civil-rights-law

[civil-rights-law]

Photo: Fred Weichel and his legal team after the $33 million verdict (from left to right: Carmen Guhn-Knight, Monica Fuentes, Quinn Rallins, Fred Weichel, Mark Loevy-Reyes, and Howard Friedman)

Yesterday, jurors in the Suffolk Superior Court awarded our client, Fred Weichel, $33 million as compensation for the nearly 36 years he spent in prison as an innocent man. Fred will only receive $1 million because Massachusetts’s erroneous conviction statute has a cap. Still, the jurors’ verdict sends a message that Fred has waited over four decades to hear: We believe Fred Weichel is innocent.

Fred was wrongfully convicted of the murder of Robert Lamonica in Braintree in 1981. Over the course of his 2.5 week trial, Fred and his legal team showed the jury evidence of Fred’s innocence. We presented multiple alibi witnesses placing Fred miles away, in Boston, at the time of the murder. We presented evidence that the lead police investigator had tunnel vision and decided Fred was his suspect without doing a proper investigation. This police investigator then lied to the grand jury, claiming that four witnesses identified Fred as the man they saw running from the murder scene. In fact, only one witness identified Fred, but that witness was an intoxicated teenager who saw a man running fast, in the dark, for about 1-2 seconds, from 175 feet away. At trial, we demonstrated that it would have been impossible for the witness to identify the running man from that distance.

The Attorney General’s office, which represented the Commonwealth of Massachusetts in this lawsuit, tried to convince the jury that Fred was the murderer. They also argued that even if he wasn’t the murderer, he still didn’t deserve compensation because he couldn’t prove that he didn’t help the real murderer or commit some other related felony. As Fred said, “The jury didn’t buy it. I was just framed. It’s that simple.”

To learn more, check out Channel 5’s interview of Fred after his victory: https://www.wcvb.com/article/boston-fred-weichel-wrongful-conviction-lawsuit-jury-verdict-oct-18-2022/41694322

[civil-rights-law]

With great sadness, we share the news that our client and friend Lawyer Johnson has passed away.

Lawyer’s life embodied an important chapter in the civil rights movement. Lawyer, a black man, was wrongfully convicted of murdering a white man in 1972. Racial bias permeated Lawyer’s trials. Originally sentenced to death, Lawyer served ten years in prison before being freed. He described this experience as a “legal lynching.”

Howard was a first-year law student when he first met Lawyer during Lawyer’s second criminal trial. Eventually Howard’s former law partner, Michael Avery, won Lawyer’s freedom on a motion for a new trial. Then our firm represented Lawyer on his compensation claim under state law for his wrongful conviction.

During the ten years Lawyer spend unjustly incarcerated, he found hope in meditation, advocating for the rights of people in prison, and art. Lawyer was a skilled artist, creating detailed and deeply symbolic works.

After gaining his freedom, Lawyer committed himself to opposing the death penalty and fighting racism. He promoted the Massachusetts erroneous conviction bill that would eventually allow him to gain some compensation. He was an active member of Witness to Innocence and Massachusetts Citizens Against the Death Penalty. He shared his story to high schoolers, college students, law students, community forums, politicians, and people at anti-death-penalty events across the country.

We are grateful to Lawyer for inspiring meaningful change in our criminal legal system. We are motivated by Lawyer’s eternal optimism and belief that a better world is possible. Thank you, Lawyer Johnson.

[civil-rights-law]

Howard was quoted in this Boston Globe article: Michelle Wu was asked about Patrick Rose’s internal affairs file. Her answer raises more questions.

In 1995, an internal Boston police investigation found that officer Patrick Rose likely molested a child. The department allowed him to keep his job and continue to interact with children. He recently pleaded guilty to molesting half a dozen children over his career as a police officer and police union president.

The Globe reports that Mayor Wu has not yet viewed the full internal affairs investigation of Rose. Howard and other experts agree that there is no reason why Mayor Wu should not be able to view complete, unredacted documents. Wu has not offered an explanation, leaving a question as to whether the barrier stems from state law, the police union, or the police department.

Keeping internal affairs investigations secret is a way to hide police misconduct from public view. Keeping the results of an investigation from Mayor Wu prevents her from being able to do her job. She needs to understand what happened in the past to prevent it from happening again. Patrick Rose pleaded guilty to 21 counts of child rape and sexual assault over a 27-year period. Secrecy allowed him to continue to abuse children. The City has a strong interest in making certain the system does not continue to protect police officers who have molested children.

[civil-rights-law]

Howard is recognized for his work in Civil Rights Law

Howard’s peers selected him to be recognized in The Best Lawyers in America© 2022 in the field of Civil Rights Law. Howard received this award for professional excellence because he successfully handles civil rights cases for clients with complaints of police misconduct, injuries due to police brutality and excessive force, false arrests, wrongful convictions, illegal strip searches, violations of prisoners’ rights, and more.

[civil-rights-law]

Howard is quoted in this WBUR new story: Janey Promises Transparency, But Withholds Records Of Boston Police Officers Accused Of Misconduct.

After two high-profile scandals involving leaders of the Boston Police Department—Commissioner Dennis White and former patrolman’s union president Patrick Rose—Mayor Kim Janey repeatedly promised to be more transparent about police officers who are accused of misconduct. She has not yet followed through on this promise. WBUR requested public records about officer misconduct over three months ago, and the City has not responded although the public records law requires a response within 10 business days.

The withheld police misconduct records include information about 13 officers who were found to have committed domestic violence. Howard Friedman, other civil rights attorneys, and advocates for sexual assault survivors are quoted as criticizing this secrecy. Laws designed to protect the identity of victims of sexual assault should not be used to protect the identity of police officers accused of sexual assault, particularly when a complaint is sustained against an officer. Access to these police misconduct investigations is necessary for the public to hold police officers accountable.

[civil-rights-law]

Kathy Curran at 5 Investigates reports on our case: New evidence in death of young man in back of Massachusetts transport van; Witnesses say their warnings of Sam Dunn’s dire medical condition were ignored. 

This case is scheduled for trial in 2022.

[civil-rights-law]

Howard is quoted in this news story: 4 key takeaways from Hearst CT's investigation into the secret world of police officer misconduct.

This thorough investigation of Connecticut police officers’ misconduct found that officers typically receive light punishments, complaints of misconduct are often dismissed, and police departments are not transparent about their officers’ histories of misconduct. The investigation found that these problems exist in part because police disciplinary rules are written by the police, both through union contracts and internal rules of conduct.

To be held accountable for their misconduct, police officers need progressive discipline. As Howard says in the article, “You can’t keep giving a reprimand.” Police disciplinary records should be made public so that community groups and the public can review misconduct allegations, the findings, and the discipline imposed. The public needs to know the officer’s prior discipline as well to ensure the police internal investigation unit is working properly.

Police departments in Massachusetts share the same problems that this investigation identified in Connecticut. In both states there are instances of officers being fired for their misconduct, but then reinstated by an arbitrator. One example from Massachusetts is officer David Williams, who was twice fired by the Boston Police Department. The first time, he badly beat a fellow officer in plainclothes, thinking he was a civilian. The second time, he used a chokehold on our client and then lied about it. Both times, an arbitrator overturned the Boston Police Commissioner’s decision to fire Officer Williams. Arbitrators should have less authority to override disciplinary decisions and to determine what constitutes excessive force.

[civil-rights-law]

This article is a must-read for Boston-area residents and anyone interested in the Boston Police Department’s blue wall of silence.

An independent investigation into the newly appointed Boston Police Commissioner reveals that police officers who took domestic violence allegations against a fellow officer seriously in the 1990’s suffered retaliation. Most officers refused to cooperate with the investigation. The Acting Mayor says the investigation “revealed a culture of fear and silence in the Boston Police Department.” There must be a change in police culture. 

[civil-rights-law]

We sued Barnstable Police for killing a man in need of medical care by restraining him facedown and applying pressure as he struggled to breathe. 

On April 16, 2019, two Hyannis police officers were called to Robert Miller’s home for a “mental health emergency.” Our lawsuit alleges that although Mr. Miller had not committed a crime, did not threaten the officers, and was not holding a weapon, Officer Sean Roycroft approached him from behind and put him in a “seatbelt hold.” 

Officer Roycroft brought Mr. Miller to the floor so Mr. Miller was face down with his arms under his body and Officer Roycroft on top of him. Mr. Miller struggled to breathe. He tried to lift himself up. Then Officer Roycroft applied pressure to Mr. Miller’s back “to keep him from getting up.” Mr. Miller cried out for help. Officer Roycroft and Officer Spencer Jackson eventually handcuffed Mr. Miller with his hands behind his back. Then they noticed he was not breathing. His pupils were fixed and he had no pulse. Mr. Miller died on the floor of his home due to the actions of the police officers.

[civil-rights-law]

Howard is quoted in this article. As the new executive director of the city’s Office of Police Accountability and Transparency, Stephanie Everett must try to fix Boston police department’s secretive internal affairs system.

The police union is likely to resist any oversight by the City of Boston. The union protects its members without regard for the public interest. We now know that former Boston police union leader Patrick Rose was investigated for sexually abusing a child in 1995, was allowed to keep his job and continue interacting with children as a patrolman, and now faces 33 counts of child abuse. As Howard says, “It seems to me hard at this point for the union to say, as their president did recently, that there are problems in other departments but not ours.”

[civil-rights-law]

In Denver in 2014, a man filmed the police as they punched a suspect in the face 6 times and tossed another person to the ground. The police had been trained that civilians have a right to record public arrests. In direct violation of the law and their training, the officers took the man’s tablet and tried to delete the video of their misconduct.

The court granted Qualified Immunity, which shields the police from legal accountability, because there wasn’t a previous court decision in that circuit that was similar enough to the facts of this incident. Qualified Immunity hinges upon on having a previous legal case with similar facts instead of considering officers’ training, common sense, or the fact that they knowingly violated laws. This article describes the problems with this “clearly established law” test. There are twelve circuit courts; six have held this constitutional right to record the police exists. None of the circuit courts have held there is no constitutional right to record. Other courts, like the 10th Circuit here, only decide the right has not been clearly established in their circuit. As a result of the court’s failure to address the right to record, the next person arrested for recording the police in the 10th Circuit will also lose due to qualified immunity.

Qualified Immunity is supposed to protect police officers unless they know they are violating the law. This case shows that even plainly incompetent officers are shielded. In order to more effectively hold police accountable when they violate people’s rights, we must end qualified immunity.

[civil-rights-law]

We recommend this article from the Boston Globe: Police have long had a haphazard, lax response to domestic violence within the ranks. Police departments have a documented culture of protecting and giving special treatment to their officers. This protection extends to officers who commit domestic violence. When a police officer is accused of abusing their spouse or a family member, it’s not uncommon for the officer to have minimal or no consequences. This article describes several examples from the Boston Police and the Massachusetts State Police.

Following nation-wide protests about police violence in the summer of 2020, Mayor Walsh commissioned a task force to recommend improvements the Boston Police Department. One of the recommendations was to classify acts of domestic violence by Boston police officers as uses of excessive force. This would better allow the department to track problem officers. As the article describes, however, this change has not yet been implemented and may never be. This change would publicize the names of officers accused of domestic violence, but the Boston Police want to protect these police officers by claiming that a privacy law applies. This is an outrage; privacy laws were designed to protect the victim, not the abuser. Public pressure on police departments must continue for real changes to take effect.

[civil-rights-law]

It is big news when a judge does not believe a police officer and finds him guilty. In Sergeant Hanley’s case, the judge called his testimony an “utter fabrication” that contradicted the video. When a police officer is found guilty, they rarely spend time in jail. That was true here. This is a small crack in the code of silence. As video evidence becomes more common—through body cameras, witnesses’ cell phone videos, and laws that protect the right to film the police—perhaps we will see more instances when judges or police officers acknowledge that an officer has lied about their misconduct.

[civil-rights-law]

MCLE program: “1st Look" at the Massachusetts Police Reform Legislation: New standards, commissions, and criminal offenses

On April 5, Howard will be chairing an MCLE program titled "1st Look" at the Massachusetts Police Reform Legislation: New standards, commissions, and criminal offenses. There will be many changes in the law when this bill becomes effective in July. The speakers will be:

·       William N. Brownsberger, Esq., Senate Chair, Joint Committee on the Judiciary, Boston

·       Andrew J. Gambaccini, Esq., Reardon, Joyce & Akerson, PC, Worcester

·       Hon. Geraldine S. Hines, Supreme Judicial Court, Commonwealth of Massachusetts (Ret.), Boston

·       Brian A. Kyes, Esq., Chelsea, City of/Police Department, Chelsea

If you are unable to attend the live webcast on April 5 from 2:00 – 4:00 pm, there will also be recorded webcasts on April 20 at 12:00 pm and on April 28 at 10:00 am.

Learn more and register for the program here.

[civil-rights-law]

Howard is quoted in this article: Walsh administration refuses to release internal affairs files of embattled police commissioner.

On the day Dennis White was appointment Boston Police Commissioner, the Boston Globe made a public records request for his internal affairs files. The City denied access to the records, claiming that the release of the records would compromise their new investigation into the old allegations of White’s domestic violence. The Globe appealed to the Supervisor of Records, who ruled that the city’s denial did not meet the legal threshold.

Howard is quoted as saying that government agencies use delay as a tactic. If they delay long enough the story that caused the request may no longer be news. Our firm has sued the City of Boston when they have delayed in providing public records and failed to comply with rulings by the Supervisor of Records.

[civil-rights-law]

We recommend this article about a Massachusetts State Trooper who was not charged with a crime by police officers in Las Vegas because he is a police officer: ‘Professional courtesy’ snares trooper in internal affairs probe. 5 Investigates learned through public records and body camera footage that former trooper Andrew Patterson was involved in an intoxicated confrontation at a Las Vegas hotel. After learning he was a police officer, the Las Vegas police offered to escort him out instead of arresting him. “Yeah, we’re all good. We’re all cops, relax,” said one officer. The Massachusetts State Police later learned about the incident from Las Vegas’s Internal Affairs department, which was investigating the misconduct of its own officers.

Police officers should not get free passes to commit crimes. Police officers should be held to a higher standard of conduct than members of the public because they carry guns and are granted considerable power. Yet, “professional courtesy” results in officers being held to a lower standard. It leads police officers to feel the law does not apply to them.

After a second incident in which Patterson was accused of masturbating in his seat at Gillette Stadium, he resigned from the Massachusetts State Police. He will collect a $65,000-a-year disability pension for the rest of his life.

[civil-rights-law]

Howard is quoted in two articles about police officers and domestic violence

Howard is quoted in two articles about police officers and domestic violence. 1999 Court Records Detail A Messy Divorce, Abuse Allegations For New BPD Commissioner. On his third day on the job, new Boston police commissioner Dennis White was put on leave pending an investigation of past allegations of domestic violence. The Boston Police Department knew about the allegations from 1999 but it is unclear if they initiated an internal investigation. As Howard comments in the article, it’s not unusual for officers not to have consequences based on allegations of domestic violence. In February 2020, the Boston Globe reported that Boston Police Captain Timothy Connolly was charged with domestic violence. A few weeks later the Globe reported the case was dismissed. There is no record of a finding after an internal affairs investigation.

This story by Boston 25 expands on the problem of holding officers accountable for domestic violence: Civil rights attorney: domestic violence allegations against police among toughest to report. Howard was surprised to learn that the Boston Police Department protects the names of police officers who were alleged to have committed domestic violence. Privacy laws should protect the identity of the victim but not the abuser, particularly if the abuser is a police officer or public official.