Yesterday I received a call from a client. He told me that the police in a certain suburban Boston, Massachusetts town wanted to talk to him about a sexual assault. When pressed he learned that the allegations were hideous – rape of a child. He had absolutely no idea what the police were talking about. He wanted to talk to them and I told him not to under any circumstances. Fortunately the man took my advice. With a little digging we learned more about the allegations. The man is married. He recently caught his wife cheating on him. They have three children together. She applied for a restraining order against him. It was not granted. Consequently she called the police and told them that she had been having sex with him since before her sixteenth birthday. This post articulates reasons why I tell all clients never to talk to the cops. Continue reading →
Local news outlets are reporting that a fifty-six year old Connecticut man has been arrested and charged with child enticement in Massachusetts federal court. The complaint alleges that Paul Hinkel tried to entice a minor into having sex with him. Hinkel responded to a Craigslist post generated by undercover federal agents. The listing directed interested parties to an email address. Email exchanges between Hinkel and someone posing as the minor’s mother disclosed negotiations and plans for completing the act. When the Hinkel arrived at the meeting location he was met by federal agents and arrested. Continue reading →
Browsing the Internet today I saw a story about a twenty two year old man being charged with statutory rape in Massachusetts. The man, Matthew Pos was arrested out of state and is being held pending a rendition hearing. Rendition is the process of one state sending a suspect in a criminal case to the state where the criminal charge is pending. All states have some sort of rendition law. Some people refer to this process as extradition. This post provides a synopsis of how rendition laws work and when they should be challenged or waived. Continue reading →
If you are wondering just how prevalent prostitution cases are in Massachusetts just open you local newspaper. At least once a week you can read about a local prostitution sting. If you want more detail just perform some basic Internet searches such as “prostitution arrest” in “your town”. You will quickly learn that the world’s oldest profession is conducted everywhere. No longer is prostitution simply associated with street hookers parading down the red light districts of major cities. Now, sex is advertised and sold in every town. Just go to Craigslist or Backpage and search for dates or massage services. Manicures and nail services are often code for sexual services as well. Recently, law enforcement has been focusing on flushing out the demand for sex rather than the supply. They do this through “stings”, the subject of this post. Continue reading →
We have all heard the expression innocent until proven guilty. We all know that the proof is on the district attorney to prove beyond a reasonable doubt that the defendant committed the crime charged. We are familiar with those historic words “cloaked with the presumption of innocence”. Yet any time someone is charged with the crime of rape of a child people run and hide from those constitutional protections and principles. Opinions are immediately formed. The defendant is now a pariah. Even judges overlook those bedrock ideologies. The only person someone this position can count on is his criminal defense lawyer.
In almost every case involving child pornography prosecutors in Massachusetts are faced with what should be a difficult decision: to charge possession of child pornography or to charge distribution of child pornography. Let’s look at some common facts. Rarely, if ever is a defendant caught with one image or a few images. This is because child pornographic materials are accessed through file share programs. The files that people receive though peer to peer networks usually contain scores if not hundreds of images. Under Massachusetts law this permits the prosecution to charge the more severe felony, distribution of child pornography. And usually, the prosecution does just that, it charges distribution. However the charge of possession, a lesser included felony is typically charged as well. This post examines why that is done and some thoughts on defending these cases.
At least once a week I get a call from a perspective client who wants to discuss a criminal case that he or she thinks is a classic case of entrapment. While the facts are always different a common theme underlies every story. An undercover police officer is involved in some sort of investigation. The officer is playing the part of a criminal or someone engaged in some sort of wrongdoing. My client takes the bait and enters into discussions and interaction with the officer. Then, either just prior to, or at the time of the consummation of the crime an arrest is made. My client claims to be the victim of entrapment. He’s right isn’t he? After all, he did not know that the person he dealt with was a cop. Shouldn’t they dismiss my case? Nope. This is not entrapment. It might be an underhanded police tactic. It might be a waste of the taxpayer’s money. But it is not entrapment.
Late last week Julie Manganis of the Salem News reported that Joseph Ferrante, a retired Peabody, Massachusetts police officer has been charged with Possession of Child Pornography and Distribution of Child Pornography. Both charges are felonies in Massachusetts.
In September of the year a Massachusetts State Trooper got onto a file-sharing website and obtained information that a Comcast customer was viewing child pornography. The officer subpoenaed the Comcast information and learned that the IP address was registered to Ferrante. With that a search warrant was secured and served on Ferrante’s home last Monday. Ferrante was questioned during the execution of the warrant and admitted that he had viewed the illicit material but denied storing it on his computer. A preliminary search revealed the existence of evidence of the crime on the computer. A more thorough search of the computer will be conducted over the next several months.
Essex County Sex Crimes Lawyer
Being a criminal defense lawyer I have concerns about the representations that Ferrante actually admitted to having committed these very serious crimes. As a former cop he has to know that anything he says will be used to prosecute him. He also has to know that proving these cases is extremely difficult, unless of course the suspect confesses to the crime. Computers in private residences are rarely secured. Family members, guests, friends, etc. regularly go onto a household computer. Thus, proving that the subscriber is the guilty party is difficult. A successful prosecution becomes even more difficult if the IP address is not secured. Anyone within the range of the wireless mechanism can access the Internet if it is not secured. This makes it appear that the subscriber is using the Internet when in fact it is somebody else. This happens more than you may think, particularly in restraining order violation cases where the defendant is being set up by the “victim”. Assuming Ferrante knew any of this you have to wonder why he would admit guilt to the police. Or did he?
I have defended many Child Pornography cases in Massachusetts and on only one occasion did the prosecution attempt to proceed without a confession. In all of these cases the link to the defendant that made the case provable was the defendant’s confession. Again, this shows that nothing good can come from talking to the police. You have a constitutional right to remain silent. It was given to you for a reason. Use it. If you have any doubt call a criminal lawyer. I can assure that the advice will be the same. Keep your mouth shut.
Today’s Somerville Patch reports that a woman had been advertising her services over the Internet. Specifically, she offered sex for a fee. Her advertisement listed the Washington Street Holiday Inn in Somerville as her place of business. An undercover detective responded to the listing and met up with the woman in her hotel room. She requested one hundred twenty five dollars for one half hour of sexual services and two hundred dollars for a full hour. The woman, a sixty year old from Randolph, Massachusetts then took off her clothes, provided the undercover with a condom and laid out some rules for the encounter. She was then arrested and charged with sexual conduct for a fee, also known as prostitution.
I get calls on cases like this one from perspective clients on a regular basis. Several of them ask me the same question: “Isn’t this entrapment?” The answer is no. People think that police officers conducting covert operations that result in an arrest is entrapment. It is not. Entrapment is a defense to criminal charges that focuses on the predisposition of the accused. It is not entrapment for police officers to entice a prostitute or drug dealer into performing or attempting to perform their services. If the person is predisposed towards the commission of a crime and the police simply facilitate their efforts entrapment has not occurred. Entrapment is a viable defense where the government or its agents overcome the will of a person and in some way coerce them to commit a crime.
On several occasions I successfully represented people accused of trafficking cocaine with an entrapment defense. On one occasion I represented a recent college graduate (Jim) who enjoyed smoking marijuana and sometimes snorting lines of cocaine. One of his “friends” would share with him a small amount of cocaine. Unbeknownst to Jim the “friend” was actually an informant, trying to work off a pending drug case. The informant had convinced his handler, a state trooper, that Jim was a major drug dealer. In order to work off his case the informant had to produce, or, in this case introduce the trooper to a drug dealer and to actually access drugs.
So one day the informant brought the trooper over to meet Jim. The trooper was introduced as a cocaine supplier. During the meeting the trooper pulled out a small quantity of cocaine, similar to the amount that the informant would share with Jim. Jim and the informant snorted a few lines. The next day the informant called my client and told him that the individual he had just met wanted a large amount of cocaine and that he wanted Jim to get it for him. Jim was confused and wanted to know why this person would think he could get him a large quantity of cocaine. Jim said that he had no interest in this proposition. Over the course of the next several months the informant badgered and threatened Jim. He convinced Jim that the person who had given him some cocaine, the trooper, was dangerous and that Jim owed him. A record of hundreds of telephone calls was produced from the informant to Jim. The calls were made at all hours of the night. The informant incessantly harassed Jim and had him fearing for his life. Consequently, Jim gave in and agreed to produce a large quantity of cocaine. The informant introduced Jim to a major drug dealer and a deal with the undercover was ultimately consummated. Jim was arrested and charged. We were able to show that the government’s harassment of Jim overcame his will and forced him into the drug deal. Jim was acquitted before a Suffolk County jury.
Earlier this week an article circulated via UPI talked about an evolving test that Massachusetts prosecutors will undoubtedly be using to help prove their cases. X-ray photoelectron spectroscopy, commonly referred to as XPS, looks at individual cotton fibers that contain distinct chemical traces on their surface. The chemicals are used in the treatment and manufacturing process of cotton garments. The XPS process helps to distinguish cotton fibers that through microscopic examination were thought to be indistinguishable. The chemicals in question are used to make the clothing article wrinkle free, resistant to staining or waterproof. Through XPS these chemicals can be identified on the surface of the individual fibers.
I imagine that once XPS testing is “perfected” this science will become prevalent in Massachusetts courts, particularly in serious felonies being prosecuted in the superior courts. I say this even though I do not believe that using XPS experts will be beneficial to the district attorney. Here is why. Prosecutors will want to test fibers to see if a match can be made to clothing worn or owned by the accused. At least initially, if there is a match there will be an argument that this link to the defendant corroborates other evidence in the case. This strategy will ultimately appear desperate. In general the fibers we are talking about and their processing and manufacturing treatments are not typically unique. Clothing is mass manufactured. In many cities it is common for youth to be wearing the same or similar clothing made by a particular company. For instance, for years black hooded sweatshirts made by a particular sporting goods company were the wardrobe of choice in certain parts of Boston and other major cities. You could walk down the street and see scores of youth wearing the same articles of clothing, same make and same logo. So how then does this more effectively link a particular defendant to a crime scene? It probably doesn’t and defense lawyers will quickly pick up on this as a challenge to the significance of this evidence.
Then why would prosecutors get into XPS testing at all? The trend among prosecutors in Massachusetts for more than a decade now is to introduce evidence known to have little significance if they believe that the defense will comment on its absence otherwise. For example, in murder cases where DNA is not an issue a prosecutor may nevertheless call a DNA expert to testify that certain evidence could not be tested for DNA. The same logic applies to fingerprinting and testing blood samples. So, once XPS testing becomes a household term we will see prosecutors, through their expert witnesses discussing this process. This will apply whether or not XPS testing was done and regardless of the test results. Thus, it will be important for Massachusetts criminal defense lawyers to familiar themselves with this process whether or not they use it.