Judge Wolf’s Sex Reassignment Order for M. Kosilek Probably Won’t Stand Up

Judge Mark Wolf in a hundred twenty-nine page ruling ordered the Commonwealth of Massachusetts to provide a sex change operation, now apparently called a sex-reassignment surgery, to Robert Kosilek who killed his wife in 1990 and who in 1993 changed his name to Michelle Kosilek.  Kosilek is doing a life sentence without a chance of parole.  

According to reports Judge Wolf found that the Commonwealth’s failure to provide this sex-reassignment surgery violated the Eighth Amendment to the Constitution.  The  Eighth Amendment states:  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Judge Wolf, a Reagan appointment, said he had no choice but to order the Commonwealth to have  Kosilek sexually reassigned because:  “there is no less intrusive means to correct the prolonged violation of Kosilek’s Eighth Amendment right to adequate medical care.”   Wolf had already ordered the state to provide hormone and other treatment for Kosilek to bring his body into alignment with his desires.

I assume the Commonwealth will appeal his order.   If it stands the Commonwealth will be required to pay for anyone who wants to be sexually reassigned.  You see that amendment applies to all of us, not just the criminals, so it is a Constitutional right that we have that can not be denied to us by the state.

If his decision is upheld, Judge Wolf will next have to decide whether it is cruel and unusual punishment for the Commonwealth to keep Michelle locked up as the only woman in an all male prison.

I’m talking about Judge Wolf because he was the judge who held the hearings in the case of Whitey, Stevie Flemmi, Martorano and Salemme.  That was the case where it was discovered that Flemmi and Whitey were FBI informants.

You may wonder why the issue came up.  It seems Stevie Flemmi and his case-mates were scheming to have the charges against them dropped.  At that time Weeks was on the street and he was acting as the go between for Connolly who was retired and Flemmi who was locked up in Plymouth.  The scheme was that Flemmi would admit he was an informant.  He’d say he had been given immunity by the FBI to commit his crimes.  The thinking among his case-mates, who were also his cell-mates, was that if Flemmi had immunity then as his partners they were also immune from prosecution.  Judge Wolf toyed with the idea.  The whole scheme eventually exploded in their faces.  The First Circuit Court of Appeals cut to the chase saying the FBI couldn’t give anyone immunity.

I bring all this up because there’s a good chance the Court of Appeal won’t uphold Judge Wolf’s new extension of the Eight Amendment.   But beyond that I want to suggest that sometimes Judge Wolf can be very wrong.

Judge Wolf listened to Stevie Flemmi testify for days on end — between the times when he didn’t take the Fifth Amendment — about his involvement with Connolly.   He heard another fifty or so witnesses and a year after the hearings closed he issued his findings of fact in a 661 page tome.

One issue that came up involved the Lancaster Street Garage investigation that took place in 1980.  I cover this in my book, Don’t Embarrass the Family.  The long and short of it is the state police had a bug in that garage and Whitey and Stevie Flemmi found out about it.  Obviously once they knew they stopped discussing their criminal business and began to talk about what a great job the state police were doing patrolling the Mass Turnpike.

Stevie was asked who tipped him off about the bug.  He responded that it was Jeremiah O’Sullivan, the former head of the Federal Strike Force.  That made sense because he was the only one on the federal side who the state police told about their bug.  Stevie Flemmi also was asked at another time who was his source in the state police who was leaking information to him.  He lied by saying it was John Naimovich.  No one had ever made a connection between Naimovich and Stevie Flemmi.  It would turn out that Stevie’s source was not Naimovich but another state cop.  Weeks said the state cop was Richard Schneiderhan who was also known as Eric.   Martorano also said the same thing.  Schneiderhan and Flemmi were lifelong friends.

Wolf did not believe Stevie Flemmi when he testified O’Sullivan tipped him off  but did believe him when he named Naimovich as his state police source.  One reason he could pick and choose like that was he had to fit the facts into a conclusion he wanted.  Wolf and O’Sullivan had worked in the U.S. Attorney’s office in Boston at the same time.  So it was likely he knew O’Sullivan and could not believe that O’Sullivan would have done it.  So he had to find someone else.

Wolf found that it was Naimovich who tipped off the bug.  He had no evidence to show Naimovich even knew about the bug.  That didn’t seem to bother him.  He was so anxious to pin the blame on Naimovich he couldn’t be bothered to spell his name correctly, he called him Naimovitch.

Then he followed up on this with the old bugaboo — you’ve probably heard it.  Once a cop is indicted he’s considered corrupt.  If he’s found not guilty everyone thinks “he beat the rap” rather than think he was wrongfully accused.

Wolf writes in his findings, “It is also likely that Flemmi had access to any information known to Naimovitch, who, in 1980, had alerted him to the bug at the Lancaster Street Garage, and was later convicted on charges of corruption.”

Naimovich was tried in the same court where Judge Wolf sits.  Wolf couldn’t bother to check the records in his own courthouse and see what the outcome of the case was.  He saw Naimovich was indicted so he assumed he was convicted.  The truth is that Naimovich was acquitted.

That’s a pretty fundamental mistake for a judge to make.   Not only does he tear down an innocent cop’s reputation in his official findings but he uses his erroneous finding to attribute other wrong doing to the innocent cop.

If history is a judge, Kosilek should hold off a little on his plans.  Wolf has been dreadfully wrong  before trying to twist the facts into his sought after conclusion.  He may be wrong again about how far  the Eighth Amendment reaches.



3 thoughts on “Judge Wolf’s Sex Reassignment Order for M. Kosilek Probably Won’t Stand Up

  1. Hi William Connolly,

    Interesting article. I think the Kosilek case is a little bit different. Whether it will be upheld or not, I don’t know, but the logic behind the ruling is actually quite simple:

    According to Supreme Court precedent, the 8th amendment, as part of its prohibition of cruel and unusual punishment, prohibits deliberate indifference on the part of prison officials to the medical needs of prisoners. As a remedy for deliberate indifference, a court can order the provision of medical care.

    Several physicians who examined Kosilek in prison concluded that sex reassignment surgery was the only adequate treatment for her gender identity disorder*. In bad faith, the prison went through a round of hiring and firing several doctors until they found one that said it wasn’t necessary. This was the first piece of evidence toward deliberate indifference.

    Throughout the course of the trial, prison officials engaged in bad faith actions, including lying under oath at one point and one official saying she’d rather resign than follow a Supreme Court order to provide the surgery, which adds weight to the evidence for deliberate indifference.

    For the issues of security, the prison officials had not followed their own official procedures when they declared that the provision of surgery would be a security risk, which further lends support to the idea that prison officials were engaged in deliberate indifference.

    The prison officials brought up the issue of housing, saying there would be nowhere safe to house Kosilek, despite the fact that the director of another prison in the same state testified that his prison would be able to safely house Kosilek. Again, this points to deliberate indifference on the part of the prison officials.

    There is evidence of political pressure from the legislature on the prison officials to not provide surgery, which further supports the idea that the security concerns are pretextual and the real concern is to avoid controversy. This again supports deliberate indifference.

    Because the prison officials are engaged in deliberate indifference on the part of Kosilek’s medical needs, the judge orders that sex reassignment surgery be provided.

    As for requiring that Commonwealth Care provide sex reassignment surgery, this ruling does nothing of the sort, and really only applies to prisoners where prison officials have shown deliberate indifference to sex reassignment surgery being medically necessary for a prisoner. The 8th amendment does not apply to Commonwealth Care.

    * This necessity in some cases is also acknowledged in psychology textbooks, by the AMA, the APA, and the other APA, and by WPATH.

    1. Beneficii:
      Thanks for the post. It is very informative and adds to some of what I had written a while ago. You’ve pointed out that the US Supreme Court has noted “cruel and unusual punishment, prohibits deliberate indifference on the part of prison officials to the medical needs of prisoners.”
      I believe the Court said it involves “deliberate indifference to serious medical needs. . . . To reach constitutional proportions there must be elements of willful, wanton, or reckless conduct by prison officials who are responsible for providing medical care. Treatment which is grossly negligent or administered with a callous disregard for the prisoner’s welfare is impermissible and the equivalent of an intentional deprivation of needed medical care. Mere negligence is not actionable because it is considered to be the inevitable consequence of attending to the prisoner’s medical needs, not the equivalent of cruel and unusual punishment.”
      The Court in Brown v Plata:”As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. . . . To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. Prison’s failure to provide sustenance for inmates actually produce physical ‘torture or a lingering death.’” Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”
      The issue of course is whether Kosilek wanting a sexual change operation reaches a serious medical need that society must provide. For many people it seems that is not the case. I know there are doctors who suggest it is but there are others who say it isn’t. It is a matter of who is believed. You can always find some expert to support your claim, as you know, especially in the area of psychological impairment.
      Judge Wolf in his opinion noted that “This fact that sex reassignment surgery is for some people medically necessary has recently become more widely recognized” As we know, Judge Wolf likes to write long opinions and delve into new areas of law as he did in the Salemme hearings with his 661 page opinion. To suggest that something that has “become more widely recognized” as recently as 2010 is cruel and unusual deprivation of needed medical care is something of a reach.
      There are three factors that affect the public’s opinions in the Kosilek case. First, Kosilek is in prison for life because he murdered his wife so there is little sympathy for him; next, for many people the idea that you want to change sex is not something that is seriously threatening to life or limb that would amount to cruel and unusual punishment, that is it is not a serious medical need, it is akin to feeling that you would be more comfortable if you were taller or better looking. Finally, it seems that if you’re going to suggest a person incarcerated has that right why then don’t you allow people who have not committed murder and who have never violated the law to have the same opportunity as Kosilek which is a state paid for sex change operation. Shouldn’t the law abiding be better treated than the felons?
      You complain that the DOC went loooking for doctors to support their claim. That is not evidence of bad faith it is evidence of due diligence which is often done.
      I appreciate your thoughts and again thank you for expressing them.

  2. Correction. Flemmi testified before Wolf in 1998-99, but he apparently did not testify at Connolly’s trial in 2002. So, I was wrong to write previously that he did testify. I based that on Shelley Murphy’s article where she correctly pointed out Connolly was found (1) not guilty of telling Salemme and Flemmi an indictment was coming down–this accusation must have been based solely on Salemme’s testimony and (2) Connolly was found “guilty” of telling Flemmi to lie in 1998-99 about Connolly being an “honest” cop; Apparently, Weeks must have testified that Connolly told Flemmi to lie. We all make mistakes. Erasers are not only for erasing mistakes, but for correcting them.

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