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.

Attorney Sam’s Take: Massachusetts Criminal Court Is The Scene Of Unusual Sexual Assault For Which Clerk is Sentenced (Pt 2)

Today, as we “hunker down” and “enjoy” the last blizzard of the year, we continue the discussion about recent Massachusetts sentences that were recently handed down to fairly unusual criminal defendants during this holiday season. Today’s matter involves a meeting of sexual assault and prostitution.

James M. Burke, 43, of Chelsea (hereinafter, the “Defendant”) was a criminal court clerk magistrate in Chelsea District Court. Apparently, he had an interesting thing going with a couple of criminal defendants in court. These particular defendants had been arrested for prostitution.

According to one of the complainants, the Defendant removed her from her cell in the courthouse in 2005. He then led her to a room, locked the door, and promised to get her case dismissed in exchange for oral sex. After she fulfilled her part of the deal, the case was not dismissed.

The second victim testified that the Defendant stalked her after her arrest on a prostitution charge, then sexually assaulted her when she was at the courthouse last year. She claimed during the trial in federal court that she was forced into a downstairs room, where he sat on her during the assault and threatened to keep her in jail if she did not comply with him.

“I absolutely did not consent to this action,” she told the judge . “The brutality of it was shocking to me. Even though I had worked on the streets on occasion, nothing compared to the humiliation and powerlessness that I felt.”

The complainants later cooperated with the FBI’s criminal investigation, leading to the conviction of both the Defendant and a former Boston police officer. The Defendant was fired after his arrest last year and, in October, found guilty by a federal jury of two counts of depriving the women of their civil rights. The jury acquitted him of causing bodily injury to one of the victims.

“He took my dignity,” one of the complainants told the judge just before the Defendant was sentenced in US District Court in Boston. “He took advantage of me when I was in a vulnerable state in my life.”

US District Judge George A. O’Toole Jr. said Burke used his position to prey on vulnerable women, adding, “It is worse when the abuse of power occurs in the judicial branch.”

The sentencing hearing had some interesting moments.

When the court invited the Defendant to address the court, he declined, but his attorney spoke for him. He portrayed his client as a rather pathetic individual who “would roam the streets” looking for prostitutes for sexual satisfaction, then began arranging encounters at the courthouse.

“In some ways, the courthouse became a safe haven to do what he did,” said the lawyer, pointing out that his client was not responsible for the age-old profession of prostitution in which he participated. “They bear some responsibility, too,” he said, referring to the complainants who sat quietly in the courtroom. “They bear some responsibility for their lives.”

The prosecution, however, argued that it was ludicrous to blame the victims.

“They are in court trying to clear up a case, and he ends up sexually assaulting them,” explained the prosecutor. “All of the blame should be placed on the defendant.”

Aside from incarceration for two years, the court ordered the Defendant to pay a $2,500 fine. However, he did reject one request by the complainants.

They wanted the Defendant ordered to pay restitution to cover her expenses for therapy and lost wages. One said she was unable to work after the assault because she suffered anxiety and depression.

No word on whether said “work” was legal or not.

A View From The Trenches:

The Defendant remains free as I write this. The court has allowed him to delay reporting to incarceration until January.

Normally, one is better off being prosecuted in state court with the regular criminal allegations than the more far-reaching prosecutions in federal court. In this case, however, the Defendant is fortunate the matter was prosecuted as it was.

After all, the second set of allegations really describe an indecent assault and battery, if not actual rape, and kidnapping. The penalties for such crimes, even without being committed by someone in the Defendant’s position, would be higher.

“Well, Sam, why wasn’t it prosecuted in state court?”

Interesting question. Often, if there is a concern about a conflict of interest, such as in the case if the defendant were a prosecutor, a special prosecutor would be brought in and the case might be moved. Here, while it might not make sense for the case to be prosecuted at Chelsea District Court, it could have been moved or indicted so that it would not remain in Chelsea.

In fact, this could still happen. It would appear that the crimes for which the Defendant was prosecuted are different than what the state would prosecute him for. True, there would be an issue about double jeopardy, but the other prosecution would probably be allowable.

So, why is this only being prosecuted as it was in federal court? My opinion on this will soon be obvious.

The argument of the defense attorney was rather interesting in this case. Basically, it seemed to come down to blaming the victim and admitting to the other (non-prosecuted) crimes of engaging the sex trade. After all, before the court became a “safe haven” for the Defendant, he apparently was approaching prostitutes on the streets. The defendant’s attorney is an experienced criminal defense attorney…why would he make such an argument?

It is similar reasoning to the above question as well as why the complainants felt free to ask for restitution for their loss of illegal income.

In cases in which the complainants are prostitutes, one often encounters said reasoning. I have handled many of such cases. I have encountered judges who, in lobby conferences, honestly wondered aloud, “Can one actually ‘rape’ a prostitute?” I have had other courtroom personnel refer to a prostitution rape case as merely something that should be treated as a “breach of contract” dispute.

The very idea that a prostitute loses his or her right to say “no” to sexual contact should be repugnant to any sentient human being.

The entire atmosphere of this case, and cases like it, is that of hypocrisy. This is because we do not want to honestly address the truth of the matter. We ignore the fact that sexual desire is normal and will not go away. This is why prostitution is referred to as “the world’s oldest profession”.

Pretty much every single logical argument we have against legalizing prostitution would be satisfied if we legalized it and taxed it like we do with alcohol and cigarettes.

Unless the Defendant is simply a rapist at heart, a hypothesis for which there is no evidence, no crimes in the case would have been committed if it were safe and legal to seek a prostitute. The complainants would not have been victimized and the Defendant would not have needed his “safe haven”.

And you know what? Such “crimes” will continue to happen until we grow up and match criminal justice to human reality.

But then, we cannot admit that in court. Therefore, the farce will continue.

In the meantime, if you are involved in a similar, or even dissimilar, case, you should retain the services of an experienced criminal defense attorney. If you would like to discuss a criminal case with me, please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story in which parts of this blog were based, please go to : http://www.boston.com/news/local/massachusetts/articles/2010/12/17/chelsea_magistrate_gets_2_year_prison_sentence/?camp=obinsite

NOTE TO READER: This Is A Reminder That Beginning Next Week. Attorney Sam’s Take Blogs Will Return To Daily Posts…Patch Or No Patch. Thank You For Your Patience.

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