Patricia A. Sullivan sworn in as Rhode Island Federal Magistrate Judge

The Providence Journal reports on Monday’s swearing-in of Patricia A. Sullivan, an attorney with over 30 years of experience, as Rhode Island’s first female federal magistrate judge.

A former partner with Edwards Wildman Palmer LLP, Sullivan replaced U.S. Magistrate Judge David L. Martin after his retirement Sept. 30.

(…) “I am humbled by the awesome responsibility,” Sullivan, 61, said.

Her 38 days on the job to date, listening to the stories of people, small businesses and large corporations, have been more powerful than she could have imagined, she told the crowd.

She vowed to follow the words of Socrates and answer wisely, consider soberly and decide impartially.

Senior 1st U.S. Circuit Court of Appeals Judge Bruce M. Selya was among the speakers to praise Sullivan as a person of intelligence, industry and integrity.

Deming E. Sherman, her colleague of 34 years, credited her as a trailblazer as the first mother in the firm who spent Saturdays in the office with her two young sons.

Her youngest brother, Michael J. Sullivan, said she possessed the integrity, knowledge of the law, diligence and compassion present in the finest judges.

Sullivan’s selection was universally-praised as she is well-liked and well-regarded in the legal community.  Legal insiders predict that she will be a terrific jurist.

Courts, States remain Divided over Cell Phone Searches

The New York Times today reviewed the state of the law regarding the legality of law enforcement searches of cell phones without warrants today.

Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.

(…)“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.  A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.

Recently, in Rhode Island, in the case of State v. Patino, C.A. No. 10-1155, Rhode Island Superior Court Judge Judith C. Savage ruled that Michael Patino, a man accused of the 2009 killing of his girlfriend’s 6-year-old son, (1) had a reasonable expectation of privacy in his text messages and (2) that evidence from his cell phone was collected illegally, before police obtained search warrants.

The Court also ruled that because of the illegal search, almost all the evidence obtained by police – including the text messages, all cell phones and their contents, all cell phone records, and critical portions of the Defendant‘s videotaped statement and his written statement given to the police – was tainted and could not be used at trial.

“Cell phones have replaced telephones. People send and receive billions of text messages to and from their cell phones daily. Text messaging, especially among young adults, has become an oft-employed substitute for face-to-face conversations, cell phone conversations, or email. Accordingly, this court finds that it is objectively reasonable for people to expect the contents of their electronic text messages to remain private.

Read the full opinion here.

Rhode Island Supreme Court Vacates Conviction of Juan Diaz

The Supreme Court of Rhode Island has vacated the second degree murder conviction of Juan Diaz in the death of his wife Mayra Cruz in the case of State of Rhode Island v. Juan Diaz.

The defendant, Juan Diaz, appeals from a judgment of conviction on one count of second-degree murder and one count of using a firearm while committing a crime of violence. On appeal, the defendant first contends that the trial justice erred in failing to grant his motion for a judgment of acquittal on the second-degree murder charge; the basis for that contention is the defendant‟s subordinate assertion that the state failed to provide legally sufficient evidence for a jury to find that he acted with malice in connection with the death of the victim. The defendant additionally contends on appeal that the trial justice erred in omitting the phrase “criminal negligence” from his instruction to the jury concerning involuntary manslaughter and instead used “confusing language,” which made it difficult for the jury to distinguish the crime of involuntary manslaughter from the crime of murder in the second degree.

For the reasons set forth in this opinion, we affirm in part and reverse in part and vacate the judgment of conviction.

(…)

We hold that, in light of the facts of the instant case, the trial justice, in instructing the jury concerning involuntary manslaughter, committed reversible error in failing to include an adequate reference to the concept of criminal negligence….

Read the full opinion here.

Rhode Island Supreme Court update – June 28

The Rhode Island Supreme Court issued an opinion and an order today.

• Supreme Court opinion in David Higham v. State of Rhode Island, No. 2011-87, postconviction relief, with Justice Flaherty writing the unanimous opinion of the Court.  The defendant raised three issues on appeal: (1) right to counsel at his second postconviction-relief hearing, (2) error over refusal to review the denial of parole in the context of a postconviction-relief proceeding, and (3) error over finding of res judicata relative to allegations of “actual innocence” and “jury taint.”  The Court considered each of the three claims and affirmed the ruling of the Superior Court.  The full opinion is here.

•   Supreme Court order in State of Rhode Island v. Jose Tapia, No. 2010-338, sentencing appeal.  The defendant timely filed an appeal from a Superior Court order denying his motion to correct an illegal sentence and he argues error in that (1) the arson charge of which he was convicted should have been merged with his felony murder convictions; and (2) as such, double jeopardy. The Court affirmed the Superior Court’s order noting that the “defendant’s motion is not appropriate under Rule 35″ and “[f]urthermore, because the crime of arson in the first degree carries a penalty of up to life imprisonment, the sentence imposed in the instant case— viz., twenty years at the Adult Correctional Institutions—was not an illegal sentence in the context of Rule 35.”  The full order is here.

Make sure to follow the Rhode Island courts on Twitter here.

Senate Ready to Stiff Arm McConnell?

The Providence Journal is reporting that the United States Senate might continue to ignore the over-worked and back-logged US District Court in Rhode Island by not having an up-or-down vote on President Obama’s nominee to the Court: John (“Jack”) J. McConnell (who has widespread, bipartisan support for his nomination).

Senate Republicans have permitted several votes in recent days to confirm non-controversial nominees to the federal courts. But they have shown no sign of allowing floor votes on four nominees, including McConnell.

With time running out on the lame-duck legislative session, meanwhile, the majority Democrats have not taken the time-consuming steps needed to force confirmation votes for McConnell and the other controversial nominees.

The Associated Press reported Monday that Republican and Democratic Senate leaders had made an agreement to allow confirmation votes on at least 19 non-controversial nominations to the judiciary –– 10 of whom have already been confirmed without dissent. The offices of Majority Leader Harry Reid and Minority Leader Mitch McConnell would not confirm the AP report.

AP, citing unnamed sources, said the Democrats agreed in return not to seek votes on McConnell and three others: Goodwin Liu, a prominent California law school professor nominated to the San Francisco-based Ninth U.S. Circuit Court of Appeals, and two federal district court prospects, Louis B. Butler Jr. of Wisconsin and Edward Chen of California.

That echoes the situation last summer, when the Senate passed a consensus package of President Obama’s nominations –– including several to the judiciary –– as Congress rushed to its August adjournment. McConnell, Liu, Butler and Chen were excluded from the deal, so their nominations were sent back to the White House. Mr. Obama renominated them in September. If they fail to win Senate confirmation in what time remains of this Congress, the rules require that their nominations again be returned to the president. None of the men can then be considered for the federal bench without being renominated by Mr. Obama –– for a third time –– in the new Congress.

“We are continuing to work on an agreement with Republicans and hope to confirm as many of the president’s nominations as possible before the end of the year,” said Regan Lachapelle, a spokeswoman for Reid. Don Stewart, spokesman for the Republican leader, would not comment on the AP report.

The fact that Republican Senators are publicly threatening to filibuster a District Court nominee and that Democratic Senators can’t deliver this nominee while controlling huge majorities of both houses of Congress for the last two years is tragic in more ways than one.

U.S. Attorney Reclaims $275k in Medicare Payments from Dermatologist Ordering Unnecessary Tests

Hines Dermatology Associates, Inc., a Massachusetts based corporation with a practice and laboratory in Providence, R.I., is reimbursing $275,000 to the Medicare Program after the U.S. Department of Health and Human Services (HHS) and U.S Attorney’s Office in Rhode Island determined that unnecessary pathology services were being performed at the Rhode Island office and then billed to the federal government.

Dr. Yvonne C. Hines, M.D., president and medical director of Hines Dermatology Associates, Inc., and Dermatopath Lab, was also required to enter into an Integrity Agreement with HHS to ensure compliance with regulations, directives and programs associated with Medicare, Medicaid, and all other federal health care programs.

The civil settlement requiring the reimbursement of funds and implementation of an Integrity Agreement was announced by U.S. Attorney Peter F. Neronha and Susan Waddell, Special Agent in Charge of the regional office of the U.S. Department of Health and Human Services, Office of Inspector General.

Between mid February 2004 and early October 2007, through the practice, Dr. Hines and the lab falsely represented that some patient test results required additional and more expensive testing and thus were eligible for reimbursement by Medicare, when in fact, they were not necessary.

U.S. Attorney Peter F. Neronha commented, “Health care fraud victimizes nearly every American – whether covered by Medicare, Medicaid, or one of the many private insurers. It has rapidly become one of our most urgent, destructive and widespread national challenges; a crime for which we will have zero tolerance. Cases like this will be rooted out and those responsible will be held accountable.”

“Charging Medicare for unnecessary medical services is a crime and those that do so will be brought to justice,” said Special Agent in Charge Susan Waddell, of the Federal Department of Health and Human Services Office of Inspector General (HHS-OIG) Boston Region. “The HHS-OIG integrity agreement will monitor future activity to eliminate fraudulent billing for tests that were never needed.”

The case was handled by Assistant U.S. Attorney Dulce Donovan and John W. O’Brien, Senior Counsel, Office of the Inspector General (OIG), U.S. Department of Health and Human Services. The matter was investigated by Special Agent George E. Walford, III, OIG-HHS, Boston.

Probation Reform Becomes the Law in Rhode Island

After five years of struggling, civil rights advocates won a huge victory when probation violation reform legislation became law on Saturday, June 12th.

The legislation – S-2225 – was sponsored by Senators Perry, Levesque C, Miller, Metts and Sosnowski.  The House version – H-7347 – was championed by Rep. David Segal.

In simple terms, the bill bans the state from keeping people in prison on probation violations for crimes that are never proven.

Makes sense, right?

Well, along with Alabama and South Dakota, Rhode Island had one of the worst probation violation laws in America.  Thus, a person serving probation who was charged with another crime was considered guilty of violating the terms of his or her probation, regardless of the outcome of any adjudication of that crime.

As a result, a person on probation could have been sent back to prison for the full length of his or her suspended sentence even if no conviction ever resulted from the second charge. Often, people accused of probation violations would plead to a lesser offense, even if they were innocent of the accusation that caused the violation, because being innocent of the crime that resulted in the probation violation was not a defense that would prevent them from going back to jail on the violation itself.

Thus, the bill now requires the dismissal of any probation violation or violation of a suspended sentence that is based on a new criminal charge for which the defendant is not convicted within a reasonable period of time, or is acquitted or dismissed.

Watch this video to see how this unjust law effected so many lives in Rhode Island.

This legislation had passed the General Assembly for each of the last two years but been vetoed by the governor each time.  The bill had also been annually opposed by Attorney General Patrick Lynch (but was supported by former Attorney General Jim O’Neil).

This legislation is a great step forward for Rhode Island.

Rhode Island had the most heavy-handed probation laws in the country.   Sentences are longer than average and it’s far easier than in most places to end up back in prison for a new offense.  Violation hearings are held before the trial, so defendants have little time to line up a real defense, and charges are adjudicated at the lowest standard of proof in our legal system. And then, even if you’re later found not guilty of the act that underpinned your violation, you were forced to rot in your cell with no recourse.

Now, thanks to Senator Perry, Representative Segal and a host of community advocates such as Open Doors and DARE, the system has approved and justice has prevailed.

This is what democracy looks like.

No Deportation for Victim of Police Brutality, Luis Mendonca

The Providence Journal reports that a U.S. Immigration Court judge has ruled that there is insufficient cause to deport Luis Mendonca, the Cape Verdean national who allegedly was assaulted while handcuffed by a Providence police detective in a highly publicized incident recorded by a surveillance camera.

Judge Brenda O’Malley Tuesday ordered Mendonca freed, but he was immediately turned over to the custody of Massachusetts authorities to face a misdemeanor criminal charge by the North Attleboro, Mass., police.

Mendonca, 21, whose last known address was in Central Falls, was being held Wednesday in the Suffolk County, Mass., House of Correction pending a state court appearance, according to one of his lawyers, John P. Garan.

The U.S. Bureau of Immigration and Customs Enforcement had asked the immigration court to order Mendonca’s removal from the United States due primarily to a Rhode Island shoplifting conviction. Mendonca has lived in the U.S. since he was 8 years old and, under federal law, is a lawful permanent resident alien.

Besides the pending North Attleboro case, Mendonca also was convicted of having assaulted two Rhode Island School of Design security officers during the incident on Oct. 20, 2009 in which Mendonca allegedly was brutalized. Mendonca has appealed that conviction in Rhode Island Superior Court.

North Providence Councilmen Burchfield, Douglas & Zambarano Arrested and Arraigned

Three North Providence town councilmen, including the President of the Town Council, were arrested by federal agents today on criminal complaints charging them with extortion and accepting a bribe. It is alleged the councilmen accepted a $25,000 bribe in return for favorable votes on a zoning change for a retail development project. U.S. Attorney Peter F. Neronha announced the arrests of Council President Joseph S. Birchfield, and Town Councilmen Raymond L. Douglas III and John A. Zambarano.

To be clear, a complaint is merely an allegation and a defendant is presumed innocent unless and until proven guilty.

Birchfield, 42, Douglas, 42, and Zambarano, 47, all residents of North Providence, were arrested earlier today by FBI agents. Each made an initial appearance in U.S. District Court before Magistrate Judge David L. Martin, who released the defendants on $50,000 unsecured bond. Extortion is punishable by a maximum sentence of 20 years in federal prison. Bribery is punishable by a maximum sentence of 10 years in federal prison.

According to affidavits filed with the U.S. District Court, the three councilmen voted in favor of amending the Town’s Comprehensive Plan to re-zone a six-acre parcel of land from Commercial Professional and Residential General to Commercial General use in exchange for a $25,000 cash payment from the developer. The developer sought a zoning change to allow for the construction of a supermarket on Plympton Street near Mineral Spring Avenue.

In late summer 2008, the developer began discussions with the Town of North Providence to develop the land. The supermarket project was first presented to the Town Council in early October 2008. The matter came before the council on several occasions before a vote to approve the zoning change occurred on February 10, 2009. The vote to approve the project was 7-0.

The defendants held several meetings and discussions planning their actions and to affect payment of the bribe money. The bribe was delivered by the developer’s attorney to Zambarano. Disbursement of the bribe money was completed the day after the council’s February 10th vote.

The matter is being investigated by the FBI, with the assistance of Rhode Island State Police, Providence Police, DEA, and the Internal Revenue Service Criminal Investigation Division. The case is being prosecuted by Assistant U.S. Attorneys John P. McAdams and Terrence P. Donnelley.

Bill Ferland Joins RI US Attorney’s Office

William J. Ferland, a top criminal prosecutor for 20 years with the Rhode Island Attorney General’s Office, joined the staff of the Rhode Island U. S. Attorney’s Office today.  Assistant U.S. Attorney Ferland will primarily prosecute organized crime, drug and firearm cases.

“Bill is a smart, experienced, and extremely dedicated prosecutor,” noted U.S. Attorney Peter F. Neronha. “He is well-respected by judges, fellow prosecutors, law enforcement, and the defense bar alike.  He handled hundreds of significant felony cases, and the fact that he has prosecuted nearly two dozen homicide cases demonstrates the confidence that the various Attorneys General he has worked for have placed in him.”

A former patrolman, detective and police sergeant in East Greenwich from 1982-1990, Ferland served in numerous capacities as a R.I. Assistant Attorney General, including Chief of the Criminal Division; Chief of the Narcotics and Organized Crime Unit; and Chief of the Welfare Fraud Unit. He most recently served as Senior Trial Counsel, coordinating and overseeing the investigation and prosecution of high profile felony matters.  Ferland graduated magna cum laude from Rhode Island College in May 1982. He earned his Juris Doctor and graduated magna cum laude from New England School of Law in 1989.  Ferland has served as an adjunct faculty member at Roger Williams University Metropolitan College and the Community College of Rhode Island providing instruction in criminal law. He has also served as an instructor at the Rhode Island Police Training Academy.

Jury Finds Police Officer Marcus Huffman Guilty of Rape

This just in from the Projo 7 to 7 News Blog:

A jury has found a Providence police officer guilty of rape.

Providence patrolman Marcus Huffman was ordered held without bail after the jury reported finding him guilty of first-degree sexual assault stemming from the May 17, 2007, incident.

He raped a 19-year-old woman in a police substation in South Providence while the woman was intoxicated, according to trial testimony.

Huffman showed little emotion when the verdict was announced.

His attorney said he plans an appeal.

The jury began deliberating Wednesday, spending about four hours considering a verdict.

Rhode Island Commission Recommends Decriminalizing Small Amounts of Marijuana

As a followup to our previous post on Rhode Island’s attempts to legalize and tax marijuana, the Providence Journal is reporting on the legislative commission’s decision to recommended the decriminalization of an ounce or less of marijuana.

Made up of passionate advocates on both sides of the marijuana debate, the panel, chaired by state Sen. Joshua Miller, D-Cranston, voted Tuesday to approve the contents of a 24-page final report that concludes that “marijuana law reform” would save Rhode Island a substantial amount of money by avoiding “costly arrests [and] incarcerations due to simple possession of marijuana.”

The report suggests that Rhode Island take its lead from Massachusetts, where anyone 18 or older who is caught with an ounce or less of marijuana is required to pay a $100 civil fine “that goes directly to the municipality in which the penalty was issued.”

You can read the final report here.

Rhode Island Department of Health Investigates EMT Thomas McGovney

The Providence Journal is reporting that the state Department of Health is investigating an Emergency Medical Technician who allegedly worked for the Barrington fire department for more than a year without a state license.

Thomas McGovney resigned from the fire department last week after meeting with Barrington Fire Chief Gerald Bessette, according to Town Manager Peter DeAngelis.

Rhode Island Health Department spokeswoman Annemarie Beardsworth said her agency is investigating how McGovney performed his duties for nearly 18 months without the proper certification.

“We have no record of this person ever having held an EMT license in Rhode Island,” she said. “We do have a record that he completed his training but once you do that, you have to pass the test and get your license.”

Bessette could not be reached for comment this week because he was on vacation but DeAngelis confirmed that the chief discovered the inconsistency during a review of employee paperwork earlier this month.

You can easily verify the license of a professional on the Department of Health website here.

US Attorney Neronha Forms Stimulus Fraud Prevention Task Force

Rhode Island U.S. Attorney Peter F. Neronha today announced the formation of a Stimulus Fraud Prevention Task Force. The multi-jurisdictional task force consists of more than a dozen federal and state government and law enforcement agencies, which will monitor and investigate allegations of misuse of federal stimulus funds provided to Rhode Island.

“With well over a billion dollars in stimulus funding expected to flow into Rhode Island, there are some who may look at this as an easy opportunity to misuse or steal taxpayer dollars,” said U.S. Attorney Peter F. Neronha. He added, “The coordinated efforts of this task force to monitor complaints of misuse and abuse, combined with the potential for criminal or civil prosecution, will help ensure that stimulus monies reach the intended targets: Rhode Islanders who need jobs and the state’s economy.”

U.S. Attorney Neronha created the Stimulus Fraud Prevention Task Force as an outgrowth of the U.S. Department of Justice’s commitment to prevent fraud, waste and abuse, and to investigate and prosecute significant financial crimes. Assistant U.S. Attorney Dulce Donovan, the office’s Affirmative Civil Enforcement (ACE) coordinator, and Assistant U.S. Attorney Terrence P. Donnelly, a criminal prosecutor with an expertise in prosecuting financial crimes, will co-chair the Stimulus Fraud Prevention Task Force. The task force will hold its first meeting on Thursday.

Superior Court Judge Denies Motion of Hit Man Hiring Husband to Reduce his Sentence

In a 6 page decision, Superior Court Associate Justice Melanie Wilk Thunberg refused to reduce the 30-year prison term of Thomas J. Lewis, a West Warwick man who hired a hit man from Arizona, Thomas M. Kenna, to kill his wife, Kris Sao Bento, in 2004.  San Bento survived Kenna’s attack with a claw hammer.

In denying Lewis’ motion to reduce his sentence of sixty (60) years, thirty (30) years to serve with the balance of thirty (30) years suspended, on a charge of assault with a dangerous weapon in a dwelling house with the intent to commit murder, Judge Thunberg wrote the following:

After thoroughly reviewing the submitted records and information, this Court cannot identify any “new” information which would raise a concern of infirmity regarding what Dr. Bursztajn terms the Defendant’s “judgment and decision-making capacities.”  (Dr. Bursztajn’s “Analysis of Merit” § III.C ¶¶ 1-2.)

Moreover, this Court was aware of the Defendant’s voluntary non-compliance with his medication protocol.  Prior to imposing sentence, the Court stated as follows: “It was [the Court’s] interpretation and understanding from the records that were furnished to [the Court] that Mr. Lewis had an awareness that he had a problem with depression, was treated at Butler for depression, knew that he needed medications, and despite that awareness did not take his medication.”  (Tr. 24) (which also references the Defendant’s bipolar disorder).

Furthermore, this Court has on numerous occasions interacted with Mr. Lewis during his court appearances.  He has been consistently appropriate, alert, and communicative.  The Court has further observed nothing in his deportment, affect, or speech which in any way suggests that his entry into a plea was not a clear-headed and voluntary choice.  The Court repeats that the Defendant’s criminal activity was the “product of a nefarious and detailed plot” planned with and executed by his co-conspirator.

The evidence unequivocally establishes that the crimes were not committed by an individual whose mental state was impaired or whose capacity was diminished so as to affect culpability.

The Providence Journal has more here.