The Law Office of Michael L. Rich

FDA Regulation and Parental Rights in Artificial Insemination

2012-01-27T10:15:00.004-05:00

The Just Families blog of New York Law School's Diane Abbey Law Center for Children and Families posted the article at the link that follows about a trend of couples sidestepping fertility clinics to find sperm donors: Online Sperm Donation

I posted the following comment there based on the first few legal thoughts* I had reading the article:

Would the FDA still think it had a right to regulate the transaction if the donor made his donation directly without the intervention of the husband? What if it were a loveless marriage and the husband was the donor the only intention being to make the wife pregnant, does that still invoke the regulatory powers of the FDA?

Regarding the presumption of legitimacy - my research suggests that those laws have nothing to do with the use or not of a physician but predate artificial insemination and create a rebuttable presumption that the husband is the father of a child born during (or in the case of Massachusetts within a certain time frame before or after) a marriage. It is to protect the child from being fatherless or being declared not the child of the mother's husband unless there is evidence presented that bursts the presumption and it is in the child's best interests to declare the genetic father to also be the legal father.

I know some state laws and AID contracts limit the right of the sperm donor to assert his parentage, but for the best interests of the child, it would seem that limiting the presumption to physician-assisted sperm donation would be counter-productive.

More thoughts:

What about this kind of transaction takes it out of the Griswold v. Connecticut or Belotti v. Baird privacy realm that permits the FDA to be involved?

Forgetting about the FDA regulation issue, what are the pure Family Law / Parental Rights issues involved? Do state laws adequately deal with the issues involved in sperm donation? Can the parties to the transaction write an agreement that would be sufficient to foreclose the donor from having any rights or obligations regarding the child? Would it be legitimate for the parties to deal with each other anonymously with fictitious names and proxy email addresses?

Has the law of parenting fallen too far behind technology to adequately address these issues? Should the law ignore technological advances until it catches up? Are there issues of morality aside from the legal issues? (That is, is there something malum im se, wrong in itself, rather than malum prohibitum, wrong because it is illegal, that needs to be addressed here?)

* I had other initial thoughts based on the title of the article that were of a practical rather than legal nature that I didn't post on the Just Families blog mainly around the question, "How do you get the sperm into the Internet for online donation?" When I read the article, I understood that it was the offer of the donation service only that are made online and the couples travel to where the donor is to consummate the transactions.

Leaving 3 year old in car for 13 minutes is not neglect

2011-10-01T07:57:00.002-04:00

This New Jersey court is as good at overturning their child protective services agency's findings of neglect as the Massachusetts courts are at upholding them:

Dept. of Children Youth & Families v. A.S., New Jersey Superior Court Appellate Division, decided 9/29/11

Three year old wanted to stay in car to continue watching DVD while mom did some last minute barbecue shopping at big box store. Mom left her strapped in her car seat, the doors locked, the car started with remote start and the air conditioner on for 13 minutes. Child was unfazed when police arrived, police could not get car doors opened. DCYFS found her neglectful. So did the administrative hearing.

But, citing the statute and a couple of other New Jersey cases that also reversed neglect findings, the court reversed and ruled in favor of mother.

Thanks to Leagle.com for posting this unpublished, per curiam decision.

SCOTUS overturns CA9 on Warrantless CPS interrogations

2011-05-26T12:21:00.004-04:00

The U. S. Supreme Court issued its decision today in Camreta v. Greene. Read the full decision here:
http://www.supremecourt.gov/opinions/10pdf/09-1454.pdf

This is the 9th circuit case in which the circuit court found a Fourth Amendment violation based on a CPS worker and Sheriff's deputy's warrantless interrogation of a then 9-year-old at school. The 9th Circuit, though finding the violation, found that the official had qualified immunity since the law was unclear before. The deputy was granted cert in the U.S. Supreme Court.

The Supreme Court ruled it could review the appellate court's constitutional decision, even though Camreta was the prevailing party below, based on qualified immunity. Nevertheless, the Court held the case is moot, because Greene has no continuing stake in the controversy. Consequently, it vacated the portion of the 9th Circuit opinion that imposed the warrant requirement.

Justice Kagan wrote the majority opinion in which Roberts, Scalia, Ginsberg and Alito joined. Scalia wrote a concurring opinion. Sotomayor, joined by Breyer wrote an opinion concurring in the result, but opining that the court should have decided only that the case was moot and vacated the judgment below. Kennedy, joined by Thomas, wrote a dissent concluding that Camreta as a "prevailing party" should not have been permitted to appeal the constitutional decision below, which he describes as "obiter dictum".

Thanks to the NACC yahoo group for notice of and the link to the decision and to members of the group for the concise summary quoted above.

Federal Jury in San Jose, CA Awards $3.25 Million in Damages to Family for Unlawful Seizure of Their Children

2011-04-06T07:37:00.002-04:00

Federal Jury in San Jose, CA Awards $3.25 Million in Damages to Family for Unlawful Seizure of Their Children

When Schools' Zero-Tolerance Policies Make Zero Sense

2011-02-03T06:06:00.003-05:00

High school student expelled for blowing pieces of paper at classmates through a tube pen. Read the full article from Legal Blog Watch here.

School official hits nerve with spank talk

2010-08-09T17:23:00.001-04:00

School official hits nerve with spank talk

What do you think?

Details of Temporary Custody Hearing in Orlando paper or And Yet Something Else Not to Do to Your Child

2010-07-21T06:50:00.002-04:00

The "Yet Something Else Not to Do to Your Child" in the article linked below is shoot him. Yes, you read that right, a father is alleged to have shot his own son.

Ocoee father shooting son: Judge says mother of teen shot can't protect her children - OrlandoSentinel.com

The horrendous circumstances depicted in the headline caught my attention. I think you knew already that parents should NOT shoot their children. That's not why I posted the article.

I have often thought that child protective services (CPS) agencies (the Department of Children and Families, DCF, formerly DSS, in Massachusetts) overreach in bringing "failure to protect" cases. I went to read the details in the article thinking I would find myself objecting with statements such as, "What more did they expect her to do? How could she have predicted that?" But the article convinced me, as the Florida DCF lawyer convinced the Orange County (FL) judge, that this was probably a reasonable failure to protect case.

That's not why I posted the article.

Two things really caught my attention:

1. The reporter seems to have been in the courtroom. She published details about the allegations and comments about what the attorneys said.

In Massachusetts, child protection cases are closed to the public. We might get a snippet in the news about the police bringing DCF into a case when they find children in a "house of horrors" or when parents are arrested. But we don't get to see inside the CPS system -- the public doesn't know how it is decided whether children are released to their parents or placed.

2. The article said that the children were upset when told they wouldn't be going home and it has comments about what the parents' attorneys said. Nothing was said though about what the children's attorney said.

In Mass children's counsel are supposed to follow their clients' expressed wishes or, if the child is too young or otherwise incompetent for reasons other than just minority, use substituted judgment to determine what the children would want if they were competent.

Hmm, on third thought, did the children need to be taken away from the mother?

The Declaration of Independence

2010-07-04T08:37:00.003-04:00

The Declaration of Independence

In Congress, July 4, 1776

The unanimous declaration of the thirteen United States of America

July 4, 2010

WHEN in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object, evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the People.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States, for that purpose obstructing the Laws for Naturalization of Foreigners, refusing to pass others to encourage their migration hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of officers to harass our People, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislature.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislature, and declaring themselves invested with Power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Something Else Schools Can't Do -- Teach

2010-04-09T08:08:00.005-04:00

About sex that is.

According to a District Attorney in Juneau County, Wisconsin, if teachers follow their state's new sex education law they risk being prosecuted for "misdemeanor or felony delinquency of a minor, with maximum punishments ranging from nine months in jail to six years in prison."

He suggested in his letter to school districts that someone instructing students under 16 in the use of contraceptives is punishable because "the 'natural and probable consequences' of the teacher's instruction is to cause that child to engage in sexual intercourse with a child".

Read the rest of the article here.

So, apparently, this DA thinks it is a criminal act to even cause a kid to think about sex. And that is regardless of whether what is taught actually causes sex or is designed for the purpose of protecting students from some of the consequences of their youthful indiscretions.

Legal Consequences of Teen Sexuality

2010-03-24T14:01:00.004-04:00

The following question was posted here:

http://www.avvo.com/legal-answers/can-a-16-year-old-consent-to-sex-in-ma-to-a-29-yea-233319.html

Paraphrasing the question:

I am 16 and see a personal counselor. I told her I am in a relationship with a 29 year old man. She checked with her advisers and DCF to see if it was legal or not and said yes it is legal -- there's nothing anyone can do about it. Then a couple of months after that my counselor brought my mom in with us during a session to work on my relationship with her. My mom brought up her concerns of me possibly being with this man. I have always said to her I wasn't with him and he has told her the same. The next day tells me that it's illegal and she needs to tell the authorities. So, is it legal or not?

My answers:

The age of consent for sexual relations in Massachusetts is 16. I'll post more in a few minutes after searching to give you some citations.

Call me at 781-641-3472 if you would like a free, brief initial consultation about your rights.

The Massachusetts Trial Court Law Libraries have put together a great set of links on a page called "Massachusetts Law About Sex."

I suppose it could be argued that it might be "abuse" under DCF (formerly DSS)'s definition if the counselor had "reasonable cause to believe" that your relationship with this man "causes, or creates a substantial risk of physical or emotional injury," or if the man can be defined as a "caretaker" in relationship to you because "any sexual contact between a caretaker and a child under the care of that individual" also constitutes "abuse." I'll link the definition page below as well as the statutory link about what a counselor is "mandated" to "report."

On the other hand, a child in DCF custody is allowed to consent to her own "family planning services" which can include contraception. See §11.05 of the Medical Authorizations regulation linked below.

If the counselor is required to report under §51A, linked below, your right to privacy of your conversations with her is essentially voided. If she is wrong about her insistence on reporting and ignores your reasonable requests that she keep your confidences, you may have a claim against her.

DCF's Glossary regulation

Mandated reporting Law

DCF's Medical authorizations regulation

And Now Something that Schools Cannot Do to Kids

2010-02-24T10:09:00.003-05:00

And Now Something that Schools Cannot Do to Kids - ridicule a child and have the school police escort her out of the room for refusing to stand for the Pledge of Allegiance.

But that appears to be just what happened to a 13 year old at the Roberto Clemente Middle School in Montgomery County, Virginia, last month. It happened despite it being settled law since 1943 that one cannot be forced to say the Pledge or participate in other patriotic exercises and despite the fact that the school handbook even says that kids cannot be disciplined for refusal to participate.

See the full story here.

Post comments below to ask me about other things that you want to know whether schools can do to kids and I'll consider a Ten Things list.

Untold Number of Things You Can Be Restrained from Doing to Anyone

2010-02-16T06:12:00.005-05:00

Massachusetts will soon have an Harassment Prevention Order statute.

Chapter 23 of the Acts of 2010: AN ACT RELATIVE TO HARASSMENT PREVENTION ORDERS was enacted on February 9, 2010. By my calculation it will go into effect on May 10th. The act adds a new chapter, 258E, to the Mass. General Laws. It is not yet up in the official, online version of the General Laws, so for now you'll have to use the St. 2010, c. 23 link or, to eventually find it in its codified form, go to M.G.L. c. 258D, § 9 and click the "Next Section" button.

The actions that are restrainable under the new law are defined as follows:

“Abuse”, attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.

“Harassment”, (i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272. (M.G.L. c. 258D, § 1.)

In contrast to Abuse Prevention Orders (Mass. Gen. Laws chapter 209A), the plaintiff and defendant in a complaint for protection from harassment do not need to have had any family, living or substantial dating relationship. (Cf. M.G.L. c. 209A, § 1.) But similarly to chapter 209A: Violations of chapter 258D orders are criminal offenses, there are no filing fees, the orders can be entered without advance notice, initial orders are valid for 10 court business days after which there is to be an extension hearing and there do not need to have been violations of the order for the order to be extended after its original expiration date.

The relief available to "A person suffering from harassment" is to "order that the defendant:"

(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;
(ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;
(iii) remain away from the plaintiff’s household or workplace, whether the defendant is an adult or minor; and
(iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney’s fees. (G.L. c. 258B, § 3(a).)

Violations of the orders are criminal offenses with potential penalties of:

[A] fine of not more than $5,000, or by imprisonment for not more than 2½ years in a house of correction, or both. In addition to, but not in lieu of, the foregoing penalties and any other sentence, fee or assessment, including the victim witness assessment in section 8 of chapter 258B, the court shall order persons convicted of a violation of such an order to pay a fine of $25 that shall be transmitted to the treasurer for deposit into the General Fund. For any violation of such order, the court may order the defendant to complete an appropriate treatment program based on the offense.

In each instance in which there is a violation of a harassment prevention order or a protection order issued by another jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement locks, medical expenses, cost for obtaining an unlisted telephone number and reasonable attorney’s fees. (M.G.L. c. 258D, § 9.)

The orders may be sought in the district, superior, Boston Municipal or, if both the plaintiff and defendant are below the age of 17, in the juvenile courts where the plaintiffs reside. (M.G.L. c. 258A, § 2.)

To discuss obtaining or defending against such an order, read my Initial Consultation Policies and contact The Law Office of Michael L. Rich.

Yet Something Else Not To Do To Your Child

2010-01-23T18:58:00.004-05:00

This article that I was alerted to via the Snopes.com "Daily Snopes" is perhaps this Georgia mother's reply to the following inquiry:

At a party several years ago, I was introduced to a lawyer who was here from China studying taxation law at Harvard Law School. He asked me what field of law I practiced. When I told him Children's Law he said, "I don't think we have that in China." After a brief discussion of what Children's Law was about, he said, "You can probably tell me then, is it true that you're not allowed to beat your children in America?" When I said yes, that was mostly true he asked, "So, what do you do when they don't study?"

And the answer is:

As punishment for bad grades, a Georgia mother forced her 12-year-old son to kill his pet hamster with a hammer, police said.
The day after he was forced to kill his pet, the child told his teacher [...].
The teacher reported the incident to DFCS authorities, who contacted police [who arrested Mom].

See the rest of the article here: Cops: Mom forces son to kill hamster for bad grade | ajc.com

So there's something else to add to my list of Top 10 Discipline Methods Not to Use on your Child.

Another Thing Not to do to Your Child?

2010-01-14T14:57:00.002-05:00

Don't let him wear long hair.

At least not if he goes to Floyd Elementary School in Mesquite, Texas.

Texas school board keeps ban on boy's long hair

and continues the in-school suspension for the pre-kindergartner. The article says:

The district is known for standing tough on its dress code. Last year, a seventh-grader was sent home for wearing black skinny pants.

Something Else Not to do to Your Child

2009-12-08T08:03:00.004-05:00

Don't hide your child in a crawl space.

An Illinois judge found that it constituted neglect for a mother to hide her then 5 year old son in a crawl space in her mother's house for most of two years to keep him away from his father whom she accused of abuse.

Ill. Judge: Mom's Hiding Of Boy Amounts To Neglect
JIM SUHR, Associated Press Writer
BENTON, Ill. (AP) ― A mother's hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall, amounted to neglect, a judge ruled Friday. See full article here.

Neither child protective services nor the court had believed mother's allegation of abuse. She and the child disappeared two years ago after the court granted the father temporary custody. The article does not say how they were found. There are criminal child abduction charges pending against the mother, the maternal grandmother and the MGM's boyfriend.

The boy is currently having supervised visitation with his parents (which are reportedly going well) and a custody and visitation hearing is scheduled for January 8th.

Top 10 Discipline Methods Not to use on Your Child

2009-11-21T10:24:00.004-05:00

On the same day that I received a request to answer a survey for child abuse professionals about what I think my community's beliefs are concerning discipline methods, I saw an article about one type that wasn't on the list.

A pediatrician at the University of North Carolina at Chapel Hill is circulating a survey about opinions about child abuse. Professionals in various disciplines of the child protection field were asked to say whether we think it is the norm in our communities to use certain methods on various age children usually, occasionally, rarely or never. It didn't include the one that turned out to me to be the Number 1 Truly Shocking Thing NOT to do to Your Child.

But first the list:

Top 10 Discipline Methods Not to Use on your Child

Number 10 - Pinching

Number 9 - Kicking

Number 8 - Hot peppers in mouth as punishment

Number 7 - Calling child names such as stupid, ugly or useless

Number 6 - Hitting on the buttocks with an object such as a belt or switch

Number 5 - Slapping child on the face or the back of the head

Number 4 - Hitting child elsewhere than on the buttocks with an object such as a belt, hairbrush or stick

Number 3 - Shaking

Number 2 - Beating (that is hitting over and over again with an object or fist)

and the number 1 Truly Shocking Thing NOT to do to Your Child ...

... TASING.

That's right, I saw an article about a woman who called the police on her 10 year old daughter who curled up on the floor rather than take a shower at bed time. AND THEN the mother gave the officer permission to use his taser on the child if he thought it was necessary. See the November 19, 2009, Associated Press article from Ozark, Arkansas, here.

The girl's father, who reportedly "does not have custody", described the child as having "emotional problems."

The Mayor wants the State Police or FBI to investigate and said:

People here feel like that he made a mistake in using a Taser, and maybe he did, but we will not know until we get an impartial investigation.

Really? Really? The town has to have an independent investigation to determine whether a child having a tantrum at home needs to be shocked into submission?

See also my Guest Commentary on the bill that was then pending in the Massachusetts state legislature to ban corporal punishment in the December 13, 2007, Arlington Advocate.

SJC strikes down Lowell youth curfew

2009-09-25T15:10:00.002-04:00

SJC strikes down Lowell youth curfew - Local News Updates - The Boston Globe

Posted using ShareThis

The case is COMMONWEALTH vs. WESTON W., a juvenile (and a companion case), SJC-10299, decided September 25, 2009.

Justice Cordy's decision noted:

We reject the rationale used by some courts to justify a lower standard of review, that the rights of minors are not coextensive with or are weaker than those afforded adults. Minors possess fully formed constitutional rights. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) ( "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority"). However, in applying the strict scrutiny test to their infringement, we recognize that the government has a countervailing compelling interest in "protect[ing] children from actual or potential harm," Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003), an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults. See Bellotti v. Baird, supra at 634 (constitutional principles should be applied with "flexibility" to minors because minors are vulnerable and unable to make decisions in "informed, mature manner"); Matter of Gail, 417 Mass. 321, 326-327 (1994), quoting Custody of a Minor, 375 Mass. 733, 754 (1978) (Commonwealth has "long-standing interest in protecting the welfare of children living within its borders"). In other words, the analysis "should consider whether the state's interests may be more compelling but not whether the rights involved are less fundamental." Nunez, supra at 945, citing H.L. v. Matheson, 450 U.S. 398, 441 n. 32 (1981) (Marshall, J., dissenting). See also Qutb, supra at 492 n. 6.

And then concluded:

Applying the strict scrutiny standard, the ordinance's criminal provision unconstitutionally infringes on the minors' rights to freedom of movement. Status offenses such as being abroad at night may not be "bootstrapped" into criminal delinquency and commitment to DYS custody. See Commonwealth v. Florence F., supra at 528-529 n. 8. In response to the first reported question [Does the Lowell Youth Protection Curfew for Minors violate the equal protection rights of the Juveniles under either the United States Constitution or the Massachusetts Declaration of Rights by subjecting the Juveniles to a restriction upon their rights to movement and travel that persons seventeen and older do not have to endure?], the answer is, "Yes," with regard to criminal penalties resulting from violations of the ordinance. The curfew itself and its civil enforcement mechanism, however, represent, as of the date of the proceedings below, a permissible, narrowly tailored response to Lowell's compelling interest in preventing crime by, and against, minors. Because the ordinance contains a severability clause, those provisions remain in force.

Prof. Gates' Unconstitutional Arrest - Forbes.com

2009-07-30T07:17:00.008-04:00

It may have been a Town v. Gown controversy rather than a racial incident. Or even, as Steven Colbert proposed on Comedy Central's "The Colbert Report," a jock v. nerd matter with Sgt. Crowley as the jock and Prof. Gates, pictured riding his tricycle on Martha's Vineyard, as the nerd. But I prefer to agree with Massachusetts criminal defense and civil rights attorney Harvey Silverglate, who, in this Forbes commentary, "Prof. Gate's Unconstitutional Arrest: There's a First Amendment right to be rude to a cop," argued persuasively that "fundamentally the situation can, and should, be analyzed as a free speech case."

In my two plus decade criminal defense career, I too saw many police reports that parroted the words "loud and tumultuous behavior which caused a crowd to gather and created public inconvenience, annoyance and alarm." Disorderly conduct is what the Boston police used when the City's equally unconstitutional "Sauntering and Loitering" Ordinance somehow didn't fit or wasn't enough. As a new, young, white law student in 1976, I was threatened with arrest by a Cambridge police officer for insisting that he shouldn't be smoking inside the front of the Porter Square Star Market right under the "No Smoking" sign. Unlike Prof. Gates, I swallowed my First Amendment rights and stopped my confrontation upon the police officer's threat even though I knew it would have been an unconstitutional arrest.

As Atty. Silverglate points out:

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if "free" means anything meaningful, it means being left alone--especially in one's own home--when one is not breaking the law.

See the article also for Atty. Silverglate's brief but thorough history of First Amendment jurisprudence and the evolution of the "four exceptions to the First Amendment's protection for free speech."

Happy Birthday, United States of America!

2009-07-03T07:10:00.007-04:00

Happy Birthday, United States of America, may you continue to mature into the beacon of hope and liberty that your birth certificate envisioned.

See photo of original here: Rare copy of US Declaration found in England and the text here: Declaration of Independence from Boston Globe editorial page of July 4, 2009.

Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook

2009-06-26T06:33:00.007-04:00

At least the U.S. Supreme Court got the main part of the case right -- they found it was outrageous and unreasonable for school officials to search 13 year old Savanna Redding for Ibuprofen. The court though gave qualified immunity to the school officials saying it wasn't constitutionally settled before now such that they should have known it was a violation.

Here's a summary of the case from the Willamette Law School Supreme Court news:

Safford Unified School District #1 v. Redding
Decided: 06/25/09
No. 08-479
Full Text: http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf

FOURTH AMENDMENT (The Fourth Amendment prohibits a search of a student by school officials that extends beyond the outer clothing and belongings when the degree of suspicion of further contraband is low, and when the contraband is of limited danger)

The United States Supreme Court held 8-1 (opinion by Souter) that a search of a student’s underwear is a violation of the Fourth Amendment when suspicion of further contraband is low and the contraband is of limited danger because the measures adopted must be reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The Court also held 7-2 that the school officials were still protected from liability by qualified immunity, because the search was not a violation of the Fourth Amendment by clearly established prior case law.

The student was suspected of distributing common pain relievers some of which were prescription strength. The school officials found pain relievers in the student’s belongings. The school officials had the student strip down to her underwear and then extend out the elastic of her bra and waistband of her underwear and attempt to shake out any other drugs she might have been hiding. The student’s mother filed suit, alleging the strip search violated the student’s Fourth Amendment rights. Claiming qualified immunity, the school officials moved for summary judgment. The district court granted the motion, finding that there was no Fourth Amendment violation, and the federal appellate court reversed.

The United States Supreme Court affirmed, holding that the search of the student’s underwear violated the Fourth Amendment. The Court reasoned that individual and societal expectations of personal privacy support the notion that a search extending beyond the outer clothing is a distinct search from the previous search. The court held that this level of search requires a further element of justification on the part of a school official. The suspicion must match the degree of the intrusion. In this case the threat was possession of common pain relievers which are a limited threat in their nature and which were not suspected of being passed around in large quantities. Further, the school official had no specific reason to suspect that there were more drugs hidden in the student’s underwear. [Summarized by Jim LeBlanc]

And here's a link to the AlterNet story about the decision:

SCOTUS: Teen Strip-Search Ruled Unconstitutional, But School Officials Are Off the Hook | Rights and Liberties | AlterNet

School curbs girl's report on gay rights activist Milk

2009-05-21T07:52:00.003-04:00

The project was to create a powerpoint about a famous person to present to the class. The sixth grade girl chose Harvey Milk, the first openly gay public official in the U.S., about whom a feature film had recently been released. When it was her turn to present to the class the school principal said the teacher had to get permission from parents under the school's sex education policy for other class members to attend.

School curbs girl's report on gay rights activist Milk

The powerpoint is included in a link with the above article. Give me a break - she mentions that Milk was gay (no-duh) and the name of his partner but there was nothing else in it that should have required a parental permission slip. The ACLU is asking that she be allowed to give her presentation to the whole class and that the school give her an apology that they send to all the parents who received the original sex ed notification.

I'm all for parents having a say in the education of their children but, as the U.S. Supreme Court said in Tinker v. Illinois ..., students "do not leave all their rights at the schoolhouse door." The government should not be engaged in content-based censorship.

Shaken baby or not?

2009-05-17T07:33:00.007-04:00

A report in the Brockton Enterprise Increases in shaken baby cases concerns officials tells of various officials' speculation about the rise in reported cases of suspected shaken babies.

There are experts in the field of evidence-based medicine who suggest that there are other explanations for many of the injuries that the shaken baby prevention advocates attribute solely to vigorous shaking. The pediatric neurologist and pediatric radiographer who spoke at a seminar I attended sponsored by the (Massachusetts) Juvenile Bar Association two years ago delineated the genesis of Shaken Baby Syndrome. They pointed out the flaws in the "research" of the founder of the Shaken Baby movement and how the advocates ignored contrary evidence in a series of cases.

The Shaken Baby Advocates insisted that the injuries and signs apparent in various infants and toddlers could not have been caused by anything other than being vigorously in the manner they propose. Then the evidence-based medicine teams would scientifically prove that the injuries could have been caused by a car accident as described by the accused parents in one case, by falling down the stairs with the baby as described by the accused parents in another case and even by falling out of a high chair as described by the accused parents in yet another.

The cases often rely on the assertion that certain retinal damage patterns can only be caused by a baby being vigorously shaken but the evidence-based presenters showed that the claim was based on believing an assumption that did not look at a wide enough collection of retinal damage patients. When retinal images across other medical specialties besides just child abuse pediatrics are viewed, there are many other causes including some as benign as sneezing that cause the retinal images that shaken baby prosecutors so often rely upon.

The bad economy may be causing a lot of hardship but it is not necessarily the cause of an increase in reported shaken baby cases. An increase in reported shaken baby cases may not even be caused by an increase in shaken babies. When DCF investigators or police are investigating an injured baby case they may well have a predilection to think shaken baby and be dealing with a system of "experts" too quick to disbelieve the parents and assume inflicted injury.

If you are the subject of a 51A (report of child abuse or neglect), are accused of having shaken your baby or are subjected to any other investigation by police or the Department of Children and Families (DCF, formerly the Department of Social Services, DSS) be sure to contact an attorney with experience in this field BEFORE your interviews, BEFORE letting them into your home.

Families are too important to fail.

2009-05-11T05:45:00.006-04:00

In an op/ed piece in today's Boston Globe, Vulnerable children are suffering twice, the chief of Ambulatory Pediatrics at Boston Medical Center and the executive director of The Children's League of Massachusetts tell the story of a mother helped by the Department of Children and Families despite budget cuts.

Despite their increasing caseloads, the late-night DCF worker and a supervisor came to assess the situation. They knew something we didn't - that this wasn't the first time this mother, a depressed refugee who had been through God knows what before arriving in the United States, had told a caregiver that she was in trouble. By the end of the evening, the mother was in the hospital being treated for her depression, and the children were safe in an emergency placement. The next day, with the mother's agreement, they were placed with a family friend. Now, the mother is out of the hospital with daily supports and the children are back home.

From my perspective as an attorney who has seen way too many cases in which the only help a troubled family received from DSS was to have their children placed in foster care and to face an unnecessarily long and arduous process of getting them back, this case may represent an unintended benefit of DCF's budget and caseload problems. All too often, in my and my colleagues' caseloads, a mother with a history with the Department mentions to a "caregiver" that she is feeling overwhelmed only to have had DSS place her kids in foster care and put them on an adoption track because the mother couldn't "correct" her condition quickly enough.

The "vulnerable children" piece starts by saying the mother brought her children into the clinic "recently." By a couple paragraphs later they are "back home". More often, in my experience, the other parent or a caring family member, let alone "a family friend" is denied the opportunity to help with their troubled relative's children when troubles are brought to the attention of DSS/DCF. It seems to me that not having this repeat customer's kids be subjected to a longer stay in foster care with strangers might be an unintended benefit of DCF's increasing caseload and decreasing budget. Maybe DCF's budget crisis helped these children get home more quickly.

If increasing caseloads and a tightening budget cause DCF workers and supervisors to give additional thought to whether children need to be in foster care and whether their families can be helped instead of being discarded while the children get a brand new "forever family," it might go a long way toward making DCF into a valuable safety net to which troubled parents feel safe turning for help instead of a feared monster set only on gobbling up their children and spitting out the parents who love them.

The authors end by saying:

Citibank, AIG, and the automakers have received unprecedented amounts of money from the federal government because they are deemed "too big to fail." We need to remember to look out for those who are "too little to fail."

To that I would add that families need to be thought of as "too important to fail" and that therefore more of them may need to be treated with the respect and true assistance that this refugee mother apparently received instead of keeping them from their families and rushing them to "permanency" in non-family placements.

Read the rest of the Globe op/ed here.

In re: Adoption of Sebastian

2009-05-07T19:31:00.007-04:00

Fascinating case of first impression from Manhattan Surrogates Court -- In re: Adoption of Sebastian. Mom whose ovum was implanted in her spouse's uteris after in vitro fertilization is permitted to adopt her child to ensure full, safe recognition of her legal relationship with the child.

The court noted that because of the international nature of the couple, because of the state's out-dated paternity laws and because of the federal "Defense of Marriage Act" (so-called), though there were less expensive, quicker ways to protect the relationship to which genetic mom was entitled with her child, adoption was the only way to assure full and complete recognition.

Read full opinion here.

Physical restraint of students with behavioral issues is questioned - The Boston Globe

2009-05-05T15:25:00.001-04:00

Physical restraint of students with behavioral issues is questioned - The Boston Globe

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On torture outrage, let's take a step back - The Boston Globe

2009-04-23T09:54:00.001-04:00

On torture outrage, let's take a step back - The Boston Globe

Posted using ShareThis

Student Arrested For Classroom Texting

2009-02-18T08:09:00.002-05:00

When you put cops in schools, school discipline issues become police issues.

According to the The Smoking Gun "A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct ..." Read the rest of the story, including the 5 page police report here.

See also SchooltoPrison.org "Challenging the School to Prison Pipeline".

Gender discrimination in sexual abuse cases?

2009-02-09T09:46:00.003-05:00

On February 6, 2009, in the case of Commonwealth v. Bernardo B., a juvenile, the Massachusetts Supreme Judicial Court ordered the Plymouth County District Attorney to provide discovery to defense counsel so that the defendant might be able to make out a case of discriminatory selective enforcement of statutory rape laws against male juveniles.

Bernardo was the eldest (having "just entered his teens") and only male amongst a group of four playmates (the other three were females "on the cusp of their teenage years") who engaged in various kinds of sexual touching at Bernardo's request. Bernardo's father found a text on Bernardo's cell phone from one of the girls talking about a sex act she would have performed on him if one of the other girls had not been present. Mr. B. called the girl's mother with his concern. The girl's parents called the police. After investigation and sexual abuse interviews in which the girls described Bernardo "pressuring" them to touch him in various ways Bernardo was charged with delinquency for three counts of statutory rape, amongst other charges.

Bernardo's defense attorney tried to get the District Attorney to prosecute the girls for their sex acts on, the also under aged, Bernardo but the DA declined. Bernardo filed applications for criminal complaints against the girls but the Clerk-Magistrate declined to issue complaints.

Chief Justice Marshall, in a 3-2 decision, ruled that "[T]he single justice [who refused to vacate the juvenile court judge's order granting the defendant's discovery requests] did not abuse her discretion in declining to vacate the ruling of the motion judge that the boy has made a threshold showing based on credible evidence that he is entitled to discovery for the purpose of investigating and, if warranted, raising a claim of selective prosecution."

Press reports of the case imply that the SJC ruled that there was selective prosecution. The case really only says that the defendant has raised enough of a question about selective prosecution that he is entitled to force the DA to produce statistics that may help him show that he was discriminatorily prosecuted on the basis of being male. Once the information is provided, the defendant will still have a heavy burden to meet in attempting to overcome the presumption of validity granted to prosecutorial discretion.

Also of interest in the case was a brief history of statutory rape. Chief Justice Marshall wrote:

Statutory rape is an offense of ancient origins. "First codified into English law in 1275, statutory rape criminalized sexual relations with females under the age of twelve." Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L.Rev. 703, 754 (2000). The aim of this gender-specific statute was not the protection of young females but the protection of fathers' property interests in their young daughters, whose loss of virginity would severely depress the value of the dowry the father would receive on his daughter's marriage. Id. at 754-755. By the late Sixteenth Century, the aim of the law evolved to a statute designed to protect men from charges of illegal sex with young girls. The age of consent was lowered to ten years and so it stood when the American colonies, including Massachusetts, absorbed English common law and adopted the English law of statutory rape. General Laws of Massachusetts Colony at 15 (1672), reprinted in Colonial Laws of Massachusetts 1672-1686 (1887) ("whosoever he be shall commit or have Carnal Copulation with any such [woman] Childe under ten years old ... he shall be put to death"); Province Laws 1692-1693, c. 19, § 11 (capital offense for any man to "unlawfully and carnally know and abuse any woman child under the age of ten years"). See generally Note, No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape Laws, 16 J.L. & Pol'y 717, 725-726 (2008). In the late Nineteenth Century, in response to the widespread sexual exploitation of young girls in factories and urban centers, temperance organizations and other reform groups launched a nationwide effort to raise the age of consent. In Massachusetts, between 1886 and 1898, the age of consent rose from ten to thirteen, then fourteen, then sixteen years of age. See Commonwealth v. Hackett, 170 Mass. 194, 195-196 (1898) (summarizing statutory amendments to age of consent). As in Elizabethan times, however, only females could be the victims of statutory rape.

There have been more recent efforts to reform our American statutory rape law. Statute 1974, c. 474, § 3, struck the word "female" from G.L. c. 265, § 23. Compare St.1974, c. 474, § 3, with St.1966, c. 291. See also note 3, supra. As we noted in Commonwealth v. Hackett, 383 Mass. 888, 888 (1981): "In general, the 1974 amendment eliminated prior language which defined the victims of rape as female or female children. Instead, the victims are now defined as persons or children and the generic masculine pronoun is substituted throughout. Both males and females are protected from sexual assault by this same statute, which is neutral as to the gender of the victim. Nor does the statute define the various crimes with reference to the gender of the offender. The result is that the penalties for sexual intercourse and unnatural sexual intercourse are the same without regard to the gender of the victim."

Modern amendments leave no doubt about the Legislature's intent to protect all children under sixteen years old from sexual abuse. The statutory rape law, as well, makes clear that perpetrators of statutory rape may be either male or female. Statutory rape in Massachusetts is a strict liability felony. Only two elements are needed to support a conviction under G.L. c. 265, § 23: "(1) sexual intercourse or unnatural sexual intercourse with (2) a child under sixteen years of age." Commonwealth v. Miller, 385 Mass. 521, 522 (1982). See id. at 525 (noting that mistake as to age is not defense to statutory rape in Massachusetts). Force is not a necessary element of the crime. Moreover, conviction of statutory rape has weighty consequence beyond incarceration. Those convicted enter the Commonwealth's sex offender registry and are required to abide by all of the obligations and restrictions contained therein. See G.L. c. 6, §§ 178C-178Q.

It remains to be seen whether Bernardo will be able to make out his selective prosecution case and thereby get the complaint against him dismissed. His motion "to dismiss the statutory rape claim on the ground that the law was unconstitutional as applied to him ... remains undecided, [and was] not before [the SJC]. The decision noted also that "As a result of the arrest and charges, the boy has been suspended from school and removed from its football team. He is being tutored at home."

Alternatives for promoting school safety

2009-02-09T09:14:00.003-05:00

Scholastic Adminstr@tor magazine (November / December 2008 edition) reported on restorative practices as a means of promoting school safety and an alternative to zero tolerance policies.

The Talk It Out Solution
How can you promote safety? Try getting rid of the metal detectors.
By Caralee Adams | November/December 2008

What makes for a safe school? Security guards patrolling the hallways? Metal detectors? Zero-tolerance policies? The answer may be none of the above: Educators are searching for new solutions to achieving harmony in the classroom and, surprisingly, they’re increasingly holistic. “There aren’t enough bars, metal detectors, or police to make a school safe if there is a culture of violence in a school,” says Ted Wachtel, founder of the International Institute for Restorative Practices (IIRP) in Bethlehem, Pennsylvania. “You need to strike at the heart of the culture.”

Trying restorative practices
One safer schools initiative making its way across the nation is the implementation of “restorative practices.” Rather than meting out punishments, restorative practices employs a talk-it-out approach to foster dialogue between aggrieved students. Students are taught basic social skills to problem-solve and lower the tension in schools. One premise of the strategy is that kids feel safe when there is cooperation instead of hostility; another is that kids who feel valued and connected at school are less likely to act out. Many administrators around the country are investing in restorative practices programs to build a healthy school climate in hopes of fending off violence and improving academic performance.

Restorative practices places responsibility on the students themselves rather than relying on zero tolerance and authoritarian control from above. It uses a collaborative response to wrongdoing, which is intended to be supportive, not demeaning.

Read the rest of the article here.

A Challenge to Mass. Special Ed Due Process system

2009-01-23T11:29:00.003-05:00

Attorney Robert Crabtree wrote:

Over the last couple of days we learned that Mitchell Chester, Ed.D., our new Commissioner of the Department of Elementary and Secondary Education ("DESE"), chose as one of his first acts in Massachusetts to invite the federal office that oversees implementation of IDEA in the states (the Office of Special Education and Rehabilitative Services in the U.S. Department of Education) to rule that our due process system - the Bureau of Special Education Appeals - violates IDEA because the hearing officers are employees of the DESE. OSEP gave him the opinion he asked for and requested that the Department submit a plan within 90 days to set out steps to remove the BSEA from its auspices. See the attached for a copy of the memo Commissioner Chester posted yesterday.

This is an issue that was addressed early in the process in Massachusetts; a bureaucratic wall was built around the agency; and for many years we have had a very workable and very professional unit of hearing officers dealing only with special education disputes. In short, the system works, and there is no practical reason to "fix it," as advocates on both sides of these cases generally agree. What the actual motivation for the new commissioner having taken this action - and so quickly in his regime - remains to be seen, but the objective is clear - he wants the BSEA out of his agency.

What the enforcement system for students' and parents' rights under IDEA will look like after this is over is far from certain. From the perspective of most practitioners at this juncture the best result would be for the current BSEA to be reconstituted as it is but in a different location, under different auspices and with sufficient funding to continue to do its work independently and professionally. There is a long and deep base of experiential and intellectual capital in the BSEA and it would be absurd and expensive to throw that away. The prospect of having to educate fresh hearing officers in each case to the complexities of special education law and substance from the ground up looms as an economic nightmare. (And, as usual, it would be those who can least afford that incremental cost who would suffer the most.) We expect that the worst of imaginable options may be what we know some other states have lived with - namely the use of independent contractors (including some who represent school districts in their practices) to hear cases.

The Commissioner has promised a collaborative process as the DESE develops a plan for the next steps over the next three months. He has also promised a "seamless" transition plan with no disruption of the resolution of special education disputes and with the needs of all parties continuing to be met. Let's hope . . .

Bob

And here is the text of the Commissioner's Memo (also supplied by Bob Crabtree):

MEMORANDUM

To: Superintendents, Charter School Leaders and Special Education Directors
From: Mitchell D. Chester, Ed.D., Commissioner
Date: January 22, 2009
Subject: U.S. Department of Education Ruling on Bureau of Special Education Appeals

In October 2008, after becoming Commissioner and reviewing the operations of the Department of Elementary and Secondary Education, I had questions about the structure for special education hearings and mediations in Massachusetts. My questions were based on my experience and knowledge of how these procedures are conducted in other states. I wrote to the United States Department of Education (USED) and asked them to evaluate our current structure in relation to the requirements of the Individuals with Disabilities Education Act (IDEA). The Office of Special Education and Rehabilitative Services of the USED responded last week and informed me that the structure for the Bureau of Special Education Appeals (BSEA) is not consistent with the IDEA and its regulations.

The letter we received from the USED, dated January 15, 2009, states that the IDEA unambiguously requires that hearing officers and mediators not be employees of the state education agency. Currently, the 18 members of the BSEA staff are all employees of the state education agency, the Department of Elementary and Secondary Education.

To be clear, the finding challenges our current structure, but does not call into question the impartiality or integrity of any of the decisions the BSEA has made. Our system for due process hearings and mediations has been and is operating in an impartial manner. No one in this Department, outside of the BSEA staff, reviews or tries to influence decisions of individual
hearing officers or mediators in ongoing cases.

The USED has given us 90 days from the date of their letter to respond with a plan that will bring us into full compliance with the IDEA. We are determined to develop a seamless transition plan for the BSEA so that the resolution of special education matters is not disrupted and the needs of students, parents, and the special education community continue to be met.

Over the next three months we will gather information about how this work is done in other states, seek input from key constituent and stakeholder groups, consider our options, and present a plan to USED. Until a final decision is made, the BSEA will continue to operate as it has, issuing valid and impartial hearing decisions and assisting parties in resolving their disputes.

If you have any questions, please contact Associate Commissioner Jeffrey Wulfson at 781-338- 6500

Supreme Court to hear school strip search case

2009-01-17T15:04:00.004-05:00

As reported here, the U.S. Supreme Court has agreed to hear Safford (AZ) Unified School District's appeal of the Ninth Circuit's reversal of the dismissal of Savana Redding's suit against it for strip searching her to look for ibuprofen when she was a 13-year-old honor student with no history of discipline issues at her middle school.

I hope SCOTUS isn't taking the case in order to overturn the Ninth Circuit. The July 11, 2008, Opinion of nine of the eleven appeals court judges who heard the case details the Constitutional basis for holding the school personnel responsible for their unreasonable violation of the privacy and person of the 13-year-old student.

The Ninth Circuit held that

[T]he public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

It would be a shame if parents had to worry more about schools abusing their children than the "evils" that Safford U.S.D.'s officials say they want to protect our children from.

Whom is this law supposed to benefit?

2008-09-26T09:09:00.004-04:00

The Associated Press reported on September 26, 2008, that on September 24th in Nebraska, 11 children (9 of them siblings) were abandoned at two different hospitals under the state's so-called "Safe Haven" law. (See the full Boston Globe story here.)

According to the article,

Todd Landry, director of Health and Human Services' division of Children and Family Services, said that in nearly every case, the parents who left their children felt overwhelmed and had decided they didn't want to be parents anymore.

In my opinion it is disastrous to let children be dumped like so much not-worthy-of-my-time-to-repair-but-too-good-for-the-trash "Free-cycle" material, especially when states can achieve the same goal by just making it clear that they do not intend to prosecute troubled parents who seek help when they are overwhelmed with child-rearing.

Massachusetts has a "Baby Safe Haven Law" but it only applies to babies 7 days old or less. It is still problematic, though, because it permits the voluntarily-abandoning-parent to do so without providing any information about him/herself or the child. There is then no ability to notify the other parent nor any other family member who might be interested. The babies so abandoned are turned into complete foundlings without any birth-family history, medical history or sense of place in the world that can be difficult to overcome even in the most caring of adoptive homes.

As a society we should be able to help struggling parents and their children without the need to say "Children Wanted - No Question Asked."

WHAT?@@!??

2008-05-24T11:23:00.004-04:00

A young mother's apparently disturbed young friend steals her baby Thursday night so on Friday

the Department of Social Services took custody of the baby and his 16-month-old sister, and Sterrett's third child, a 2-year-old boy, was placed with relatives, according to a spokeswoman for the agency.

DSS previously investigated Sterrett for alleged neglect involving one of her other children. That case was closed last year, according to Alison Goodwin, a spokeswoman for DSS, who gave no details.

Does DSS not realize, like the Texas authorities in the FLDS case didn't realize, that they need specific, articulable "reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect"? See Mass. General Laws chapter 119, section 51B (emphasis added). Doesn't "further" imply that there had to have been some abuse or neglect in the first place?

Nothing in the Globe article about poor Ms. Sterrett's troubles indicates that there was any evidence of

reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child’s health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth

which is the applicable statutory definition from the infamous section 51A.

It's hard to tell for sure from the Globe article, but it seems as if this is another case of DSS breaking up a family in the name of protecting children from a parent they don't need protection from. Will the Globe report on Tuesday, after Ms. Sterrett's 72-hour hearing , if she gets her children back from the juvenile court judge? Will DSS apologize or even have its spokesperson report that they were wrong if Ms. Sterrett does get her children back?

The Fourth Amendment to the U.S. Constitution gives even young mothers the right not to have their children seized by the state without probable cause.

Now they're suspending students for writing a list of names!

2008-05-23T10:42:00.006-04:00

According to the Boston Globe:

High schoolers investigated
By Martin Finucane
Globe Staff / May 23, 2008

Two students at Silver Lake Regional High School are being kept out of school while police investigate whether lists the two students made of fellow students constitute a threat to the school community, the school district's superintendent said yesterday.

A teacher became concerned when she saw a male student throw away a piece of paper last Friday. She retrieved it and saw a list of four names. On Monday, a female student was found to be writing a list containing two names.

"At this point in time, we're taking it very seriously. . . . Frankly, we take any threat as a serious threat until it's sort of proved otherwise," said Superintendent John Tuffy, who would not describe what raised school officials' suspicions about the lists.

Tuffy said it was not clear if the two students were linked.

"That's being looked into right now. There are a number of questions that we all would like answers to," he said.

Kingston Police Chief Joseph Rebello did not immediately return a telephone message seeking comment.

Read it online here.

~~~

After attending "School Discipline, Juvenile Justice and the Realities of Race" sponsored by The Boston Lawyer Chapter of the American Constitution Society, the American Civil Liberties Union, the American Civil Liberties Union of Massachusetts, the Juvenile Justice Center at Suffolk University Law School and the Criminal Law Section of the Boston Bar Association at The Boston Public Library Tuesday night and being reminded of the School to Prison Pipeline, I couldn't help but be astounded at the evidence of overuse of zero tolerance policies that seems to be exhibited by the above article.

It amazes me what we criminalize these days and what our "authorities" want to "take seriously".

Termination of Parental Rights Does not End Child Support Obligation (Illinois Supreme Court rules)

2008-03-08T17:23:00.002-05:00

Termination of Parental Rights Does not End Child Support Obligation
by Barbara Glesner Fines, Ruby M. Hulen Professor of Law, University of Missouri-Kansas City

In an unpublished opinion, the Illinois Supreme Court has held that the termination of parental rights does not extinguish a child support obligation unless the child is being adopted. Thus, a father whose parental rights are terminated must continue to pay support for a child in foster care. Relying on statutory language that refers to "a child sought to be adopted" the court held that merely being available for adoption is not sufficient to sever the responsibilities to the child. Three judges dissented. Illinois DHFS v. Warner, Ill., Illinois Supreme Court, January 25, 2008.

To view the opinion and for more information, go to the Family Law Prof Blog at http://lawprofessors.typepad.com/family_law/2008/02/case-law-develo.html

CHINS cases: Parents have the right to counsel.

2008-02-05T18:39:00.000-05:00

The Massachusetts Supreme Judicial Court acknowledged today that parents are entitled to intervene and to have counsel (appointed if indigent) in Child in Need of Services (CHINS) cases when the court is considering granting custody of their children to DSS. Describing the statutory scheme as one capable of "substantial" intrusion on the parent-child relationship and children as "'those most dear' to parents", Justice Ireland (a former Juvenile Court judge) ruled that "pursuant to G.L. c. 119, § 29, after a child is adjudicated a child in need of services, a parent is entitled to counsel at the dispositional phase of the proceeding if custody of the child could be granted to the department." In the Matter of HILARY (and a consolidated case), SJC-10036 (argued October 2, 2007, decided February 5, 2008).

Corporal punishment

2007-12-16T17:47:00.000-05:00

Following a discussion on the Arlington email list about anti-corporal punishment legislation that Rep. Jay Kaufman filed on behalf of Arlington resident Kathleen Wolf, Rep. Kaufman posted his rationale for testifying in favor of the bill.

My reply to Rep. Kaufman's post and letter to the editor:

I believe that the Department of Social Services (DSS) provided misleading statistics to the Legislature that Rep. Kaufman cited in his testimony and Letter to the Editor concerning the corporal punishment bill (The Advocate, December 6, 2007) .

My experience as an attorney who has represented parents and children in abuse and neglect cases for almost 30 years tells me that the "19,000 cases of abuse reported to DSS in the 3rd Quarter" almost certainly included "incidental or minor physical contact" that the bill exempts and its proponents say they are not concerned about.

The mandated reporting statute (General Laws chapter 119, section 51A) is interpreted by DSS to require reporting whenever there is any suspicion of abuse or neglect.

I have had two cases already this quarter and several more in my career in which DSS decided to "support for abuse" in cases where there was merely a "spanking" or "a swat". Involvement of DSS in those families and its erroneous findings that there was abuse occurred even though "abuse" is defined in DSS's own regulations and the Supreme Judicial Court's 1999 *Cobble* case as requiring more than brief, minor pain and a rapidly fading red mark.
The referral of 1,200 cases to the District Attorney (DA) level is cited as meaning that "there was compelling evidence of abuse and prosecution was warranted." Not so. Under DSS regulations referral to the DA merely means that a DSS "investigator" has determined that there was "reasonable cause to believe" that certain serious kinds of abuse had occurred. "Reasonable cause" does not require physical evidence or even medical confirmation.

If the cited statistic was even the number of cases referred by DSS on which DAs filed criminal cases, maybe it would be an indication that someone had determined there was "probable cause" to believe a crime had been committed. That is not what a DSS referral to the DA means. "Reasonable cause" in DSS-speak does not equal "probable cause." Rarely are any of the 19,000 reported cases presented to a court or even to anyone outside of the intake unit for independent fact-finding determinations.

The constitutional burden of proof for criminal cases is "beyond a reasonable doubt." Courts have ruled that family relationships can be permanently severed upon "clear and convincing evidence." To temporarily remove a child from a family into foster care while the court determines if the child is at risk of harm requires only "a fair preponderance of the evidence." But DSS referring a case to the DA is an even lower standard -- "reasonable cause to believe" that abuse has occurred. The fact that only "1,200 of [the 19,000 reported cases] "advanced to the DA's level" means that 17,800 were either "unsupported" or were found not to have any evidence of serious abuse.

Yes, abuse is a serious problem and should be uncovered, prosecuted and prevented. Children should be protected from it. But, if this bill passes DSS, an agency that already involves itself with 80,000 cases per year (many of which are not significant enough to refer for law enforcement investigation), will have an excuse to continue its micromanagement of parents who do not conform to its belief that all physical contact in discipline is harmful and warrants intervention.

I am certainly in favor of the legislative deliberations that Rep. Kaufman's testimony suggests but I think focusing on corporal punishment and giving DSS additional incentive to investigate families that use it reasonably, runs the risk of driving parents underground with their questions about how best to raise their children. If medical and other childcare professionals must report a family to DSS every time there is a suspicion of the use of corporal punishment, insecure parents may refrain from asking for advice.

So, yes, have the debate; reforms are needed. The Legislature should consider requiring a judicial determination of probable cause or real, documentable exigent circumstances (as I believe to be required by the Fourth Amendment to the US Constitution and Article XII of the Massachusetts Declaration of Rights) before DSS is allowed to pierce a family's privacy or take their children involuntarily into foster care.

I respectfully urge the legislature not to pass this bill. Stop abuse, prevent abuse, prosecute abuse - but keep the government out of the private affairs of families.

was published in The Arlington Advocate as a Guest Column "More on corporal punishment" and was promoted by Atty. Deborah Sirotkin Butler on the Blue Mass Group blog "Legislation on corporal punishment - protection for children or invasion of privacy ?".

The issue seems to sharply divide people between those who believe that all corporal punishment constitutes abuse or battery and should be punished and those who think that corporal punishment is a personal choice and may not warrant state intervention in all cases.

Guardianship a "Risky Strategy"?

2007-10-30T08:32:00.000-04:00

When I first started reading Justice Cowin's decision for the Massachusetts Appeals Court in Guardianship of Estelle (No. 06-P-1612, 10/29/07), I was encouraged by the statement that the trial judge's decision "cannot stand as a matter of law because the father is correct that, absent a finding of unfitness on his part, the judge is without authority to require that he share parenting decisions with others".

I didn't stop to think that the "remand for further findings in accordance with the discussion below" would result in anything other than the Appeals Court sticking to that straight forward black letter law assertion.

Unfortunately, Justice Cowin goes on to encourage the trial judge to reconsider whether actions on the part of the father that the trial judge was not willing to call abuse, neglect or unfitness still might make the father unfit "to parent this child in these circumstances at this time." [Emphasis in original.]

The opinion goes on, "Though the importance and parameters of an attachment to a foster parent or guardian have varied, the validity of considering the effect of a transfer of custody on the child as an element of the fitness of the transferee has been upheld consistently." The decision thus allows the trial judge to rethink whether the father's seeking help from the aunt and uncle during his hard times and the resulting attachment the child has to the aunt and uncle might permit denying the father's request for return of the child; without even requiring expert testimony on the issue of whether a transfer might harm the child or how such harm might be mitigated after a transfer back to the father.

As Attorney Deborah Sirotkin Butler pointed out in an email to me and posts (as AmberPaw*) on several parent and child defense attorney email lists, what this decision should make "clear, is that agreeing to a guardianship is a risky strategy for an unwed parent, especially a father, as the case law seems to be moving in the direction of making it harder and harder to retrieve a child from a guardianship, and the mere length of time a guardianship endures and the 'bonds' that form, make it hard to extract a child". [Emphasis added; questionable use 'quotes' in original.]

* Speaking of AmberPaw, you should check out her posts about DSS reform on the BlueMassGroup blog.

DSS Reform Bill

2007-09-25T12:28:00.000-04:00

Massachusetts House Bill 4191 An "Act Relative to Child Abuse and Neglect" is scheduled for public hearing tomorrow (9/26/07, 10:30 a.m. in room 222) by the Legislature's Joint Committee on Children, Families and Persons with Disabilities.

Though the bill fixes several of the issues of lack of real oversight highlighted by the Haleigh Poutre case, too much of the lack of oversight, dearth of definitions, confusing language and lack of due process for families in the current statute are left essentially untouched. What tries to look like major overhaul of the whole statutory scheme is really just a minor tune up of a small portion of what really affects families involved with the child protection system.

I am afraid that passage of the bill in its entirety will make it appear that thoughtful consideration was given by the legislature to the troubling issues that are really not addressed.

I call on Senator Spilka, Rep. Coakley-Rivera and the rest of their committee to recommend passage of the new oversight and second opinion provisions of H. 4191 but to remove the portions that merely restate the existing sections of chapter 18B and 119 until a comprehensive review and restructuring particularly recognizing parents' rights, due process, probable cause and true judicial oversight of DSS or the Department of Children and Families can be accomplished.

Special Education

2007-09-25T07:08:00.000-04:00

Watch SpEd Watch founder Ellen Chambers and her daughter, Sarah, on Medford Cablevision's award winning "Ablevision" http://youtube.com/watch?v=CgdQHeZZV5w

They made a federal case out of it!

2007-08-09T16:01:00.001-04:00

Remember that stuff that told you about the delinquency charge you (or your child) had? They said it was o.k. to admit to it even if you didn't agree 100% with the allegations because it would go away and wouldn't be a problem when you were an adult, right? They said that delinquency charges don't affect your record once you grow up, right?

Well, apparently, that is unless you get in trouble again.

What went on in juvenile court can be used against you as an adult in setting your bail and in determining your sentence for adult crimes.

Now, the First Circuit U.S. Court of Appeals has made a federal case out of it. In U.S. v. Matthews, (Nos. 05-1655, 05-1925, decided August 7, 2007) the court ruled that a Massachusetts delinquency finding could be used as a predicate violent felony to invoke the federal Armed Career Criminal Act ("ACCA") and impose a statutory minimum fifteen-year term of imprisonment. See 18 U.S.C. § 924(e)(1).

And they're not the only ones! The court cites to several other cases in which delinquency findings from various states have been held as valid bases for the imposition of those enhanced penalties.

The case isn't even about the numerous other types of collateral consequences of delinquency and other findings, including immigration, citizenship, driver's license, housing and financial aid issues. Make sure you talk about all of those with defense counsel when considering whether to take a plea deal or how vigorously to contest charges at trial.

"Unruly Schoolboys or Sex Offenders?"

2007-08-01T11:17:00.001-04:00

This article shows that what kids may think of as mere "fun" can have serious consequences that could ruin their lives.

What do you think? Is this kind of mischief just fun or something more serious. How would you represent the boys? The girls? Did the school principle or police over-react? What consequences should be considered?

Allegations and investigations

2007-07-24T18:19:00.000-04:00

Someone purporting to be a "victim advocate" for DSS wrote to the Arlington (MA) email list with the surname and street name of a "dad" allegedly being investigated for sexual abuse of his children. The writer asserted that s/he had sent the email "OFFLIST" to someone who had asked to be "updated".

The email prompted a flurry of queries and complaints including why the name wasn't on the sex offender notifications that the police department sends out, why the original poster would disclose the information and defending the privacy of the affected family.

Though I was trying to stay away from email other than actual work today, I couldn't resist commenting.

Here is essentially what I wrote to explain the differences between the sex offender info that police departments report to child-involved organizations and the allegations that the original writer said were being "investigated" by DSS:

What was reported on this list is not on the offenders list a daycare provider gets from the APD because the list is of registered sex offenders -- which occurs after conviction of certain "sex crimes" and the posts were about an accused dad, being investigated by the Department of Social Services (DSS).

It doesn't make me question the poster's motives but whether s/he understands the confidential nature of DSS's investigations (even IF s/he only intended to inform one "OFFLIST" correspondent who "asked to be updated").

An allegation that comes to DSS's attention is a VERY FAR cry from being about a "sex offender" who has to register and who would thus be on the list that day care providers and others who provide services to children get from the local police.

Certain professionals are required by law to report and DSS is required to "investigate" whenever there is "reasonable cause to believe that a child under the age of eighteen years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the child's health or welfare including sexual abuse, or from neglect, including malnutrition, or who is determined to be physically dependent upon an addictive drug at birth". [Mass. Gen. Laws chapter 119, section 51A; see also the Web Resources page of my website.]

I could go on with 30 years worth of anecdotes, regulations and court cases that explain, limit or expand upon what that means and how different it may be from a general public understanding.

Instead, I'll just summarize by saying that "mandated reporters" are often told to err on the side of caution and report even the slightest suspicion; to let the investigation process sort it out. But then DSS is cut a whole lot of slack to not actually conduct any real investigation (and just conclude that if a "mandated reporter" decided to make a report, then it should be "supported") because the law requires them to complete their investigations in 10 days (24 hours if an emergency). (See also my Boston Globe LTE of June 1, 2007 or my blog post about it.)

A large part of my practice is devoted to representing families when DSS seeks to intervene. Feel free to post comments here about your experiences. If you are seeking legal advice, however, remember that this blog is not private and you should contact my office to discuss scheduling a consultation.

Legal Ramifications of Teen Sexuality

2007-07-13T06:47:00.000-04:00

A man in Florida owes more than $10,000 in back child support payments in a paternity case involving a 15-year-old girl who he allegedly fathered when he was 16; but who, according to DNA results and the girl's mother, is not his daughter.

He still has to pay.

The state of Florida is continuing to push him to pay $305 a month to support the girl, as well as the more than $10,000 already owed. He spent a night in jail because of his delinquent payments. Why? Because he missed the deadline to legally contest paternity. The paperwork didn't reach him until after the deadline had passed.

To read the rest of the article, click here.

If you want to receive timely notice when someone files against you for support be sure to stay in touch with all your old girlfriends (unless of course doing so would violate a request or court order), submit change of address forms to the post office when you move and consider filing with the putative father registry whenever there is a chance that you may have conceived a child.

Also consider the case of Genarlow Wilson, a Georgia teen who has spent nearly 29 months in prison on a ten year sentence which a judge and numerous commentators have called unjust. Wilson had consensual oral sex with a 15 year old girl at a party when he was 17.

The Georgia statutory rape law was amended to exempt "Romeo and Juliette" cases but only for intercourse, leaving the prosecutor free to press the felony charge against Wilson. To follow his case, click here.

Massachusetts, however, has no such exemption. See Mass. General Laws chapter 265, section 23.

You can be prosecuted for consensual sex with your under-aged partner. You can be forced to pay support for children you did not consent to conceive and even children who are not yours.

Bottom line: Sexuality is complicated and has significant legal ramifications.

Time to declare our independence from the new King George?

2007-07-04T09:26:00.000-04:00

The Declaration of Independence: A Transcription
(from http://www.archives.gov/national-archives-experience/charters/declaration_transcript.html)

[MR note: These are the original words. It's scary how much of it has current significance.]

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the
public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offencesFor abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Students' First Amendment rights take a hit at Supreme Court

2007-06-25T21:16:00.000-04:00

While quoting past cases such as Tinker v. DesMoines Independent School District (school could not ban anti-war armbands) and Veronia School District v. Acton (a Fourth Amendment case that went against the student but contains the language that "children assuredly do not 'shed their constitutional rights ... at the schoolhouse gate,'") the U.S. Supreme Court ruled today that a Juneau, Alaska, high school could punish a student for unfurling and refusing to put away a banner that said, "BONG HITS 4 JESUS" at the Olympic torch parade on the public street outside the school.

In Morse v. Frederick Justice Roberts wrote the court's decision (5 1/2 to 3 1/2) noting that it was not unreasonable for the principal to conclude that "BONG HITS 4 JESUS" could "materially and substantially disrupt the work and discipline of the school" in the same way that sexual metaphors in a graduation speech did in Bethel School Dist. No. 403 v. Fraser.

Roberts wrote that Tinker allows for students' rights to not be absolute and this case is distinguishable because the Tinker court did not go through the "material and substantial disruption analysis" that was articulated in Bethel.

Presumably the answer to the question "Do high school students in public schools have the freedom under G. L. c. 71, § 82 to engage in non-school-sponsored expression that may reasonably be considered vulgar, but causes no disruption or disorder?" is still "affirmative" in Massachusetts and that a student in a similar situation would not be able to be punished without having caused an actual disruption in a Massachusetts high school. See the Massachusetts Supreme Judicial Court ruling in Jeffrey J. Pyle v. School Committee of South Hadley, 423 Mass. 283, 667 N.E.2d 869 (1996).

Non-parent visitation

2007-06-22T12:36:00.000-04:00

Today's announcement of the Massachusetts Appeals Court's decision in Alice SMITH v. Beth JONES (pseudonyms) citing the SJC's A.H. v. M.P., 447 Mass. 828 (2006), and the U.S. Supreme Court's Troxel v. Granville, 530 U.S. 57 (2000) cases prompts my observations on the subject of visitation by non-parents and the de facto parent doctrine.

The Smith and A.H. cases were ones in which the courts denied de facto parent status to former female partners of the children's adoptive and birth mothers (respectively). The cases remind us that sometimes someone who is not the legal parent of a child may have a right to continued contact with the child over a "fit parent's" objections, when that person has a consensual, co-parenting relationship with the child.

Jones was found not to want a co-parent relationship with Smith even when they were together, so Smith could not enforce one once they broke up. Though M.P. wanted to share parenting with A.H., A.H. did not submit the co-parent adoption documents that A.H. urged her to and didn't really participate as much in parenting as their co-parenting plan had envisioned. When they broke up, the courts were not going to force the mothers with their children to let the non-parent partner maintain contact.

The doctrine has also arisen in a couple of my care and protection / termination of parental rights cases in which DSS wants to terminate custodial rights of the relatives from whom it has removed custody. I have argued that though the de facto parent doctrine does not apply between the state and a relative custodian, the custodian with a relationship with the child and from whom DSS took the child must be given the rights of a parent to reasonable efforts at reunification and full standing to contest DSS actions in court.

Troxel was a grandparent visitation case in which the Washington State statute giving grandparents rights to seek visitation at any time was found to be too broad an infringement on the rights of a "fit parent" to determine whom they had to let their kids visit with.

The Massachusetts SJC interpreted its grandparent visitation statutes as not violating parents rights in Blixt v. Blixt, 437 Mass. 649 (2002). I was successful in getting a grandmother visitation with her granddaughter who was in DSS custody through a CHINS case over the mother and step-father's objections citing Blixt and my client's long-term excellent relationship with the teenaged granddaughter.

It was ironic to me in that case that DSS would keep a child in custody over her mother's objection but required us to go to court several times to overrule the mother's unreasonable objections to her mother visiting with the teen.

Boston Herald posts State Employee Payroll

2007-06-10T08:00:00.000-04:00

Under the title "Your tax dollars at work: 2007 State Employee Payroll" the online version of the Boston Herald has published a 5312 page (20 names per page) chart of "the state payroll as of April 2007".

It lists "projected salaries and earned income from last year" as "provided to the Herald by the state's Comptroller's Office." The heading says, "E-mail any inquiries to joed@bostonherald.com and check for updates in the City Desk Wired blog."

The listing provides very interesting information and comparisons. It can be searched by last name, and/ or department and can be sorted by: Last Name, First Name, Standard Hours, Annual Rate and 2006 Earnings. I noted that the 20 top paid employees in the State are all at UMass, including the head basketball coach (at number 3).

Amongst the department that can be viewed are the Department of Social Services, Department of Education, Department of Mental Health, Department of Retardation, Attorney General's Office, District Attorneys' offices, Department of Correction, specific courts and the Committee for Public Counsel Services.

There is one employee at DSS who makes more than the commissioner and there are social workers who nearly double their base pay (I guess) by working the hotline. The list of job titles within each department are also varied and interesting.

Here's the link for the top page of the list: http://news.bostonherald.com/localRegional/payroll

Praise for Attorney Rich's blog

2007-06-07T06:13:00.000-04:00

Family Law Attorney Deborah Sirotkin Butler, of Arlington, and Charley Blandy one of the founders of the Blue Mass Group (site for "reality-based commentary on politics and policy in Massachusetts and around the nation") posted favorable notes about this blog at http://www.bluemassgroup.com/showDiary.do?diaryId=7545 on June 5th.

Guest Commentary - GLAD THERE IS A NEW COMMISSIONER AT DSS

2007-06-05T15:38:00.000-04:00

Attorney Deborah Sirotkin Butler of Arlington writes:

While Bachrach [in the Boston Globe article that Atty. Rich wrote about in the previous post] laments the ouster of Harry Spence from DSS, and is so so full of praise that his column sounded like an obituary, I am glad to see change at the top of DSS.

Why?
Harry Spence for all his alleged "vision" had no training or experience in social work, child psychology or indeed any psychology, child development, or family dynamics. It showed.

Under Spence, in hundreds of cases I never saw any input from parents, therapists, or indeed, counsel into the so-called "Service Plans" that are supposedly there to assist families. What I did see is a commitment to speedy adoptions to such an extent that it looked like a deliberate desire to move children from economically struggling parents to the well-to-do.

Middle class families who already owned homes received $1400 per month or more for foster care while the homeless parent who lost their child due to homelessness received nothing.

I hope that in Angelo McClain, DSS will receive a Commissioner who understands good case work and supports that case work - rather than spending more on consultants than social workers as Commissioner Spence did.

According to testimony I heard at the House Committee on Child Abuse and Neglect, Spence allocated $16 million in 2006 to outside consultants- who were no more than extra bureaucracy - and only $11 million for case work by all DSS social workers.

Under Spence, it was harder each year to get the services the children and parents I represented needed, no matter how much more money DSS received.

On behalf of the children and parents of the Commonwealth, I hope that Commissioner McClain will follow our statutes and have TEAM meetings to design Service Plans that meet the needs of families - under Commissioner Spence that never happened in all my years doing child welfare cases. Not once.

"Assessing impact at the DSS"

2007-06-01T09:14:00.000-04:00

On June 1, 2007, the Boston Globe published Atty. Rich's Letter to the Editor (with another) under the title above.

Here's the letter:

RE GEORGE Bachrach's May 25 op-ed, "Against odds, Spence transformed lives":

I take issue with Bachrach's implication that caseload problems at the Department of Social Services are entirely a function of underbudgeting.

In my 25 years as a lawyer representing children and parents involved with DSS, I have seen that a large part of the agency's caseload problem comes from ineffective triage, failure to use existing family and community supports, and creation of distrust in the families that come to its attention.

DSS tells parents, "We are here to help," but the only "help" it offers are multiple meetings with its workers, one-size-fits-all service plans that refer parents to therapy, and a threat of removing the children to foster care if there is insufficient cooperation or "progress."

DSS exacerbates the problem by insisting that outside professionals report the slightest suspicion of abuse or neglect.

If DSS wants to cut its caseload, it should screen these reports more effectively instead of pressuring professionals who may legitimately think that DSS involvement is the last thing that a slightly troubled family needs.

© Copyright 2007 Globe Newspaper Company.

It's in the Globe online at http://www.boston.com/news/globe/editorial_opinion/letters/articles/2007/06/01/assessing_impact_at_the_dss/

School does not have to be effective in stopping peer-on-peer sexual harrassment

2007-05-31T08:25:00.000-04:00

Yesterday, in Porto v. Town of Tewksbury, __ F. 2d __ (CA1, Nos. 06-1994, 06-2139) the First Circuit, U.S. Court of Appeals, overturned a jury verdict from the U.S. District Court for Massachusetts that had awarded the plaintiffs $250,000 plus attorneys fees for not effectively stopping (special ed) peer-on-(special ed) peer sexual activity.

The First Circuit agreed with the Town that the plaintiffs had not proven that Tewksbury’s Wynn Middle School’s failure to predict continuing acts on the plaintiffs’ child by the peer constituted "deliberate indifference" to the "sexual harrassment".

The court ruled:

Under Title IX of the Education Amendments of 1972, a recipient of
funding from the United States Department of Education may be liable for damages
if "its deliberate indifference [to peer-on-peer sexual harassment] 'subjects'
its students to harassment." Davis v. Monroe County Bd. of Educ., 526 U.S. 629,
644 (1999). A funding recipient is deliberately indifferent to
student-on-student harassment when "the recipient's response to the harassment
or lack thereof is clearly unreasonable in light of the known circumstances."
Id. at 648. [T]he deliberate indifference must, at a minimum, 'cause [students]
to undergo' harassment or 'make them liable or vulnerable' to it." Id. at 645
(alteration in original) (quoting Random House Dictionary of the English
Language 1415 (1966)). In addition, the acts of sexual harassment must be
"known" to the funding recipient. Id. at 647. Finally, the harassment must be
"so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by
the school." Id. at 650.

Further citing Davis, the decision went on to say that the legal standard "does not require funding recipients to remedy peer harassment. Davis disapproved of a standard that would force funding recipients to suspend or expel every student accused of misconduct. All that Davis requires is that the school not act clearly unreasonably in response to known instances of harassment."

The whole opinion is available on the First Circuit’s website: www.ca1.uscourts.gov

A "Lite Brite" moment

2007-05-28T07:56:00.000-04:00

On March 31, 2007, the enhanced punishment provisions of "An Act Further Regulating Driver Education and Junior Operator’s Licenses" (signed January 3, 2007) went into effect. (See http://www.mass.gov/legis/laws/seslaw06/sl060428.htm)

"State officials" said, "The new law is meant to create a zero-tolerance environment for speeding or other unsafe driving by teenagers." ("Young drivers face stiffer penalties starting today," Boston Globe, 3/31/07; http://www.boston.com/news/local/articles/2007/03/31/young_drivers_face_stiffer_penalties_starting_today/)

On Saturday night, while discussing the absurdity of a law that sends a polite, teen who was only going 7 miles an hour over the limit to "Road Rage" classes; WTTK's Michael Graham referred to it as "a Lite Brite moment".

Meanwhile, last night, Peter "Zebbler" Berdovsky and Sean Stevens were on Fox News Channel's "Geraldo at Large;" still apologetic for the inconvenience the ATHF Mooninites caused in the Boston area. Zebbler urged us to have open discussions about the causes of the fear that led to an L.E.D. cartoon causing roads, waterways and public transportation to be closed. Stevens suggested that we need to consider whether we want more love or more fear.

I have found that often the administration of zero tolerance policies result in actions with zero intelligence. I hope we can add some intelligence to the Junior Operator’s Licence policy and the justice system overall by looking to Restorative Justice principles (as the AG mentioned in her nolle prosequi documents in the Charlestown District Court and at her May 11, 2007 press conference). Restorative Justice and other diversion programs examine the specific needs of offenders like the teen whom Graham was discussing.

It would serve our society better if we were to explore opportunities for expanding justice, tolerance and education. We need to shift the emphasis from fear and punishment toward "a better way" of dealing with danger and harm. (See "Your View: Another way to handle hazing," Robert E. Heskett, New Bedford Standard-Times, May 22, 2007, http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=2007705220314.)

It's not KidLaw but I couldn't resist

2007-05-26T17:05:00.001-04:00

After seeing this post from my friend and colleague Atty. Marie Saccoccio on the MassPrivateCounsel yahoogroup (for criminal and other defenders), I couldn't resist posting it here. (Sorry I don't know Marie's original source, so I can't cite it right now.)

Los Angeles County, California v. Rettele, 550 U.S. ___ (#06-605 , decided May 21, 2007)

"When the Court gets jittery, it reaches for its equivalent of a nicotine patch to calm its nerves: a good old per curiam summary reversal of the Ninth Circuit. Everyone on First Street is a little calmer after Monday.

"The plaintiffs in this case, who are white, sued under § 1983 after officers mistakenly searched their home looking for 4 black suspects. Turns out the plaintiffs had bought the home from the suspects shortly before the police got their search warrant.

"Just as it only rains when you forget your umbrella, going to sleep naked more or less guarantees that the cops will arrive that night. And so it was here. The officers rousted the plaintiffs out of the bed and forced them to make like Greek statues for 3 minutes (but probably minus the placid expressions on their faces), while police searched the rest of the house.

"The CA9 found that this treatment unnecessarily denuded the plaintiffs of their dignity and therefore their Fourth Amendment rights. Proving that turnabout is fair play, the CA9 stripped the officers of their qualified immunity. The court of appeals reasoned that once the officers saw the white occupants of the house, they should have known they had the wrong house and stopped the search.

"It took the Court 7 pages to set the law aright. Police may reasonably detain a house’s occupants during a search, to protect officer safety and the integrity of the search. Here, they did not have to abandon their search simply because they encountered persons of a different race than the suspects—“the presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well.”

"This was the rare case in which the CA9 was not politically correct enough, for the Court had to instruct that “it is not uncommon in our society for people of different races to live and work together”, or for that matter, to commit crimes together.

"Finally, the plaintiffs’ brief au naturel detention was reasonable because the suspects were believed to be armed and could have been hiding a gun under the bed covers. There was no allegation that the police left plaintiffs unclothed any longer than necessary to secure the room.

"JPS (+RBG) penned a two-page concurrence in the judgment, blasting the CA9 for issuing a hotly contested 2-1 decision as an unpublished opinion (a well-known CA9 tactic for hiding summary reversal candidates). He also restated his long-held view that the Court should not decide the constitutional merits of a case when it can more easily be resolved on qualified immunity grounds, as this one could. "

What's in store for DSS?

2007-05-24T10:20:00.000-04:00

Sean P. Murphy wrote in his article "New DSS chief emerged from his own troubled youth" in today's Boston Globe that Angelo McClain, the newly appointed Commissioner of the Massachusetts Department of Social Services, said in a telephone interview, "If we can build a system that allows the dedicated and talented people on the front lines to do their work, then children and families can reach their potential". (http://www.boston.com/news/local/massachusetts/articles/2007/05/24/new_dss_chief_emerged_from_his_own_troubled_youth/)

I agree that there are many "dedicated and talented people on the front lines," but; I wonder if "a system that allows [them] to do their work" implies further extensions of the laissez faire holdings of the 1995 Supreme Judicial Court cases of Care and Protection of Isaac and Care and Protection of Jeremy which essentially preclude judges from effective oversight of the care of children in the custody of DSS.

Shake up coming at DSS

2007-05-23T08:08:00.000-04:00

According to today's Boston Globe, it is expected that Governor Patrick will replace Department of Social Services Commissioner Harry Spence. The article (linked below) says that Spence will be replaced by "Angelo McClain, executive director of Value Options New Jersey, the private entity that handles the state's behavioral health services for children.

"In the 1990s, McClain worked in Massachusetts as vice president of the Massachusetts Behavioral Health Partnership ... ."

Not to say that Spence has been good (or bad) for DSS, but my recollection is that it was in the 1990s, when the behavioral health partnership began, that services for children with behavioral health issues became harder to obtain and harder for advocates and juvenile court judges to effectively intervene to get effective treatment for them.

I don't remember McClain from when he was in Massachusetts before. We'll have to wait to see if the "shake up" is for the benefit of the children and families of the Commonwealth.

http://www.boston.com/news/local/articles/2007/05/23/patrick_is_poised_to_detail_shakeup/

Your opinions sought

2007-05-21T08:41:00.000-04:00

Yesterday morning on Fox & Friends, Peter "Zebbler" Berdovsky and a legal analyst from NYC were asked if "the punishment fit the crime".

Since there was NO crime and NO punishment, I won't ask that question; but, rather whether, considering what happened (as summarized below), you think the resolution was fair:

- You remember the traffic delays and concern when the media called what was going on in and around Boston on January 31, 2007, a "bomb scare" or "terror alert".

- Berdovsky and Sean Stevens were arrested that night, charged with a felony and a misdemeanor, held overnight and released from Charlestown District Court on bail the following morning.

- Their families were required to tie up $5000 bail for 2 1/2 months while the defendants' charges were pending.

- The costs of the public safety operations were estimated at $1.2 million.

- Turner Broadcasting (parent company of the Cartoon Network, which hired Interference Inc., which in turn hired Berdovsky & Stevens) apologized and paid $2 million to the Cities of Boston, Cambridge, Somerville & Charlestown and to the MBTA Police.

- Since Berdovsky and Stevens did not have "intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons" (http://www.mass.gov/legis/laws/mgl/266-102a.5.htm) and since there was a recognized, legitimate purpose, protected by the First Amendment, in the actions they took, they should not have been able to be found guilty of the charges brought.

- Berdovsky performed 80 hours of community service and Stevens performed 60 hours at the Spaulding Rehabilitation Hospital (with excellent reports from SRH of their work and commitment there).

- They both apologized for the fear, confusion and inconvenience that the ad campaign caused here but that they did not foresee and could not have anticipated.

- On May 11, 2007, the Attorney General nolle prosequied the charges, ending the case.

- She asserted that the resolution was better for all involved than would have been the result if they had proceeded to trial rather than the "Restorative Justice" (see http://www.macucc.org/emj/restorative_justice.htm) disposition that was agreed upon.

So, was it a fair resolution?

Or, in Restorative Justice terms: Did it return the injured parties, the actors and the community to their positions before the harm and restore them to right relationship with each other?

[In future blog posts I will be relating the facts of children's and family law cases (mine and others) and seeking your opinions about the fairness of those resolutions.]

For Artists in Ad Scare, Life Goes On

2007-05-19T09:19:00.000-04:00

Peter Berdovsky (left) and Sean Stevens, at the center of the Cartoon Network scare, told their side of the story yesterday. (PAT GREENHOUSE/GLOBE STAFF)

By Michael Levenson, Globe Staff, May 19, 2007

CAMBRIDGE -- Their star power, they realize, is fading. Rain-soaked and picking at a plate of french fries, they said they are broke. Thursday, they were already through security at Logan International Airport, on their way to Rockefeller Center in Manhattan, when they were dumped by the "Today Show."

Three-and-a-half months after they scared the city by installing electronic advertisements on highways and bridges, Sean Stevens and Peter Berdovsky are crash-landing back to reality, to their old lives as penniless artists and aspiring musicians, sharing an apartment and studio in Charlestown.

The adjustment has not been easy for the wise-cracking duo, who gained notoriety for holding a press conference after their arraignment in which they refused to talk about anything but hair. But now Attorney General Martha Coakley has dropped criminal charges, which could have put them behind bars for five years. Late-night comedians have abandoned riffs about terrorism and the Cartoon Network.

And Berdovsky and Stevens said yesterday they like it that way. Notoriety, they discovered, was a real bummer.

"It became this extreme stress, to a point where I think both of us had these months where we just didn't want to deal with anything, and we just wanted to curl up into a ball and sleep somewhere for days and days and days," said Berdovsky, sipping a Sam Adams at the Middle East Restaurant in Central Square.

In their first extended interview, Berdovsky, 27, and Stevens, 28, lashed out at the news media, railed against authorities, and expressed some remorse for their actions. "A lot of people were under the impression that we didn't care about the people of Boston, and that's furthest away from the truth," Berdovsky said.

"We are the people of Boston," said Stevens, chiming in. "I've lived here for my whole life. Peter's been here for 10 years."

Berdovsky, with his long dread locks, and Stevens, with his shaggy page-boy cut, have been friends for four years, since they were the last guests dancing at a party. They share a penchant for at-times rambling soliloquies.

"Everybody at some point dies, and we need to focus on making our lives as good as possible and maximizing the most art-joy-filled world that we possibly can, for the people who come after us," said Stevens, expounding on his world view, as Berdovsky listened intently. "That's what life is. And that's what we've pretty successfully done for the last several hundred thousand years."

In January, they put up the lighted electronic ads for a show called "Aqua Teen Hunger Force." They wanted to make $300 each and thought the ads would make people happy, they said.

But the ads were mistaken for possible bombs on Jan. 31, and police shut down roads and subway stations. At first, Berdovsky took his video camera and filmed the police in Charlestown. He said he did not know the signs were causing the scare. When he realized they were , he said, he called Interference. Inc, the marketing firm that hired him, and they told him to sit tight.

Within hours, he and Sevens were arrested. Coakley charged them with placing a hoax device in a way that causes panic, which carries a maximum sentence of five years in prison, and a misdemeanor count of disorderly conduct. She and other officials denounced them as irresponsible hoaxers who had terrified the city.

"It's depressing, because for me I know I'm all about peace and love, truly, and to have me be in jail for something that I would never, ever, ever do, is just painful," Berdovsky said.

"It felt like a slap in the face," Stevens added.

After their arraignment, they said they chose to talk about hair to thwart what they called a fear-mongering media. The stunt angered many who said Stevens and Berdovsky appeared callous. But it was broadcast nationwide and picked up by comedians. Stevens and Berdovsky said they were deluged by thousands of e-mails and well-wishers.

"Ninety percent of them said: 'You are my hero. I worship you,' " Berdovsky said. "I'm not kidding. That's what it was, and I didn't mean to put myself in this position, but in all honesty it was very refreshing after seeing myself portrayed as a villain on national TV."

Last week, Coakley dropped the charges after Berdovsky performed 80 hours and Stevens 60 hours of community service at Spaulding Rehabilitation Hospital. They designed a mural and helped maintain the hospital's docks on the Charles River. Now, Berdovsky and Stevens said they want to return to their old routines, making music and art.

"Our attitude toward everybody is just one of love," Berdovsky said. "We want to be loved, and we want to love other people."

Michael Levenson can be reached at mlevenson@globe.com.

http://www.boston.com/news/local/articles/2007/05/19/for_artists_in_ad_scare_life_goes_on/

Boston Mooninite Charges Dropped

2007-05-16T21:37:00.000-04:00

Berdovsky and Stevens (pictured at left) were arrested on the day of the incident (1/31/07) and charged with placing a hoax device to incite panic, a felony charge that carries a five-year maximum sentence, and one count of disorderly conduct, a misdemeanor.[17] At their arraignment on 2/1/07 Both pleaded not guilty to the two charges and were later released on a $2,500 cash bond.[2]

At the arraignment Assistant Attorney General John Grossman claimed that the two were trying to "get attention by causing fear and unrest that there was a bomb in that location."[20] Michael Rich, the lawyer representing both men at the time, disputed Grossman's claim, asserting that even a VCR could be found to fit the description of a bomb-like device.[20] Judge Leary said that it will be necessary for the prosecution to demonstrate an intent on the part of the suspects to cause a panic. The judge continued "It appears the suspects had no such intent, …but the question should be discussed in a later hearing." [20]

A small crowd of supporters gathered outside of the courthouse that day to protest the perceived overreaction by authorities. At a press conference held outside of the courthouse following their release on bail, Berdovsky, Rich and Stevens refused to comment on the case. Berdovsky and Stevens instead insisted on discussing only hairstyles of the 1970s, prompting annoyed comments and accusations of apathy from the press.[8]

Rich and Berdovsky had Attorney Walter Prince and his associate Attorney Jeffrey Pyle of Prince, Lobel, Glovsky & Tye join the defense team on behalf of Berdovsky and negotiations ensued with the Massachusetts Attorney General's office. Between subsequent court appearances on March 7 and 30, 2007, Rich introduced the concept of Restorative Justice (see http://www.macucc.org/emj/restorative_justice.htm) to the negotiations. Bersdovsky and Stevens voluntarily performed data entry, clean up, graphic design and video editing work for Spaulding Rehabilitation Hospital between March 30th and May 10th.

On May 11, 2007, the prosecutors dropped the charges after the men completed 60 and 80 hours of community service and read apologies in court. (See http://www.ago.state.ma.us/sp.cfm?pageid=986&id=1889 and http://www.ago.state.ma.us/filelibrary/Nolle%20Prosque.MP3) [22]

http://en.wikipedia.org/wiki/2007_Boston_Mooninite_Scare

The infamous "Hair Styles of the 70s" Press Conference

2007-05-16T21:00:00.001-04:00

The two defendants, Sean Stevens and Peter Berdovsky, staged a "press conference" with the media after their plea of NOT GUILTY. Defending Attorney Michael Rich had advised his clients NOT to discuss the case with anyone until the case was resolved. Although the event was covered by all major media channels, by refusing to answer questions about anything other than hairstyles of the seventies the two defendents succeeded in keeping the details of their case confidential and emphasized the absurdity of the media response.

http://www.youtube.com/watch?v=wR_29Oz93mk

Rich Defends the Boston ATHF Team at Arraignment

2007-05-16T20:24:00.000-04:00

See what CNN reported about the case of the Boston area "Aqua Teen Hunger Force Bomb Scare". The Cartoon Network's inventive marketing campaign was mistaken for a bomb scare that shut down the city of Boston for hours. Attorney Michael L. Rich was the defense attorney for the two men who were arrested for installing the graphic devices on location.
http://www.cnn.com/2007/US/02/01/boston.bombscare/

Welcome

2007-05-16T18:21:00.000-04:00

Welcome to the interactive pages of the Law Office of Michael L. Rich.

Michael Rich is an experienced Massachusetts lawyer concentrating in Children's and Family Law; especially accusations of abuse or neglect of a child or children.

Visit the official Law Office website at www.michaelrichlaw.com