Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

The Massachusetts Anti-Bullying Law Movement – A Path To A Criminal Justice Solution?

After writing yesterday’s Boston Criminal Lawyer Blog, I went back to my daily business of practicing law. Then, I took a look at some of the latest news and commentaries regarding the indictments about which we “spoke” yesterday as well as the pending legislation regarding bullying.

I started with Boston.com, were I found the positive spin that, “So, finally, an adult in authority in South Hadley stepped up for Phoebe Prince.” This was, of course, applauding District Attorney Betsy Scheibel who has indicted nine youths who apparently bullied the late Phoebe Prince, 15. Ms. Prince tragically took her own life, presumably because of said bullying.

Part of the prosecutor’s stated rationale was that the bullying went far beyond typical bullying that we have seen amongst school peers since the invention of schools. Of course, yesterday, when we looked at the examples she listed…they did not seem to be very new at all.

Unspoken, of course, was any political ambitions the da might have, given that her office is a political one.

I remind you that this had already become a hot issue and one that is being kicked around by the legislature in the way of anti-bullying legislation.

Of course, the Boston Globe columnist, Kevin Cullen, assumes more pure motives of the chief law enforcement official. He states that, “She grew up there, went to college at Mount Holyoke, just off the town green, and has restored some faith in the idea that somebody in a position of power there gets it.”

Maybe.

Mr. Cullen also indicated that when the school bullying was pointed out, some of the good people of South Hadley began blaming the victim. I would agree with him that this is abhorrent and whatever character assassination was engaged in, it could hardly defend against treating another human being, a newcomer from another country no less, to abuse and verbal torture.

Legal or not, it is disgusting and it is wrong
The Globe columnist interestingly noted that the prosecutor’s statements were indictments of the “look the other way” attitude of South Hadley High. I would imagine that parents should be included in that as well. The da said that such “willful blindness” did not rise to criminal behavior, but it certainly did not help Phoebe either.

As we have covered in the past, the theory of “willful blindness” is based on people looking the other way when a crime is occurring in front of them even though they really had every inkling as to what was going on. It is often used to join someone otherwise unchargable to be part of a criminal act, particularly when they are helping to enable that act. It helps prosecutors join additional defendants to conspiracy cases. Especially in federal court.

And by the allegations thrown around in this case, one would have to assume that the school officials would be likely candidates for such a charge. Of course, we often see this theory used in cases of drug dealing….not in unimportant matters where we, at the same time, accuse people of being responsible for a death.

Of course, the school superintendent, Guy Sayer, has indicated that no one in the school system was even aware of the girl’s suffering.

Far be it from me to suggest that such a highly placed educational official is even capable of being anything other than completely truthful, but the Boston Globe reported a story in January that she had run out of class in tears. No response from the school.

Phoebe’s mother reportedly spoke to at least two school staff members about the harassment. Clearly, this, too, did little, if anything.

Putting aside those who’s profession it is to pay attention and keep our kids safe at school, who are, by the way, adults, the daring da chose to indict 9 kids instead.

As you may know, charges such as threats to commit a crime, harassment and disturbing an assembly (three of the indicted charges) are usually handled in district court. They are not usually handled as felonies. In fact, the other charges are also often handled in district court, especially when those charged are kids with no prior criminal records.

One exception to that is the statutory rape charge. Of course, this seems to have little to do with bullying…but it does make the indictments sound a bit more media-friendly.

In fact, often these charges are dealt with at a clerk magistrate’s hearing.

Bu then, you do not need me to give you reasons this matter was held with pomp, circumstance, indictments and press conferences.

Meanwhile, as legislators kick around anti-bullying legislation and law enforcement officials indict kids, continue investigations (naturally indictments being rushed through before the investigation is even finished) and hold press conferences, other students are coming forward with tales of bullying.

For example, one sophomore at South Hadley High said that she recently told school officials she had been bullied, and that they had found a way to solve the problem.

“I felt small, and I cried every night,” she said. “It didn’t get to the point where I thought about suicide, but it was pretty bad. It was handled very well. The school did counseling and mediation.” Now, she said, she and the bully “are on better terms.”

Across the Commonwealth, prosecutors are following the lead on bringing these matters into the criminal courts. Parents are said to be peppering authorities with bullying complaints.

“The message is that we as a society are not going to sit back and allow the incessant, nonstop bullying of children which can lead us to such tragic consequences as what happened to Phoebe Prince,” Plymouth District Attorney Timothy Cruz told the Boston Herald. “We have an obligation to make sure we try to prevent this.”

In Weymouth, two high school students are facing criminal harassment charges for allegedly filming a video mocking a physically impaired special needs student and posting it on YouTube last month, according to the Herald has learned.

Norfolk District Attorney William Keating said both unidentified students – a boy and a girl – have been disciplined by the school and their court cases are pending. The girl is an adult while the boy is under 17.

In Newburyport, three accused 14-year-old cyberbullies are facing identity fraud charges for allegedly creating a fake Facebook page in the name of their victim. In contrast to South Hadley, where prosecutors say school officials failed to stop the brutal attacks against the victim, Weymouth school officials notified police after the video made the rounds in school.

Keating wouldn’t divulge further details other than to say of the video: “It was bad. Very bad.”
He also noted that the male defendant was himself the victim of bullying in the past.

“This is the cycle of bullying. He became the bully in this case,” the da said.

Meanwhile, Essex District Attorney Jonathan Blodgett – who is prosecuting the Newburyport identity fraud case -said he has been deluged with calls about bullying since Northwestern District Attorney Elizabeth D. Scheibel indicted two high school boys, four girls and three female juveniles on a variety of charges, including statutory rape, criminal harassment, stalking and civil rights violations.

“People are so disturbed by what happened in South Hadley that our phone is ringing off the hook,” Blodgett said. “We’re getting a ton of phone calls from schools and parents. We take them on a case-by-case basis.”

Attorney Sam’s Take:

As the Boston Globe proclaimed, “It shouldn’t take a bully-induced suicide for the country to recognize the severity of relentless taunting in educational institutions.”

On the other hand, our society has a history, particularly in criminal justice, of taking grand publicity-friendly measures that fail to either make sense or come close to solving the problem.

Some officials begin neatly entitled initiatives and then fail to see that they are funded. Others find ways to make a grandstanding move which inevitably ruins more lives than it helps.

Let’s put aside the issue of whether you can really prevent kids treating other kids badly. Let’s forget about any culpability of those in charge of the campus situations. What is the effect of setting a standard wherein accusations of bullying are treated with swift and life-altering criminal actions, regardless of the outcome of the matter?

Remember…once you are arraigned, the matter goes on your criminal record. Period. Most such defendants will of course be kids because that is who generally attends school.

So, if one follows the lead of the daring da from Western Mass, multitudes of kids, eventually convicted or acquitted, will have records which will have to be disclosed to colleges, graduate schools and potential employers.

But maybe you are an ardent Nancy Grace fan. Perhaps you figure that if they are charged, then they have to be guilty anyway and so deserve to be put to death. Case closed.

It might also be worth pointing out that things like harassment, threats to commit a crime, etc., are already illegal. And so, one might wonder, why is the legislature falling over itself to produce a new law making these acts illegal under the title of “Bullying”?

This case clearly evokes many emotions and brings up many issues. Assuming my coverage of it should not become a book, which it easily could be, overnight, it is impossible to deal with it fully here. We will stay with this matter and deal with its various aspects for the rest of the week, however. We will end the week trying to examine the proposed legislation regarding bullying to answer questions like whether we are really fixing a problem or simply making new ones for everyone involved, while, perhaps, letting those who should be held responsible alone, save alittle bad press.

Meanwhile, if you are facing a nightmare from similar issues and would like to discuss it with me, please feel free to give me a call at (617) 206-1942.

For the full stories upon which today’s blog is based, please see http://www.boston.com/news/education/k_12/articles/2010/03/30/standing_up_for_phoebe/ , http://www.boston.com/news/education/k_12/articles/2010/03/30/da_charges_9_teens_faults_school_officials_in_s_hadley_bullying_case/ , http://wildcat.arizona.edu/opinions/too-late-to-take-action-against-bullies-1.1290032 and http://bostonherald.com/news/regional/view/20100331prosecutors_launch_criminal_crackdown_on_mean_massachusetts_teens_2_kids_face_harass_rap_on_heels_of_prince_case/srvc=home&position=0

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