Appeal To SJC Successful As Court Overturns Failure To Register Conviction For Boston Serial Sex Offender – Attorney Sam’s Take

It’s stories like this that helps me love what I do for a living; you just never know what is going to happen next! Just when we see debacles like the one surrounding the Parole Board because of a recent police killing, and we see the predictable scurrying about by prosecutorial politicians to make sure that they cannot be splattered with blame, the Supreme Judicial Court takes the opposite tact. They look to uphold people’s rights…despite the likely public outcry.

Specifically, the court dealt with the case of Malcolm S. Maker, a 52-year-old convicted sex offender (hereinafter, the “Appellant” ). The Appellant had been convicted for failing to register his address with the Boston police department within two days of his release from jail, as required by the state Sex Offender Registry Board (SORB).

That is, until now.

The SJC now says that said rule is beyond SORB’s authority.

Apparently, the Appellant is not the most sympathetic of individuals. He has been designated a Level 3 sex offender, which is the type said to be most likely to reoffend. His history of convictions include various allegations of open and gross lewdness and lascivious behavior.

Then, in 2009, he was charged with failing to notify the police after he was released from jail that he would be living in a Boston homeless shelter. He was convicted and sentenced to two years in jail.

Then came the appeal.

However, the SJC now says that the SORB, set up to classify and monitor sex offenders, had no legal authority to institute the two-day registration requirement, which applied to both Level 2 and Level 3 offenders.

The law, already established, requires that sex offenders mail their future home and work addresses to the board before they are released. The board then sends the information to local police. Offenders must verify their information periodically. Level2 and Level 3 offenders must do so annually. If they are living in a homeless shelter, they must do so in person with the police every 30 days.

Not ruling on the merits of requiring a two-day registration, the SJC merely ruled, “Nothing in the statute authorizes the board to create new registration requirements such as the regulation here at issue…”The wisdom or practical advantages of creating new registration obligations is of no relevance when the board lacks the power to do so.”

“Today’s ruling does not change local law enforcement’s authority to arrest any offender who violates registration requirements and the offender still remains subject to severe penalties if convicted of failing to register or to update registration information,” the board said.

While the court was considering the case, the Appellant was serving his term. He was released from jail on Friday, according to the Suffolk sheriff’s office. However, Tuesday evening, he was arrested again for allegedly performing a lewd act in the ladies’ at the Cheesecake Factory restaurant in Boston’s Prudential Center.

He has pleaded not guilty and is currently being held on $2,500 cash bail.

And so life goes on.

Not so long ago, there was a book written by a defense attorney called How Can You Defend Those People? Of course, the title is based on the question many people either ask or want to ask defense attorneys. Among other people, we represent those whom society considers the “bad guys”. Take the Appellant’s case, for example. According to the Commonwealth, he is a serial sex offender and, as soon as he gets out of jail…he-reoffends.

Not very sympathetic behavior, right?

Most people look at criminal defense attorneys as soulless creatures who are devoid of conscience, ultra-liberal and could care less about tragic effect we have on the world by helping the underside of society. The better a job we do for our clients, the worse it is for the country.

Even Shakespeare, writing before the United States existed submits hatred of us, recommending, “First thing…kill all the lawyers!”

A person could get a complex. That is, unless he/she is a “true believer”.

Which I am.

I am an experienced criminal defense attorney. I am good at what I do and I am proud of it.

You may disagree with me that even the “worst” of my clients is a multi-faceted human being. You may feel that his or her inner narrative is not worth considering because he or she is simply an animal unworthy of human designation.

Not a problem. Everyone has a right to their opinion. However, what I am also doing is protecting you. Who you are, I and my kind are protecting you. Not only that, but we are fulfilling a need recognized, if not created, by the founders of this country.

Those founders had experienced first-hand how tainted, political and corrupt government can unfairly trample rights. They ended up fighting against it with their blood and endured hardships so that a government which has disregarded the rights of its citizens would no longer darken their doorstep.

Simply put, they did not trust the government. Rather, they developed a government that would be overseen and, actually controlled, by the people. The fact that a political prosecutor labeled someone guilty was not enough. The “trust me” approach by testifying police officers, which is generally accepted by most judges and prosecutors, with a wink and a nod, would be unacceptable to the founding fathers we say we celebrate.

So, don’t tell me that what I do is against this country. I love this country and I, and my fellow criminal defense attorneys, keeping the pressure on the political prosecutors who would otherwise burn the protections in the Constitution in a very real, if figurative, sense uphold how the legal system is supposed to work..

We do not fight with guns and blood, but with sweat, intellectual agility and hard work. We do so in the face of a system which considers us a nuisance that cannot be ignored. To them, we are, at best, an unavoidable, but unfortunate, reality. Even the general community considers us, to be generous, a necessary evil.

But those of us who are true believers still do it. Day in and day out.

“Well, you get paid for it, don’t you?”

We do. Often. For example, we have court-appointed attorneys trying to support families making pennies on the dollar for their work…after being nickeled and dimed by state authorities and protested by prosecutors looking for a raise.

Even under the best of circumstances…believe me…there are easier ways for an attorney to make a living. But for those of us “true believers”, there is no other way.

Because we believe.

And that’s what you want beside you when and if the time comes.

When that happens, you will learn, first hand, how upholding these protections and holding the government to its burden protects you too.

If you would like to discuss a case with me, please feel free to call me at 617-492-3000.

Meanwhile, have a great, safe and law-abiding weekend!

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