombia and now are under investigation reportedly include five Army Green Berets, two Navy Explosive Ordinance Disposal technicians, two Marine dog handlers, and an Air Force airman. Most of the 11 Secret Service agents and supervisors flown back to the United States (placed on administrative leave, their security clearances suspended) reportedly are married – which puts them in a precarious position regarding their employment with the agency…not to mention their families.

You see, adultery, like engaging a prostitute, is a no-no under military law. Further, wives do not like it very much either.

Given the shock-wave emanating through the governmental agencies this past week, it is difficult to imagine that throughout the history of war and the posting of armies far from home prostitution has been a common feature. But it has been. However, it has only quite recently, along with the issue of adultery, been specifically addressed in military law and regulation.

Proving again that “timing is everything”, the United States service members in the spotlight of scandal now not only face embarrassment and loss of livelihood, but also potential criminal prosecution for violating military law.

Under the Uniform Code of Military Justice (“UCMJ”), hiring a prostitute wasn’t specifically banned until 2006 – as part of the Bush administration’s effort to combat human trafficking, which frequently, it is argued, is connected to prostitution (including the involvement of underage girls).

Whether it is or not, and what to do with it, again, is another story for another blog.

Now, because of the change in the Manual for Courts-Martial, troops who patronize prostitutes can actually receive a dishonorable discharge, forfeiture of all pay and allowances and up to a year in jail. The specific definitions of “prostitution” and “pandering” are spelled out in Article 134 of the UCMJ, as are the circumstances under which such activities are considered “to the prejudice of good order and discipline in the armed forces or … of a nature to bring discredit upon the armed forces.”
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As, apparentl less important, criminal mysteries remain open in the United States, we are spending time, money and media attention on the mysteries of men hiring women for sex in another country.

Members of our military and national security organizations, have fallen prey to the ultimate evil which lurks in the heart of human society. It seems like only yesterday that the Boston Criminal Lawyer Blog was discussing our heroic and intrepid law enforcement officers of Massachusetts and their fight against this crime.

Actually, it was late last week.

In any event, the episode which brings endings to careers and embarrassment to our administration has shown that the sex industry, prostitution primarily, is an international industry.

The event took place just prior to President Barack Obama’s trip to Columbia for the Summit of the Americas. The results?

Approximately 11 Secret Service employees are under investigation; two have been fired and another has apparently decided to suddenly retire.

House homeland security chairman Representative Peter King told CNN yesterday that he expects more Secret Service employees to leave the agency as soon as today. Apparently, all the suspects are also being tested for evidence of drug use…although there have been no allegations of drugs having been involved in the incident.

The other eight members allegedly involved in the scandal are on administrative leave and have had their security clearances suspended, according to the Secret Service. Ten military personnel are also being probed for their possible participation in the incident.

The allegations brought against these people? They cavorted with prostitutes as they were awaiting the arrival of their Commander-In-Chief in Colombia.

In an election year, yet!

The men were all part of the “jump team” that flies in on military transport planes with the presidential limousine and other vehicles to be used in the president’s motorcade. They apparently arrived the morning of the incident, raising questions about whether the activity had been planned in advance. Previously plotted or not, they are accused of bringing prostitutes to Cartagena’s Hotel El Caribe ahead of last week’s visit by the president.
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While the rest of us were getting all caught up with silliness like homicides on the streets of Mattapan and Florida as well as deadly cyber-hate crimes in New Jersey, the good folks in Needham have been lucky. Far from being diverted from fighting real crime, the intrepid Needham Police Department have risked life and limb to battle what is, after all, probably at the root of all street crime.

Sex.

Well, more specifically, sex for money. That’s right, we are talking about mankind’s preeminent scourge…prostitution..

Examples of this recent stellar police work include a sting operation on March 16th. That’s right, while I was wasting your time and mine discussing aspects of cyber-bullying, multiple homicide and domestic violence trials, the NPD was shutting down two massage parlors because of alleged prostitution.

Of course, no police agency is an island and it took detective from the NPD as well as the Norfolk County Police Anti-Crime Task Force to successfully complete this criminal investigation.

While Needham Police Lt. John Schittler could not divulge the details of this daring-yet-absolutely-necessary operation, he did reveal that the operation which brought down two massage therapists, or alleged prostitutes, featured the work of an undercover police officer which must have rivaled the famous Sherlock Holmes. The two alleged sex workers, ages 46 and 50, were charged with sexual conduct for a fee and were arraigned in Dedham District Court.

“Pending the outcome of the investigation, there is the possibility of further charges being filed against a couple other individuals at each location,” announced Lt. Schittler. “The investigation will encompass every aspect of the business. We’ll look at all aspects of what transpired, and, if we determine that we have enough to push forward charges, then we would do so.”

Sure enough, less than a month later, on March 29th, as I was babbling on about multiple women being assaulted in Cambridge, Needham police nabbed a third person for prostitution. This one was 20 years of age.

Well, at least the citizenry of Needham are out of harm’s way…at least from these two addresses!

Attorney Sam’s Take On The Sex Trade, Human Trafficking And Hypocracy

A week or so ago, I saw a news story about a criminal investigation yielding the arrest of those charged with human trafficking. Far from being a victimless crime, that crime reflects some of the worst victimization that mankind has to offer when it takes place.

However, not everyone engaged in the sex trade is a sex slave.
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Every now and again, even an experienced criminal defense attorney of over a quarter century has to scratch his head and rub whatever scant hairs remain thereupon.

The case comes to us from Attleboro. A 41-year-old mother (hereinafter, the “Defendant”), is crying “foul” as she faces her day of judgment. You see, the Defendant insists that she was duped into committing what turned out to be a crime.

The alleged trickster, from Iowa, had duped the Defendant, claiming to be a professional photographer. He apparently took advantage of the fact that the Defendant wanted to be a model.

Well, actually not just her. Her and her daughter.

Her ten year old daughter.

Hey…who knew that it was illegal to pose your 10-year-old daughter nude over a webcam to get work?
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There is in the old adage in the practice of law. It reads, “If the facts are on your side, pound on the facts. If the law is on your side, pound on the law. If neither are on your side, pound on the table. ”

Perhaps this gives some glimpse into the “chicken and egg” issue of how much evidence is enough to win a case. Although I have handled many civil cases, my expertise is the practice of criminal law. Therefore I will restrict my conversation herein to criminal trials.

We spend a fair amount of time in the Boston Criminal Lawyer Blog talking about law. We talk about the applications of the law, the changes in the law and the need to have experienced criminal defense attorney on your side who understands the law. Today, let’s talk about the issue of evidence.

Sometimes, I am horrified when reminded how little people understand about evidence. I’m not so shocked to hear that they don’t understand all the rules of evidence. How would they when they have never had to deal with it before? But I am amazed to learn that people actually think that a mountain of evidence is necessary in order for the Commonwealth to win a criminal trial.

This is not true.

Many cases, particularly sex crimes, come down to a “he said – she said” issue. In such cases, I am often advised by a prospective client that there is no way the prosecution can win because they only have her word for it. I then have to break the news that her word is plenty if the jury believes her word beyond a reasonable doubt.

“But Sam, what if she is a bad person? Surely, when you show the judge that he will dismiss the charges.”

No such luck

“You mean to tell me that it doesn’t matter at all about the so-called victims history?”

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The Boston Criminal Lawyer Blog has advised many times that you not try to out-fight, out-run or out-smart investigating officers.

However, it would appear that I had failed to advise something else…something I thought was a given. Apparently, I was wrong. Sorry.

But here it is…when law enforcement comes a-calling and letting you know that they are investigating you for criminal activity and do things like take away your computer…it is not a wise thing to then go and do the same thing for which they say they are investigating you.

Let’s discuss the matter of 23-year-old Keven McNicol (hereinafter, the “Defendant”). Now, he has pleaded “not guilty” to all charges, so as far as I know, he is innocent of all the nasty things folks are saying about him.

The Commonwealth says that he is yet another threat to children to hit the headlines recently. According to law enforcement, the Massachusetts Internet Crimes Against Children Task Force (“ICAC”) received a tip nearly nine months ago from a National Center for Missing Exploited Children CyberTipline. The information concerned an upload of child pornography to a website.

A joint criminal investigation ensued between ICAC, Massachusetts State Police, the Barnstable County Sheriff’s Office, and the Barnstable Police Department. As part of that investigation, the Defendant’s laptop computer was seized pursuant to a search warrant.

The Defendant was not arrested at that time. Instead, there was a forensic examination of his computer which allegedly revealed several videos and images of young females being posed in states of nudity and engaged in sexual acts. The Commonwealth says that the videos appeared to have been created during webcam chats the Defendant was having with the young females. The search was on for the girls and, finally, one was found and interviewed.

Now, you may be wondering what the Defendant was doing with himself while the authorities continued their criminal investigation.

Well, according to the Commonwealth, the girl interviewed reported that two months after the Defendant’s computer had been seized, he had contacted her again online, continuing his efforts to get her to take more pictures of herself to send to him.

On February 6th, armed with an arrest warrant, authorities arrested the Defendant in North Weymouth. He has been arraigned in Barnstable District Court on charges of posing a child nude and engaged in sexual activity, possession of child pornography, disseminating obscene matter to minors, and videotaping a nude person without their knowledge.
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