Diatchenko, et al. District Attorney for the Suffolk District, et al.; Commonwealth v. Roberio (Lawyers Weekly No. 10-046-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11688 SJC-11689 GREGORY DIATCHENKO & another[1] vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[2] COMMONWEALTH vs. JEFFREY S. ROBERIO. Suffolk. November 6, 2014. – March 23, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Constitutional Law, Sentence, Parole, Assistance of counsel, Judicial review. Due Process of Law, Sentence, Parole, Assistance of counsel. Parole. Practice, Criminal, Sentence, Parole, Assistance of counsel. Witness, Expert. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 10, 2014. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for Gregory Diatchenko & another. Robert C. Thompson, Assistant District Attorney, for the Commonwealth. Amy L. Karangekis, Assistant Attorney General, for Massachusetts Parole Board. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. The following submitted briefs for amici curiae: Kenneth J. Parsigian for Citizens for Juvenile Justice & others. David J. Apfel, Kristen A. Kearney, Kunal Pasricha, & Katherine Connolly Sadeck for Campaign for the Fair Sentencing of Youth & others. Afton M. Templin for Massachusetts Association of Criminal Defense Lawyers. BOTSFORD, J. In Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655 (2013) (Diatchenko I), this court considered the constitutionality of a life sentence without parole when applied to a juvenile homicide offender,[3] and, following Miller v. Alabama, 132 S. Ct. 2455 (2012), determined that the mandatory imposition of such a sentence violates the prohibition against cruel and unusual punishments in the Eighth Amendment to the United States Constitution as well as art. 26 of the Massachusetts Declaration of Rights.[4] Diatchenko I, supra at 668. The court held that a juvenile homicide offender who is convicted of murder in the first degree and receives a mandatory sentence of life in prison must be afforded a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” and this opportunity must come through consideration for release on parole. Id. at 674, quoting Graham v. Florida, 560 U.S. 48, 75 (2010). The court’s opinion in Diatchenko I has given rise to questions concerning how the opportunity for release […]
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Abdow, et al. v. Attorney General, et al. (Lawyers Weekly No. 10-111-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11641 STEPHEN P. ABDOW & others[1] vs. ATTORNEY GENERAL & others.[2] Suffolk. May 5, 2014. ‑ June 24, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Initiative. Gaming. Pari Mutuel Wagering. Attorney General. Constitutional Law, Initiative petition, Taking of property, Police power. Due Process of Law, Taking of property. Elections, Ballot, Validity of petition. Contract, Implied. License. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 10, 2013. The case was reported by Spina, J. Thomas O. Bean (H. Reed Witherby with him) for the plaintiffs. Carl Valvo for George Ducharme & others. Peter Sacks, State Solicitor, for the defendants. Mary Katherine Geraghty, Timothy J. Fazio, & Jennifer L. Morse, for Daniel Rizzo & others, were present but did not argue. Edward M. Pikula, City Solicitor, & Frank E. Antonucci, for Dominic J. Sarno & others, were present but did not argue. The following submitted briefs for amici curiae: Daniel O’Connell for Massachusetts Competitive Partnership. Brian D. Tobin for Massachusetts Council of Churches & others. Ellen Weiss Freyman & William J. Smith for Affiliated Chambers of Commerce of Greater Springfield & another. Thomas R. Landry for New England Regional Council of Carpenters. Jonathan M. Silverstein & Janelle M. Austin for town of Plainville. Donald J. Siegel & Jasper Groner for Massachusetts Building Trades Council. Melinda M. Phelps & Jennifer K. Cannon for Greater Springfield Convention and Visitors Bureau, Inc. Edward L. Sweda, Jr., for Public Health Advocacy Institute. Nicole Micheroni for Coalition of Citizens and Community Leaders. Brian T. Corrigan for Stop Predatory Gambling. GANTS, J. The issue presented on appeal is whether an initiative petition meant to prohibit casino and slots gambling and abolish parimutuel wagering on simulcast greyhound races meets the requirements set forth in art. 48 of the Amendments to the Massachusetts Constitution and, therefore, may be considered by voters at the November Statewide election. The Attorney General concluded that it did not and, accordingly, declined to certify it for inclusion on the ballot. The plaintiffs, ten Massachusetts voters who submitted the proposed initiative for certification, filed a complaint challenging the Attorney General’s decision and sought an order requiring the Attorney General to certify the petition. We conclude that the Attorney General erred in declining to […]
Diatcehnko v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-202-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11453 GREGORY DIATCHENKO vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[1] Suffolk. September 4, 2013. ‑ December 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Retroactivity of judicial holding. Due Process of Law, Sentence, Parole. Parole. Retroactivity of Judicial Holding. Homicide. Practice, Criminal, Sentence, Parole, Retroactivity of judicial holding, Capital case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for the petitioner. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. Amy L. Karangekis, Assistant Attorney General, for chair of the Massachusetts Parole Board & another. The following submitted briefs for amici curiae: Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. Annie L. Owens, of the District of Columbia, & Emily R. Schulman for Massachusetts Association of Criminal Defense Lawyers & others. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot. SPINA, J. On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 P.M. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G. L. c. 265, § 2.[2] On direct appeal, this court affirmed Diatchenko’s conviction. See Commonwealth v. Diatchenko, 387 Mass. 718, 719 (1982). Among other claims, we rejected his contention that his sentence violated the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.[3] Id. at 721-727. Diatchenko’s conviction thus became final.[4] Thirty years later, the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) […]
Harmon Law Offices, P.C. v. Attorney General (Lawyers Weekly No. 11-085-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑407 Appeals Court HARMON LAW OFFICES, P.C. vs. ATTORNEY GENERAL. No. 12‑P‑407. Suffolk. October 11, 2012. ‑ June 28, 2013. Present: Graham, Vuono, & Hanlon, JJ. Attorney General. Consumer Protection Act, Demand letter. Mortgage, Foreclosure. Attorney at Law, Attorney‑client relationship. Privileged Communication. Practice, Civil, Interlocutory appeal. Civil action commenced in the Superior Court Department on October 15, 2010. The case was heard by Bonnie H. MacLeod‑Mancuso, J. Evan T. Lawson (Michele A. Hunton with him) for the plaintiff. Jonathan B. Engel, Assistant Attorney General, for the defendant. VUONO, J. Acting pursuant to her authority under the Massachusetts consumer protection act, G. L. c. 93A (c. 93A or the statute), the Attorney General issued two civil investigative demands (CIDs or demands) to Harmon Law Offices, P.C. (Harmon), seeking information regarding its foreclosure and eviction practices.[1] Harmon challenged the demands and filed a complaint seeking relief under § 6(7) of the statute.[2] After a hearing, a judge of the Superior Court concluded that Harmon had not met its burden of showing good cause to set aside the CIDs and dismissed the complaint. Harmon appeals, claiming that the judge abused her discretion because the demands interfere with Harmon’s attorney-client relationships, and the requested documents are protected by the litigation privilege. Harmon also contends that, by representing its clients in foreclosure and eviction proceedings, it is not engaged in trade or commerce and therefore cannot be subject to liability under c. 93A. Thus, Harmon maintains, the Attorney General exceeded her authority by requesting information directly from Harmon regarding possible violations of c. 93A. For substantially the reasons articulated by the Superior Court judge in her thorough memorandum of decision and order dismissing Harmon’s complaint, we conclude that Harmon has not met its burden of showing good cause why it should not be required to produce the requested documents. Accordingly, we affirm. 1. Appellate review of the judge’s order. We begin by addressing a procedural issue which neither party has brought to our attention. An order denying a motion brought pursuant to c. 93A, § 6(7), to set aside or modify a CID is to be distinguished from an order of compliance issued by a court under § 7 of the statute. The former is interlocutory and not appealable as a final order, see […]
District Attorney Conley Announces Bid for Mayor
In a statement sent to the press, Suffolk County District Attorney Daniel F. Conley declared his candidacy for mayor on Wednesday afternoon. “Boston is a great city, and with the right leadership and vision, its best days are still ahead,” his statement said. “So today I am officially declaring that I am a candidate for Mayor of Boston.” In his announcement, Conley said Boston needs to find a balance between the poor and vulnerable, middle class families, and economic hope and mobility, all while staying transparent and accountable. “Boston can only reach its full promise and potential when every one of its residents has a fair chance to reach theirs,” he said. “I intend to put my heart and soul (and several pairs of shoes) into this campaign.” Read Conley’s full announcement here: Boston is a great city, and with the right leadership and vision, its best days are still ahead. So today I am officially declaring that I am a candidate for Mayor of Boston. My entire career has been dedicated to giving voice to the voiceless and hope to the most poor and vulnerable among us. Boston needs to be a city where long-time residents and those fixed on incomes can feel secure, and where middle class families aren’t priced out. It means making Boston a place where younger residents can start careers and families, and where our poorest neighbors can find real economic hope and mobility. To make Boston the city we want it to be requires a mayor who can make tough decisions, even when they offend powerful interests and upset the status quo. It’s going to require a mayor who leads with integrity, for whom transparency is a way of doing business and not just a buzzword, and who will ensure that city government is responsive and accountable to the people it serves. We’ll need a mayor who can manage and innovate in good times and tough times. We’ll need a mayor who has worked with residents and businesses in every neighborhood and has built partnerships with every conceivable constituency. Finally, we need a mayor who recognizes Boston as a city defined not by old divisions and superficial differences but by our shared hopes and aspirations. I’ve done these things. These qualities are the hallmarks of my career and the leadership I will bring to the Mayor’s office. So if you are like me and love this city and want to see it live up to its full promise and potential, then my campaign is your campaign. Boston can only reach its full promise and potential when every one of its residents has a fair chance to […]
Boston Sexual Abuse Attorney: ‘The New Pope Will Just Toe the Company Line’
A Boston attorney who has helped hundreds of Catholic sexual abuse victims obtain settlements believes the new pope will continue to ignore sexual abuse issues. “Pope Benedict and the current pope will just toe the company line. And he’s going to continue to sweep sexual abuse issues under the rug and maintain the secrecy, which has allowed sexual predators to thrive,” said Mitchell Garabedian, who heads a Boston law firm specializing in helping victims of sexual abuse. “I think sources from outside will continue to force the church to reveal the ugliness of child abuse within the church.” Garabedian also offered his recommendations for the new pope – Cardinal Jorge Bergoglio of Argentina. “For an institution such as the Catholic church to hold themselves as the most moral organization in the world – they have to act morally. The pope is the leader of that institution. He has to clear house. He has to get rid of bishops who have allowed children to be molested. He has to report them to the police and support victims who have been sexually molested. The pope has to institute a policy of transparency so that victims are allowed to heal, and other victims are empowered – and the world is made a safer place for children.” In 2002, Garabedian obtained a $ 10 million settlement for 86 victims or survivors of former priest John Geoghan. The following year Garabedian represented 120 victims and survivors of more than 40 different priests, along with lawyers representing other victims and survivors of abuse, an obtained an $ 85 million settlement with the Archdiocese of Boston. “The decades of sexual abuse by thousands of priests of thousands of children, and tens of thousands of priests and children has to stop. The pope has to set an example by instituting a moral policy, which will guide individuals within this group. Child abuse has to end period,” said Garabedian. “The Catholic church is an institution that for decades upon decades has been practicing and allowing priests to sexually molest children and to enable priests to molest children. It’s an institution that got caught and now is allowed to police themselves. I highly doubt the Catholic church will correct its way. It should have supervision from the ouside. Such as law enforcement authorities and legislation, which will enable victims to proceed with lawsuits.” Asked why he thinks the church continutes to allow sexual abuse to continue, Garabedian made the main reason clear: “They’re a trillion dollar business that is very powerful and in turn does not listen to forces from the outside and does what it wants to do.” SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch