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December 30, 2013

Massachusetts High Court Strikes Down Mandatory Sentence of Life Without Parole For Juveniles

Until last week, Massachusetts' statute imposing a mandatory sentence of life without parole for those convicted of first degree murder applied equally to adults and juveniles who were under the age of 18 at the time of the crime. However, interpreting a 2012 decision from the United States Supreme Court, the Massachusetts Supreme Judicial Court ("SJC") has held that denying such juveniles the opportunity to be considered for parole is unconstitutional under both the federal Constitution and the Massachusetts Declaration of Rights.

In 1981, Gregory Diatchenko, who was 17 years old at the time, stabbed a man nine times, killing him. Diatchenko was convicted of first degree murder and was sentenced to a mandatory term of life in prison without the possibility of parole. The sentence ensured that Diatchenko would die in prison.

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April 12, 2012

5 Former New Orleans Police Department Officers Sentenced in Post-Katrina Shootings

Multiple news outlets reported that, on Wednesday April 4, 2012, varying prison sentences were ordered by Judge Kurt D. Englehardt of the Federal District Court for the Eastern District of Louisianna. Judge Englehardt ordered federal prison sentences ranging from six years to sixty five years in response to the guilty findings of five ex-New Orleans Police Department Officers that shot six unarmed civilians two days after Hurricane Katrina. Two of the unarmed civilians were killed, and the ex-officers were apparently involved with wide ranging cover-ups to obstruct the investigations in relation thereto.

A number of ex-officers that were directly involved with the shootings and the subsequent cover-up previously entered pleas of guilty, and were ordered to serve significantly reduced prison sentences in return for their guilty pleas and testimony offered at the trials of the remaining co-defendants.

The evidence painted an alarming and tragic story of police misconduct in the immediate aftermath of one of the nations' most severe natural disasters. On September 4, 2005, as most of the city of New Orleans lay submerged in flood waters caused by Hurricane Katrina, members of the New Orleans Police Department responded to distress calls from the area of the Danziger Bridge in the eastern part of the city. Immediately upon arrival at the scene, officers began shooting, apparently indiscriminately, at numerous individuals that were desperately searching for food and shelter. A number of the victims were shot in the back as the attempted to flee the unprovoked assault.

Evidence further showed that the broad cover-up attempt included fabricated witnesses and a planted hand gun.

Before ordering the federal prison sentences, Judge Engelhardt condemned the mandatory minimum sentences that were linked to the charges involved because of the chilling effect these sentencing requirements have on the discretion of the Judge to analyze the totality of the circumstances, both aggravating and mitigating, in an attempt to reach the most equitable sentences. Judge Engelhardt further expressed displeasure by the significant range in sentences meted out, and the plea deals that were entered into by the federal prosecutors with cooperating witnesses.

Analysis by Parker | Scheer LLP Attorney Vincent A. Tofani:

Taking a moment to step back, away from one of the most troubling and tragic examples of police misconduct that I have ever heard of, I would like to address Judge Engelhardt's apparent displeasure with mandatory minimum sentences. As an experienced criminal defense attorney, specializing in drug trafficking offenses, I often grapple with the pitfalls associated with mandatory minimum sentences.

Most common, pursuant to the Massachusetts General Laws, a "School Zone" count carries a mandatory minimum sentence of two years, to be served consecutively to any sentence(s) ordered for the underlying offense. As a criminal defense attorney practicing in the densely populated cities comprising the greater Boston area, in my experience a "School Zone" count (essentially when a drug offense other than simple possession occurs within 1,000 feet of a school or 100 feet of a park) is applicable more often than not. This provides the prosecutor with substantial leverage when negotiating with a criminal defense lawyer, to determine whether the respective parties can favorably resolve a criminal matter prior to trial because of the severe implications that a school zone count carries.

I share Judge Engelhardt's concerns regarding sentencing guidelines that remove the discretion of the judge because I have never encountered two clients or two cases that are exactly the same. In most cases, an experienced criminal defense lawyer will identify mitigating circumstances involved in the criminal charges that their client faces. But, when a charge carries a mandatory minimum sentence, the judge has absolutely no discretion to take into account the unique circumstances that exist in every case, whether aggravating or mitigating.

I can appreciate the argument that harsh mandatory sentences act as an effective deterrent against the prohibited conduct. Notwithstanding, I believe that it is more important to afford judges in the Commonwealth of Massachusetts with discretion to order equitable sentences after taking into account the totality of the circumstances. Every individual is exactly that: an individual, with a unique background and circumstances. Mandatory minimum sentences ignore this fundamental concept that is inherently intertwined in every criminal case. Accordingly, a judge's ability to exercise his or her discretion when determining a sentence is an essential element in reaching an equitable result.

For a more comprehensive discussion regarding "school zone" counts pursuant to Massachusetts General Laws, please click here.

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September 22, 2010

'Craigslist Killer' Philip Markoff Wrote his Ex-Fiancee's Name in Blood as he killed himself. Case Raises Serious Issues About Prostitution In Massachusetts and Rhode Island.

"Megan." The name of his ex-fiancé. This is the dying word of the now-infamous Craigslist Killer - Philip Markoff, a former Boston University Medical School student. Even more eerie, he killed himself on the date that would have been the first anniversary of his wedding to his ex-fiancé.

His intricately planned suicide, which took place while he was in Suffolk County Jail (Nashua Street Jail) awaiting trial, leaves more questions open than answered. Markoff used a razor to slash his major arteries in his ankles, legs and neck. He used the blood from these wounds to write the name on the wall of his jail cell. He also stuffed toilet paper down his throat and covered his head with a plastic bag to prevent emergency resuscitation. He covered himself in a blanket and then died.

It wasn't until a few cell checks had happened, that the deputy sheriff noted that Markoff's body beneath the blanket had not moved in a while, so he performed a safety check. What he discovered would shock even the most experienced prison guard. A source at the Nashua Street Jail said the deputy sheriff described the scene as a "bloodbath."

Markoff became the Craigslist Killer following the connection to the armed robbery and murder of Julissa Brisman in a Boston hotel on April 14, 2009. Markoff was also connected to an April 10, 2009 armed robbery of a prostitute in another Boston hotel. In April of 2009, Markoff placed a personal ad on the Craiglist's adult section to attract an adult masseuse. Julissa Brisman, a New York model and internet masseuse, responded and the two met up at the posh Marriott Copley Place Hotel. Brisman's body was discovered soon after the shooting; she had been shot and robbed of money. Fellow hotel guests reported hearing screams from the 20th floor. When discovered, she was lying in a pool of blood, with several bullet wounds and plastic wrap on her wrists.

According to the prosecutor in the case, Markoff allegedly "trolled craigslist for women he could rob in hotels" which may have been motivated by a gambling problem. Even though Marokff maintained his innocence through all charges and pled not guilty, a grand jury indicted him for 1st Degree Murder, armed robbery and other charges.

This case caught the attention of media and the public across the country. It also raised questions about prostitution and craigslist. Before the April 2009 murders, online prostitution was an underground industry. Following Markoff's arraignment, Craigslist (the public community website offering anything from apartment listings, items for sale, jobs, to personal ads) changed the name of its "erotic services" section to "adult services." Craigslist representatives also stated that more employees would review posted ads and target those being used for illegal prostitution.

However, these efforts may not be enough. According to police and anti-sex-trafficking advocates, the internet, craigslist in particular, has become the preferred place for Johns (a person seeking the services of a prostitute) to scope out their female escorts. In fact, anti-trafficking advocates have been quoted as saying: "Craigslist is like the Wal-Mart of online sex trafficking right now in this country." Quite a bold statement. The anonymity of the internet allows underage girls to advertise under fake names and lie about their age. Prostitution has never been legal in Massachusetts, but its neighbor, Rhode Island, only just outlawed the selling of sexual services. Between 1980 and 2009, no law on the books in Rhode Island defined prostitution or outlawed it. However, associated crimes such as running a brothel and pimping were illegal during these times. It wasn't until November 3, 2009 that Governor Donald Carcieri of Rhode Island signed into law the bill that defined and outlawed all prostitution in the state.

The changes in Craigslist's format came after a multistate attorney general taskforce, including Massachusetts, Connecticut, Rhode Island, Illinois, and other states, pressured Craigslist with lawsuits if it didn't take stricter action to prevent online prostitution. To prevent the lawsuits, Craigslist founder Craig Newmark, created the adult services section and claims that each ad is manually reviewed to prevent prostitution and potential pornography involving minors.

Together, the Craigslist Killer murder and robbery coupled with the multistate attorney general taskforce has put online prostitution on the front pages of media across the country. It has caused a serious dialogue about the safety of women and how prostitution affects communities. It has also caused law enforcement, both police and prosecutors, to change strategies to eliminate illegal prostitution. Simple street corner sting operations in some areas may be replaced with internet-savvy detectives impersonating underage girls advertising sexual services. This also means the evidence in prostitution crimes has changed. Instead of live testimony, juries may have to analyze emails, instant messages, personal ads, and even erotic pictures.

Craigslist Date with Murder for N.Y. Beauty Julissa Brisman, Model & Internet Masseuse Shot in Hotel

'Craigslist Killer' Philip Markoff Wrote Ex-Fiance's name in Blood as He Killed Himself

Is Craigslist Doing enough to Block Prostitution?

Craigslist to Replace "Erotic Services" in Wake of Craigslist Killer, Prostitution Charges

June 30, 2010

Justice is Served: Shooter gets Life in Prison

Back in January 2008, Jesse "Fat Jesse" Camacho,22, went on a shooting spree inside a barroom, injuring two people and killing 28-year-old Jeffery Santiago. After two years of trying to track down the killer and a crucial witness, both of whom fled the country at different times, investigators are finally able to put Camacho behind bars. At last, the Santiago family can feel some relief in that Camacho will never walk the streets again as a free man as today Camacho was sentenced to life without parole.

Boston Herald, June 30th 2010 Killer Gets Life in Prision

Please contact the established criminal defense lawyers at Parker Scheer, if you or someone you know needs representation.