One of the more highly profiled criminal defenses, especially in cases involving murder or attempted murder, is insanity, meaning that the defendant was insane at the time of the crime. This criminal defense strategy is often popularized in movies and by the media and often brings a touch of drama to the courtroom when presented as a viable criminal defense. When facing an insanity defense, juries are disinclined to find for a defendant asserting an insanity defense. Presumably this is because it is very hard to imagine someone committing the alleged crime, especially if it is heinous or shocks the conscious, and not being aware that the crime being committed is wrong.
Mistaken identity is one of the leading causes of wrongful conviction. Mistaken identity is a criminal defense that is raised by a defendant that asserts that a witness, usually an eyewitness, is mistaken in his or her memory that the defendant is the perpetrator of a crime. While the witness may claim to have seen or heard the accused commit the crime, the witness is actually mistaken and the defendant is not the individual that perpetrated the crime.
Several public parks located in Haverhill have recently experienced a rash of sex crimes. There have been reports to local police that men in the Winnekenni and Monument Square parks are acting strangely, even making unsolicited sexual advances towards park-goers. Such suspicious behavior prompted local police to conduct an undercover operation in the parks to learn more about what was going on. Continue reading
John Burbine, a forty-nine-year-old Wakefield man, was arraigned in Middlesex Superior Court Wednesday, and he is facing 100 counts involving alleged sexual abuse and child rape, including 40 counts of aggravated forcible child rape. He was held without bail.
Prosecutors allege that Burbine sexually abused thirteen children, including an 8-day-old infant, between August 2010 and August 2012. Burbine, a Level 1 convicted sex offender, allegedly forced the children to perform sexual acts on him, raped them, made them watch pornography, and took baths with them. The government alleges that Burbine and his wife provided day care services, sometimes for long periods of time ranging from weeks to, in one case, 20 months. The day care center, Waterfall Company, was reportedly unlicensed and offered discounted rates. Burbine’s wife, Marian, was charged with multiple counts of reckless endangerment of a child. Prosecutors said that the investigation into her role in the abuse is ongoing.
Police allegedly found images of the children in states of nudity on Burbine’s computer. It’s also alleged that there were video files on the computer depicting Burbine sexually abusing at least one child. The images were allegedly stored in a file called “Little 2.”
Burbine was convicted of indecent assault and battery on a child in 1989. The Department of Children and Families investigated Burbine in 2005 and 2009 after it was alleged that he sexually abused two young boys. DCF found that the allegations were supported, but Middlesex District Attorney Gerald Leone’s office was ultimately unable to bring charges.
Leone called the case one of the most “chilling” of its kind and said that he had “never seen a case this bad,” according to local news outlets.
In the wake of the Burbine publicity, those who have pushed for stronger sex offender legislation criticized the state government for failing to annually post sex offenders of all levels. Burbine, like other Level 1 offenders, was not listed on the Sex Offender Registry Board website along with the Level 2 and Level 3 sex offenders.
Currently, many Massachusetts cities and towns have municipal ordinances imposing residency restrictions on convicted sex offenders. Some even ban convicted offenders from various public places. The American Civil Liberties Union is suing Lynn over its ordinance, claiming that it is unconstitutional. The Lynn ordinance bans Level 2 and 3 offenders from living within 1,000 feet of a school or park. Attorney John Reinstein of the ACLU points out that the ordinance effectively bans sex offenders from living anywhere in Lynn, as ninety-five percent of the city is within the triggering distance. In October, Peabody passed an ordinance that went even further. It bans Level 2 and 3 offenders from schools, parks, libraries, and other recreational areas. The Peabody ordinance is modeled after a 2008 New Bedford ordinance.
Cases like this Burbine one tend to prompt reactionary, probably unconstitutional, laws. It is important to remember that “tough -on -crime” laws passed in times of public outrage, which the Burbine allegations seem to be bringing on, are rarely effective.
Billerica police arrested seventy-two year old Ernest Frobese late last week for failure to register as a sex offender. Frobese’s pre-trial conference date is scheduled for January 23. A mistrial was declared two years ago after the court found Frobese incompetent to stand trial for failure to register. Frobese was sent to Bridgewater State Hospital to be held until he became competent or for at least 6 months. On Monday, November 5, 2012 Frobese was arraigned and released on personal recognizance.
Frobese was convicted in 1995 for indecent assault and battery on a child, and he is classified as a Level 3 sex offender. Initially, Frobese’s legal guardian would register for him. In 2007, Frobese became obligated to register on his own, and he allegedly failed to do so in 2008. He was tried on the 2008 failure to register charges in 2010. His defense attorney argued that Frobese was not criminally responsible. A psychologist testified in the 2010 trial that while Frobese is articulate and intelligent, he suffers from paranoid delusions.
As a Massachusetts criminal defense attorney, this report raises a number of issues for discussion. One issue involves the government’s burden of proving actual knowledge of the registration requirement. The Appeals Court recently clarified that the prosecution has to prove actual knowledge and that it is not enough that a reasonable person would be aware of the registration requirement. In this case, it could be difficult for the government to prove that element, particularly in light of Frobese’s mental health issues and the fact that his guardian registered for him in the past. An experienced criminal defense lawyer will conduct a careful review of Frobese’s Sex Offender Registry Board (SORB) records for indications that he did not actually know that he was required to register.
Another issue involves competency to stand trial. The due process clause requires that a person understand the charges against him and be able to participate in his own defense. The issue of competency can be raised by any party and at any stage. Defense counsel must consider carefully whether to raise competency issues, as there can be undesirable consequences. For instance, there is no right to bail during the competency evaluation period. A defendant might sacrifice speedy trial rights, and/or he might be committed for a longer time than he would have received as a sentence. Massachusetts General Laws chapter 123, section 15 governs the procedure for competency evaluations. Under section 15(a), the first step is an outpatient evaluation which usually takes place in the court clinic. If the court finds that further evaluation is necessary, section 15(b) provides for commitment for further examination, which should not be longer than 20 days. If, after the inpatient evaluation, there is a real doubt as to competency, the court may hold an evidentiary hearing under section 15(d). It is important to note the distinction between criminal responsibility and competency to stand trial. Criminal responsibility involves state of mind at the time of the crime’s commission, whereas competency to stand trial involves mental condition at the time of trial.
In Frobese’s first trial, he was apparently found incompetent and a mistrial was declared. Where a defendant is found incompetent, the case is stayed until he becomes competent or until the case is dismissed. Here, Frobese was reportedly committed to Bridgewater State Hospital. Bridgewater is for males requiring “strict security,” and as a result, most defendants would tend to prefer commitment to a less uncomfortable facility.
Recently, five men were arraigned on charges of sex for a fee and enticement of a person under eighteen in the Boston Municipal Court after a Boston police sex trafficking sting. Another man failed to appear in court and a warrant issued. Four of the men were released on personal recognizance while one was held on $1,000 bail due to his criminal record. Prosecutors allege that the six accused contacted Boston police officers posing as young girls on the Internet for sex. The men allegedly agreed to meet with the fictional teenage girl at local hotels. Each of the defendants allegedly described their clothing and gave their phone numbers. Once a suspect was in sight, police called the numbers and the defendants’ phones allegedly rang. Prosecutors told local media that a similar sting was conducted in August, after which five men were arrested for allegedly soliciting sex from officers posing online as a 15-year-old.
Under “An Act Relative to Commercial Exploitation of People,” signed into law by Governor Patrick on Nov. 21, 2011, enticement of a person under the age of 18 by electronic communication to engage in prostitution, human trafficking, or commercial sexual activity is punishable by up to 2 ½ years in the house of correction or by up to 5 years in the state prison. “Enticement “ includes any of the following: luring, inducing, persuading, tempting, inciting, soliciting, coaxing or inviting. The offense is considered a sex offense involving a child and a sexually violent offense. The law also created a fund for victims and “safe harbor” provisions to protect child victims from being prosecuted. A second or subsequent offense carries a 5-year mandatory minimum state prison sentence. Massachusetts was ranked among the most improved states in anti-trafficking in the country following enactment of the law. Massachusetts is now ranked in the top four, along with Washington, Minnesota and Texas.
Suffolk District Attorney Daniel Conley told local media that one goal is to reduce the demand for human trafficking. In a Boston police statement, the department said that the Human Trafficking Unit is “committed to ending the exploitation of young people” and will continue to seek out and prosecute those who do so. According to Attorney General Martha Coakley’s office, approximately 27 million people are trafficking worldwide.
Sexual exploitation is the most widely reported type of human trafficking because it is generally more visible, but other more “underground” forms include forced labor, forced marriage, domestic servitude, and organ removal.
The relatively new legislation also targets organ trafficking, which is punishable by up to 15 years in state prison or a $50,000 fine, or both. There has been a rise in human organs, mostly kidneys, being sold on the black market. Organ trafficking involving a person under 18 carries a 5-year mandatory minimum sentence.