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The Massachusetts Bar Association is now on Twitter.  Click here to get up-to-date information on MBA CLE programs and conferences, legislative activities and events. In addition, the MBA will post daily legal headlines and published e-Journal and Lawyers Journal articles.

Race and Class and Criminal Justice in Rhode Island

For anyone who wants a quick read on the devastating effects of race and class on the criminal justice system, you should check out No Equal Justice by Georgetown law professor David Cole.

For a much closer home look at the effects of race and class, one need look no further than the criminal cases of Ryan Greenberg and Graeme Kapko.  Both defendants – white, men aged 17 – killed innocent victims.  Greenberg killed a young man by steering a boat over him.  Kapko killed a mother of two returning from her factory job by steering his car, going 85mph into her car after returning from a boozing party.  Both young, white men hired powerful lawyers: William Devereaux for the former and House speaker William Murphy for the latter.  And punishment for these deaths?  Greenberg gets a ten year sentence with only work release and probation.  Kapko gets only two years of home confinement and no jail time.

Compare these two death cases with that of defendant Abimbola Johnson, an 18 year old, black girl accused of killing an innocent victim.

Judge Edwin J. Gale called Johnson a “dangerous person with a dark heart,” before he sentenced her to the maximum allowed under the conditions of her plea agreement: 50 years, with 25 to serve at the Adult Correctional Institutions and 25 years suspended. Johnson will also serve 25 years of probation, pay court costs and undergo anger-management counseling.

While clearly the details of these three cases can be debated, the difference in disposition can be hardly justified without getting into issues of race and class.

Thankfully, there are justices like Superior Court Associate Justice O. Rogeriee Thompson, currently a likely nominee to the First Circuit Court of Appeals, who understand the harsh disparities in dispensing justice.  This is from a 9/25/2000 story from the Providence Journal:

Superior Court Judge O. Rogeriee Thompson said the state court system needs to study hiring and sentencing of minorities to see if they are treated unfairly.

Thompson, a member of the state judiciary’s permanent advisory committee on women and minorities in the courts, said judges and court employees also need sensitivity training to provide a “fairer and more just court system.”

Generally, surveys indicate that Rhode Islanders find lawyers too costly, litigation takes too long, and judges treat whites better than minorities.

In interviews at various courts earlier this year, residents voiced as much.

“If you are a black male like myself, even before you explain your story, they’ve already concluded what the sentence will be,” said William Parker, 21, of Providence, who was leaving District Court.

Debra Constant, an unemployed 22-year-old from Providence, complained during a break from a Family Court hearing that “I’m a lower-class woman. I don’t have money” to hire a lawyer who could help her succeed in court.

“I don’t have the power,” Constant added, “and I sometimes think the judges side with people with more power. They say innocent until proven guilty; in my case, it’s guilty until proven innocent.”

And this 4/6/99 story from the Providence Journal:

Is there a racial bias in Rhode Island’s criminal justice system?

In her 11 years on the bench, first in District Court and now in Superior Court, Judge O. Rogeriee Thompson thinks she has seen it.

Speaking at a recent forum at Brown University, Thompson recalled one day when the bias struck her as particularly clear.

She was in District Court, Wakefield, handling arraignments. One after another, she was presented with a group of white men and a group of black men.

The white men were seniors at one of Rhode Island’s top private schools, Thompson said. They were staying in a house on Block Island, and just for fun, they broke into several neighbors’ houses and took their stereos and other items.

Normally, people who do that are charged with breaking and entering, a felony, Thompson said. But this time, the police took a stance of “boys will be boys” and charged them only with trespassing.

The prosecutions officer recommended that the cases be filed for a year – to be dismissed if the young men stayed out of trouble – and that they be ordered to make full restitution and perform community service.

“We don’t want to wreck their whole future,” Thompson recalled him saying. She took his advice.

Then came the black men.

They were three students from out of state who had been driving to Boston, Thompson said. The state police stopped them on the highway. They were ordered to get out of the car, and the car was searched. A knife was found in the console, and they were all arrested.

The charge was possession of a knife, a misdemeanor punishable by up to one year in prison and a $ 1,000 fine. The young men were ready to plead guilty at their arraignment, Thompson said.

She was appalled.

First of all, she told the trooper who brought them in, having a knife in the console of one’s car is not a crime. The law prohibits carrying a concealed weapon on one’s person, she said. If it banned the possession of knives altogether, she said, “How would you take home a set of steak knives you’d just bought from Apex?”

Thompson dismissed the charges and set the students free. But years later, she still thinks about them.

“It was the starkest example of the lingering effect of racial disparity in our criminal justice system,” she said.

And here we are, nearly ten years later and we are still seeing the “lingering effects of racial disparity in our criminal justice system.”

Hot Coffee: the Movie

Typically, the McDonald’s “hot coffee case” has been tossed out as a example of ‘frivilous lawsuits.’  However, what really happened in that case?  A new film, Hot Coffee, takes you through the following:

• What really happened (the facts have little in common with the urban legend);
• the injuries, (gut-wrenching);
• McDonald’s refusal to pay for the victim’s medical bills (the family approached McD’s without a lawyer, just looking for the bills to be paid, only to be rebuffed)
• Why the jurors (in their own words) stand behind their award.

For more information on the film and the 501(c)(3) organization supporting it, click here.

Study Links Tanning Beds and Cancer

A new study has concluded that the use of tanning beds raised the risk of skin cancer by 75 percent among persons who began tanning before age 30. The risk assessment, produced by the International Agency for Research on Cancer, now classifies tanning beds in the same category as carcinogens such as cigarettes. The study appears in the medical journal Lancet Oncology.

Sen. Whitehouse Supports Elections, not Appointments, for Senate Vacancies

Kudos to Sen. Sheldon Whitehouse, who has come out in support of Sen. Feingold’s proposed amendment to the US Constitution on U.S. Senate vacancies.  The bill is scheduled for markup at 3pm today in Senate Judiciary.

Sen. Whitehouse’s Remarks on Sotomayor Vote

On the Web: Read the Release, Watch the Video

Thank you, Chairman, and thank you for your wise and fair leadership of these confirmation proceedings.  I also thank the ranking member for his fairness and courtesy throughout the proceedings.  I will be proud to vote in support of Judge Sotomayor’s confirmation to the United States Supreme Court.

I appreciate, as I know the Chairman and others do, her background as a prosecutor, and I believe her non-controversial seventeen-year record as a federal judge makes clear that she is dedicated to the rule of law, has a proper judicial temperament, and gives every party before her a fair hearing.

I also believe the unequivocal pledge that Judge Sotomayor gave me: that she will respect the role of Congress as representatives of the American people; that she will decide cases based on the law and the facts; that she will not prejudge any case, but listen to every party that comes before her; and that she will respect precedent and limit herself to the issues that the Court must decide; in short, that she will use the broad discretion of a Supreme Court Justice wisely.  She promised that and I take her at her word.

Mr. Chairman I think we are witness here to an effort to define justice in America in alignment with a particular point of view.  My colleagues are entitled to their point of view.  They are entitled to their view about guns, they are entitled to their point of view about property rights, they are entitled to their point of view about other issues.  What I resist is any effort to define that point of view as a judicial norm against which any other point of view is to be seen as an aberration, as “biases and prejudices,” to use one quotation.  In this case, I further believe that their definition of justice in America – their definition – is just plain wrong both as history and as justice.  In particular I do not wish to force, as the new judicial norm, the sort of judges who, to paraphrase a recent article on the Supreme Court “in every major case vote for the corporation against the individual, for the government against the criminal defendant, and for the executive branch against the legislature.”  I do not wish judges without empathy, who will ignore the long and proud history of the courtroom, as the last stand for many beleaguered Americans where they can get fearless justice even when all of the forces of politics, of proper opinion, and of corporate power may be arrayed against them – with judges willing to provide that fearless justice, even if it completely upsets the status quo.

I would add that I find no fault in judges who won’t, as the price of entry to the court, commit to expanding our newly minted individual right to own guns, a right that no Supreme Court for 220 years had previously noticed and that was created in a 5-4 decision by a divided court.

So I will with pride support Judge Sotomayor’s nomination.  It is an honor to serve on this committee and to vote for such a talented and exceptional person.  We all realize that Judge Sotomayor will be an historic justice, but I think we can all expect that most important she will be an excellent justice.

RI ACLU Challenges Family Court Order Restricting Free Speech Rights on the Internet

In a case raising important issues of freedom of speech on the Internet, the Rhode Island ACLU has intervened in Family Court on behalf of a Barrington woman who has been barred by the Court from posting on the Internet any details about a pending Family Court custody proceeding in which her brother is involved. In a motion filed with the Court, RI ACLU volunteer attorney H. Jefferson Melish calls the ban a violation of Michelle Langlois’ First Amendment rights. The motion also argues that the Family Court had no jurisdiction to issue the order because the proceeding was filed in Kent County, even though neither party lives in that county.

Ms. Langlois’ brother is involved in a child custody case with his ex-wife. After Ms. Langlois posted information about the case on her Facebook page, the ex-wife filed a “domestic abuse” petition against her, claiming that Ms. Langlois’ postings constituted “harassment.” The ex-wife’s petition sought a court order barring Ms. Langlois from posting any information about the case on the Internet. In late June, Family Court Judge Michael Forte issued such an order. When Langlois contacted the ACLU about the matter, the ACLU agreed to provide her representation to challenge the constitutionality of the Internet restriction.

RI ACLU executive director Steven Brown said today: “The court order issued in this case is a significant intrusion on the First Amendment. Every person has the right to comment on public court proceedings, and the court order that prevents Ms. Langlois from doing so on the Internet is precisely the sort of prior restraint on speech that the First Amendment was designed to protect against. Ms. Langlois should no more be barred from speaking out about this case than should a reporter seeking to post information about it on a newspaper web site. We are hopeful that this troubling order will be dismissed.” Michelle Langlois added: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”

A court hearing on the ACLU’s motion to dismiss the petition is scheduled for July 29th at 11 AM in Kent County Family Court.

Rhode Island Landlord Charged with Housing Discrimination

The U.S. Department of Housing and Urban Development announced yesterday that it has charged a Cranston, Rhode Island, landlord and real estate company with two separate acts of housing discrimination. HUD charged Velna Marti Irrevocable Income Trust, its owner and two real estate professionals at RE/MAX Five Star with violating the Fair Housing Act by refusing to rent to families with children.

The Fair Housing Act prohibits a housing provider from discriminating based on race, color, national origin, religion, sex, familial status or disability. The law includes refusing to rent to families with children (unless the housing meets certain requirements for housing for older persons) and making or publishing, in print or on-line, any statement or advertisement that states a limitation against families with children.

According to HUD’s charge, in March of 2008, respondents Cheryl Lee Brill and Wally Wetherbee, a realtor and administrator for Re/Max, advertised for rent on craigslist.com a house owned by respondent Velna Marti Irrevocable Income Trust. The ad stated, “This is an immaculate, spacious three-bedroom house for rent…No cats, dogs, or children please.” Two families with children responded to the advertisement. When they mentioned they had children, Wetherbee allegedly refused to show them the property, saying that the owner would not rent to families with children. The owner eventually rented the house to three men without children.

“The discriminatory language that was used in the ad, along with the agents’ disregard for the law, denied two families with children the opportunity to rent the home of their choice,” said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity (FHEO). “This, simply, is unacceptable. No family should be denied housing because they have children. And landlords and real estate professionals may not use the Internet to avoid the Fair Housing Act. HUD is committed to enforcing the law, and real estate agents must follow the law, not their clients’ discriminatory desires.”

The HUD charges will be heard by a United States Administrative Law Judge unless any party to the charge elects to have that case heard in federal district court. If an administrative law judge finds after a hearing that discrimination has occurred, he may award damages to the complainant for its loss as a result of the discrimination. The judge may also order injunctive relief and other equitable relief to deter further discrimination, as well as payment of attorney fees. In addition, the judge may impose civil penalties in order to vindicate the public interest. In the event of an election, a federal district court judge may also award punitive damages to the complainant.

Greenberg gets 10 years, 5 to serve, in Barrington Boating Accident

Breaking news from the Providence Journal in the case of Ryan Greenberg:

Ryan Greenberg was sentenced Wednesday to 10 years, with 5 years to serve and 5 years of probation.

Greenberg is to serve 30 of those months at the Adult Correctional Institutions in Cranston in minimum security and could participate in the prison’s work release program, if eligible, Superior Court Judge Daniel A. Procaccini said.

He is to serve the remaining 30 months in home confinement.  Greenberg gets credit for time already served. Greenberg is to report to the ACI Monday morning.

Meanwhile, Judge Procaccini rightly took aim at those who let the conditions ripen for this tragedy to occur:

Superior Court Judge Daniel A. Procaccini lashed at the Greenbergs and the Barrington police for their roles leading to the tragic death of Patrick Murphy on July 17, 2007.

“There was an obvious lack of close parental supervision,” Procaccini said, noting Greenberg had been diagnosed with behavioral disorders as early as age 7. At age 14, he said, documents showed Greenberg had undergone an extensive neurological evaluation that showed emotional and academic deficits and presented various treatment alternatives.

“None were [pursued] in a meaningful fashion,” Procaccini said.

Meanwhile, he said, the Barrington police allowed illegal teenage behavior, including underage drinking, to continue.

“The lack of diligence and follow through by the police is obvious to the court,” Procaccini said.

Most of the youths who were present at the July 17, 2007, fatal crash had had an encounter with the police earlier that afternoon as they drank alcohol at a well-known drinking area for teens.

Congressman Kennedy Blogs on (Mental) Health Care Reform

This morning, Congressman Patrick Kennedy blogged on The Huffington Post and argued for greater integration of mental health services in the health care reform discussions.

Last year, a bill I introduced called the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act became law. On that day, a monumental victory was achieved for the over 25% of Americans who no longer have to face discrimination from their insurers when it comes to their mental health care. That day was a victory for Americans everywhere, as a civil rights gap was closed in this country, and a long standing form of discrimination was ended. I am proud to say that this victory was expounded upon in the health care reform bill currently before the House of Representatives. It is clear that the 113 million Americans with mental illnesses whose coverage was improved by mental health parity were heard loud and clear with the passage of mental health parity — discrimination will no longer be tolerated, and our minds can no longer be treated as separate from our bodies.

Click here to keep reading.

Lincoln Chafee Readies Independent Campaign for Governor

Writing in the Boston Globe, former Providence Journal reporter Mark Arsenault has a comprehensive look at former Senator Lincoln Chafee’s independent bid for Governor.

John Holmes Jr., former Rhode Island Republican Party chairman, believes Chafee has a chance to make history as an independent.

“All bets are off in this election because Linc Chafee is not your normal independent candidate,’’ he said. Chafee’s assets include the well-known political name, great family wealth, proven ability to raise money, and the sense among many that his 2006 defeat was more about party politics than anything personal.

“Some people feel like they owe him a vote,’’ Holmes said.

“This is a smart move on Linc’s part,’’ said University of Vermont political science professor Garrison Nelson. “New England’s robust tradition of electing independents should work for him.’’

Nelson noted that Maine has elected two independent governors in the past three decades, James Longley and Angus King; Connecticut elected Republican-turned-independent Lowell Weicker as governor in 1990, and embraced Senator Joe Lieberman’s independent candidacy for reelection in 2006. Vermont’s junior senator, Bernie Sanders, is an independent who caucuses with the Democrats.

Certainly, many Democrats and Independents appreciate Chafee’s anti-war vote and his early support and advocacy for Barack Obama in the Democratic primary.  However, others remain wary of the influence of longtime Republicans like Holmes, quoted above, on a possible Chafee administration.

Meanwhile, East Bay attorney Richard Humphrey and his wife are hosting a fundraiser for Chafee this Friday, July 24 from 9:00am to 11:00am at the Sakonnet Point Club (11 Bluff Head Avenue in Little Compton).  The (funky) ticket – available here – has a suggested donation of $250.

Fundamentals of MA Civil Motion Practice

The Massachusetts Bar Association is hosting a CLE seminar on the “Fundamentals of Civil Motion Practice” on Tuesday, July 28th from 4oopm to 700pm at 20 West St. in Boston.

Nearly every civil case involves some aspect of motion practice. This seminar will address the procedural and substantive requirements of effective motion practice in both the state and federal courts, including procedural requirements for filing and drafting motions, advice on drafting motions and a discussion of the substantive aspects of common civil motions.

Featuring program chair:
Philip M. Hirshberg, Esq.
Morrison Mahoney LLP, Boston

Click here for more info.

Rhode Island’s 51st Chief Justice: Paul A. Suttell

Congratulations to the new Chief Justice of the Rhode Island Supreme Court: Justice Paul A. Suttell, who was sworn in today by Governor Don Carcieri as the state’s 51st chief justice.  The Providence Journal has all of the exciting details here.

Suttell, 50, has served on the Supreme Court since 2003.  Prior to that, he was on the Family Court bench for 13 years and, prior to that, he was a State Representative from 1983 to 1990.   In addition, Suttell practiced at the law offices of Beals & DiFiore and Crowe, Chester & Adams, and was legal counsel to the Rhode Island House Minority Leader.  Suttell graduated from Northwestern University and Suffolk University Law School.   He is a resident of Little Compton and is an active member of the Sakonnet Preservation Association.

Providence Journal Photo by Bob Thayer

Sen. Sheldon Whitehouse Questions Sotomayor

The Safety of Cribs

One of the most precious items in a house – a baby crib – may not be as safe as you think:

On July 2, the U.S. Consumer Product Safety Commission announced the recall of 400,000 Simplicity drop-side cribs because they pose a risk of suffocation. The plastic hardware can break or deform, creating a potentially deadly gap between the drop side and the crib mattress, federal officials said.

It’s the latest in a series of Simplicity recalls, prompting CPSC officials to urge consumers, day care providers, thrift store operators and online sellers to make sure they don’t have any of the dangerous products. Simplicity is out of business.

But similar hazards have been found in cribs made by more than a dozen other companies, federal records show. Since 2007, more than 4.6 million cribs have been recalled. It’s likely many of them are in homes without needed repairs because product recalls often have limited effectiveness, experts said.

For full details on crib recalls, go to www.cpsc.gov/cribs or call 800-638-2772.