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September 2012 Archives

Attorney John Burke of Zerillo Law Gets A Theft Filing

Attorney John Burke was able to negotiate a filing today in the Portland Cumberland County Maine Courts. A filing is a delayed dismissal. In this case, there will be a 3 month filing, a $300 fine, and a complete dismissal of all charges thereafter. For more on Attorney Burke and Zerillo Law, LLC, click here.

More Kind Words From Clients - This Time For John Burke

Here is a note from a Client recently sent to John Burke that I wanted to share - well done John:

Thank You again for representing me during what was a difficult time. I am glad to put it behind me. You certainly mitigated the situation for me and you did an excellent job, the result was more than I could of hoped for.

Amazing OpEd By Massachusetts U.S. District Court Judge Nancy Gertner: "The Media's Reporting On Justice Is Criminal"

September 4, 2012 The Media's Reporting On Justice Is Criminal By Nancy Gertner Victims’ family member, Steve Davis speaks to media outside federal court in Boston Tuesday, June 12, 2012, after Catherine Greig, who spent 16 years on the run with former Boston mobster James “Whitey” Bulger, was sentenced to eight years in prison for helping to hide one of the FBI’s Ten Most Wanted Fugitives. (AP Photo) There is a canned, formulaic newspaper story about any criminal case. It can be repeated in every prosecution, no matter what the crime, no matter who the defendant. Here’s how it goes: Judge X sentenced defendant Y to five years (or whatever the number). The prosecutor argued for 10 (or higher than the number the judge gave). The victim’s family is appalled. When interviewed, they stridently proclaim their outrage at the judge. The press then echoes that sentiment. All concerned assume that the right sentence is the one the prosecutor wanted or the victim demanded. So when the judge sentences the defendant to less, they cry foul. Another lenient judge! Another liberal! Another blow against the “tough on crime” mentality! Never do you see the opposite: a columnist decrying a sentence that was too high or a reporter noting that these sentencing lengths are just arbitrary numbers – five, 10, 15, 20 – without any relationship to what works to deter crime, what is cost effective, etc. And they are “just” numbers that will inevitably increase over time, precisely because they are contentless. They do not reflect expert opinion about proportionality — for example, measuring relative sentences across crime categories or comparing nonviolent drug sentences to sentences for violent crime. They don’t consider alternative approaches. They don’t evaluate recidivism, whether drug treatment programs in certain instances will work better than incarceration. These numbers only reflect the public’s and the district attorney’s spleen – and so whatever the number was before the sentencing of this defendant, they “must” be higher in the next case, with the next defendant. There is, in short, no end. Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy. We lead the world in imprisonment not just by a little — but by several orders of magnitude. Our nearest competitors are Rwanda and China, hardly good company. And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents. This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000). Three decades ago, we considered rehabilitation and specific deterrence to be more important than retribution. And while there were unquestionably problems with that approach, at the very least it enabled a discussion about what punishments made sense to ensure public safety, to minimize recidivism and to balance all of the purposes of sentencing. In addition, it permitted criminal justice experts in various fields – including judges – to participate in a meaningful discussion about crime. But in the 1980s rehabilitation was discredited. On the eve of sentencing reform in the federal courts, one scholar wrote: “What works? Nothing!” – although he subsequently amended his views. The sentencing focus shifted for the most part to a single purpose: retribution. And for that purpose there were new “experts”: the public. If the most important question had become, “What punishment fits this crime?” Everyone could weigh in. And not just the public. By the late 1980s, crime issues were part and parcel of the political debate — think of the role of the Willie Horton ads in the 1988 presidential election. A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press. Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy. Some of the blame surely goes to the media. Take the case of Kenneth Belew of Somerville, Mass. On the evening of April 21, 2011, after drinking too much, Belew got behind the wheel and lost control of the car. Of the five passengers – two tragically died. The judge sentenced Belew to five years; the prosecutor had wanted eight to 10. A Boston Globe columnist excoriated the judge in all too familiar terms: He was insensitive and unduly lenient for not imposing the sentence the prosecutor wanted. But what the prosecutor wanted was hardly the measure of fairness. The presumptive range of sentences under the Massachusetts Sentencing Guidelines was about three and a half to five and a half years. Those guidelines were established by a Sentencing Commission consisting of prosecutors, defense counsel, public safety and correctional officials, and victim-witness advocates. And the judge accompanied the sentence with an elaborate recitation of the reasons for the sentence — on the record and in public. The prosecutor cannot be so monitored. He picks a number and does not have to explain it, beyond justifying it in the particular case. There are no public, transparent guidelines for prosecutors, no Sentencing Commission, no standards. He cannot be easily reviewed to see if he is biased, choosing mandatory minimums for defendants of color more than for those who are white, or simply going with his gut. Recently, a Suffolk County prosecutor criticized the Supreme Judicial Court for not requiring a judge whom the prosecutor believed to be too lenient to disclose his personal notes, records and diaries to justify his sentences. When was the last time a prosecutor was required to disclose why he chose to prosecute a defendant, or picked a given charge, or recommended a given sentence? The answer is never. And, to a shocking degree, the prosecutor is picking numbers out of the air. Twenty years ago, we considered five years a very long sentence. In most European countries that is still the case. But now, in the United States, we increase sentences by fives. It’s like a betting game. Five does not send a message if it is what the defense lawyer wants. OK, I’ll raise you five more. Why five? Why not 10? When sentences had to bear some relationship to outcomes – what worked to prevent recidivism, for example – there were limits. With retribution, there are few. To be sure, pundits are beginning to write about the unfairness of mandatory minimum sentences. They are beginning to notice the disproportionate sentences for African Americans and Hispanics. And in this depressed economy, the media is beginning to acknowledge that lengthy sentences, particularly for nonviolent drug offenders, are not remotely cost effective. But those general observations are rarely reflected in media coverage of individual cases. And individual cases, particularly the celebrated ones, are what drive the legislative debate (think Megan’s or Melissa’s laws) – not a general analysis of the needs of the criminal justice system or the lack of a relationship between the declining crime rate and our ever increasing imprisonment rate. That is the only explanation of why, just when punitive states like Texas and Mississippi are repealing “three strikes” laws, Massachusetts just passed one, after two highly publicized and tragic crimes: the murders of Melissa Gosule and Officer Jack Maguire. Three strikes is nothing more than a baseball metaphor – not social policy. Too often the themes the press echoed and the legislators repeated were simply without basis: Myth 1: Massachusetts judges are coddling criminals. In fact, since the Willie Horton incident, imprisonment rates have increased, with consequent prison overcrowding. Even independent judges feel the public’s pressure to imprison more and more. Myth 2: Parole boards coddle criminals. But parole was declining steadily after the Horton incident and, after Officer Maguire’s killing at the hands of a paroled offender, was effectively shut down further. Myth 3: Prosecutors can be trusted to decide who should be charged and who should not be. It is a fallacy to believe that all prosecutor’s decisions are without flaws, any more than all judge’s decisions are wrong. Indeed, prosecutors’ decisions are less likely to be publicly reviewed, or to be independent of political influence, than those of judges. Myth 4: We need higher sentences to stop violent crime. Not so. Violent crime has been declining, especially in Massachusetts. Myth 5: We need higher sentences to deal with recidivism. Indeed, the recidivism rate is high – by some accounts as high as 40 percent – but given the imprisonment rate, it suggests the failure of prisons more than anything else. Myth 6: It is costless to imprison more and more. Hardly. Since rehabilitation was generally discredited in the 1980s, reformers have focused on evidence-based practices proven to be efficacious in preventing crime. In this recession, every dollar spent on prison walls is a dollar less for treatment that works. So it matters how the media covers the individual case, whether it follows the usual formula, “whatever the prosecutor wanted was right” or is more nuanced. The press can’t decry mass incarceration while regularly beating the drum to criticize judges who are trying to make reasonable distinctions between offenders.
For more on Zerillo Law, LLC, click here.

Kudos for Attorney Amy Robidas

I want to share this letter received from a Client today regarding Amy Robidas handling of his difficult case.

Hello Tim, Passing along a note of appreciation for the professional service that I received from your law firm and Amy Robidas. Twice she has represented me in court and achieved favorable results in each case. Her personality and demeanor made it easy to talk with her and if their were any questions she always took the time even on weekends to write back if I had an urgent question . Amy displays a talent of leadership . She presents herself in a confident manner .She is calm yet both aggressive and assertive . Previously we worked with two other attorneys in the past and to be honest it was a very humiliating experience. It is quite evident Amy is highly educated , respected, and professional and truly enjoys her work. Did I mention that she is also a fine and tasteful dresser ? :) Not only did she treat me with dignity and respect your staff as well treated me like a person . Everyone was polite and courteous to my wife and I . Should the occasion arise where it may be necessary to be represented it is good to know that we can count on your staff for our professional needs.
For more about Attorney Amy Robidas and Zerillo Law, LLC, click here.

Bangor Daily News Article on Garrett Cheney Manslaughter Appeal

Mr. Cheney is represented on appeal by Tim Zerillo and John Burke of Zerillo Law, LLC. We did not represent him in the trial, but took the case on appeal of the manslaughter charges.

Maine supreme court to hear appeals of 3 men in deaths of 3 adults and infant By Judy Harrison, BDN Staff Posted Sept. 03, 2012, at 4:11 p.m. PORTLAND, Maine — The Maine Supreme Judicial Court this month will consider the appeals of three men in unrelated cases for their roles in the deaths of three adults and an infant. Justices are scheduled to hear back-to-back oral arguments the morning of Wednesday, Sept. 12, from attorneys representing Garrett Cheney, 24, of South Berwick, Nathaneal Nightingale, 34, of Burlington and Nicklas Jones, 20, of Limestone. Cheney was convicted by a jury July 28, 2011, of manslaughter, aggravated criminal operating under the influence of intoxicants, leaving the scene of an accident and criminal operating under the influence of intoxicants in connection with the Jan. 30, 2010, hit-and-run death of University of Maine student Jordyn Bakley, 20, of Camden. He was sentenced to 15 years in prison with all but seven suspended and four years of probation. Nightingale was charged with murder in the shooting deaths of a Webster Plantation couple who ran a pawnshop and loan operation out of their trailer, according to court documents. On May 31, 2011, a Penobscot County jury found Nightingale guilty of manslaughter, not murder, in the death of Michael Miller Sr. but found him guilty of intentional or knowing murder for the death of Valerie Miller, both 47, of Webster Plantation. He was sentenced to 40 years in prison on the murder charge and 15 years for manslaughter, with the sentences to be served concurrently. Jones last year entered a conditional guilty plea to manslaughter in the April 2009 death of his 3-month-old daughter, Jocelyn Jones. He was sentenced in December to 15 years in prison with all but six suspended and four years probation for throwing the child into her crib. The infant died of blunt force trauma to the head, according to court documents. The girl’s father, who was 17 when the girl died but was dealt with by the court system as an adult, is free on bail pending the outcome of his appeal. Cheney’s appeal challenged several decisions made by Justice William Anderson during the trial, including his decision to allow testimony to continue after jurors were approached by a man who urged them to convict Cheney and said, “don’t pull a Casey Anthony on us.” Casey Anthony on July 5, 2011, was found not guilty of murdering her toddler by a jury in Florida. The outrage over that verdict still was being reported by the media when Cheney’s trial began less than two weeks later on July 18, 2011, Timothy Zerillo, the Portland attorney handling Cheney’s appeal, argued in his brief. Nightingale and Jones’ appeals, filed by their respective attorneys, Hunter Tzovarras of Bangor and Matthew Hunter of Presque Isle, concerned the denial of pretrial motions to suppress statements they made to the police. Attorneys for both men argued in their briefs that the neither defendant had been Mirandized — advised of his right against self-incrimination — before confessing to investigators. In addition to appealing the motion to suppress, Jones appealed a judge’s decision to treat him as an adult rather than as a juvenile. If their convictions were to be overturned, Cheney and Nightingale’s cases would be sent back to Justice William Anderson, who presided over both men’s trial and sentenced them, for further proceedings at the Penobscot Judicial Center in Bangor. If Jones were to win his appeal, it would be sent back to Aroostook County Superior Court in Caribou.
for a link to the Bangor Daily News story, click here. For more on Zerillo Law, LLC, click here.

Attorney Amy Robidas Gets 2nd Offense Operating Under the Influence Charge Dropped to Driving to Endanger

I wanted to post about a great win for Attorney Zmy Robidas, Senior Associate at Zerillo Law, LLC. The seeds of her big win were planted when she won the license suspension case for her Client's Second Offense OUI at the Bureau of Motor Vehicles. From there, she went to Court and negotiated the Second Offense OUI to a Driving to Endanger charge. The Client then loses her license for 30 days instead of mandatory 3 years. Congratulations to our Client and to Amy! For more about Zerillo Law, LLC, click here.

Alexis Wright Case Still Threat To Expose Hundreds of "Johns"

From the Seacoast Online: Lawyer: Johns list more than 170 names long A woman who appears to be Alexis Wright of Wells is also identified as Lydia in February on www.sensualbodybylydia.com. By Jennifer Feals jfeals@seacoastonline.com August 30, 2012 2:00 AM KENNEBUNK — Mark Strong, charged by police in July with promoting prostitution, had a professional relationship with Kennebunk Zumba instructor Alexis Wright stemming from her desire to become a private investigator, according to Strong's attorney Daniel Lilley. The Portland attorney said Friday that his client met Wright out of their shared career interest, invested in her Zumba studio, and lent her money. But he says evidence will not reveal that Strong paid Wright for sexual relations. "That's what prostitution is," Lilley said. "The Johns out there, good luck to them, but he's not among that group of people from what I have right now." Strong, 56, of 53 Knox St. in Thomaston, was charged last month with promotion of prostitution, stemming from an investigation into illegal activity at Wright's Pura Vida/Zumba studio, located at 8 York St., and an alleged massage business she was operating at 1 High St. It's a charge Lilley is hoping to have dismissed, according to a motion filed Friday in York County Superior Court. Wright of 158 Loop Road, in Wells, has not been charged. Her attorney Sarah Churchill did not return calls and e-mails for comment as of press time. Court documents allege Wright kept meticulous records of sexual acts she performed with men listed as her clients, including some whom she allegedly videotaped without their knowledge. Also in those records are ledgers of sexual acts, video tapes, and video of Strong and Wright engaging in sexual activity together, according to an affidavit. So far, Strong is the only person to be charged in the case. Lilley questioned how his client could be arrested on a charge of prostitution without a prostitute. "I've got a guy charged with promotion of prostitution and there is no prostitute, at least no one charged. My guy's charged with something that no one else is, and it's quite unusual. Usually if everybody's committed a crime, everybody gets charged at once," he said. "They claim they are still investigating. Sounds to me like they are a day late and a dollar short." Police have said further charges are forthcoming, but Kennebunk Police Chief Bob MacKenzie said neither police or the York County District Attorney's Office has released any further information. "It's an ongoing investigation and we need to investigate this completely before we bring forward any charges and we're still in that investigative stage," he said. On Friday, Lilley said he filed a motion to dismiss the case as he says prosecutors have failed to comply with the rules of discovery, namely providing evidence to him in a timely fashion. He said that evidence will show Strong was hired to investigate Wright's complaints that she was being harassed by the Kennebunk Police Department — and will further reveal an alleged client list 170 to 200 people long. "I've heard there's quite a group," Lilley said. "I think it's hard to predict, but the probabilities are these folks are going to be exposed. No pun intended." When they searched Strong's home and place of business, Lilley said police obtained evidence, including a computer with details of the investigation Strong conducted on Wright's behalf. On that computer is "supposed to be a report that shows some police improprieties," Lilley said. MacKenzie said he has no knowledge of the "improprieties" Lilley is referring to. "I will say there's no improprieties certainly that I'm aware of and we'd want to see the evidence of that," he said. "I think this is once again deflection and a tactic. We'll stick to our investigation as we've done and moved forward." Lilley moved the case against Strong to the York County Superior Court in Alfred, where he can have a trial, and a court appearance is scheduled for Oct. 4. Lilley says his client will not plead guilty and he plans to call in any and all of Wright's alleged clients to testify, if necessary, stating "if there's a trial, they're all going to be there." Lilley alleges that the client list is rumored to include clergymen, doctors, lawyers and police officers, and says he's been contacted by defense attorneys trying to find out more information about the case. "If I'm going to trial, and my client's not pleading guilty to anything, I'm going to call in 178 (clients) and ask them if they ever saw my client doing anything illegal," Lilley said. "If they are patronizing this place, and it is in fact, though I have no evidence it is, essentially a whore house, I guess, then they take their chances. I don't want to destroy anybody's home life or their reputation, but that's one of the risks after all of doing that." MacKenzie said any comments made regarding clients is speculation, as law enforcement officials have released no information. "We are continuing to investigate that aspect, and we will continue to. It's going to take time. There is a lot of information to go through," he said. "As Mr. Lilley states he hasn't seen the list. I don't know where he's getting his information from as far as the prominence of that list and who's on it. Obviously there are rumors and speculation." MacKenzie said he understands the community is curious about this case and is looking for more information, but he asked that they be patient. "I understand that people want to know," he said, "and in time when this case does progress and when charges are filed against Johns is probably the time that those names would become public."