Over two years ago Judge Mark Wolf came down with the holding in the case involving Robert Kosilek who was convicted in 1990 of murdering his wife. He changed her name in 1993 to Michelle Kosilek. Wolf ruled that she was entitled to a sex change operation also known as a sex-reassignment surgery that had to be paid for by the Commonwealth of Massachusetts. He based his ruling on the 8th Amendment suggesting it was cruel and unusual punishment for her to be denied that procedure.
I wrote at the time that his order will probably not stand up. I noted how Judge Wolf was the one who held the hearings where Steve Flemmi outed himself as an FBI informant. Flemmi said he could not be charged with the criminal acts because FBI agent Connolly had given him immunity to do them. Judge Wolf bought the argument. He planned to have further hearings to decide if not only Flemmi but also all his criminal friends like John Martorano and Frank Salemme were also entitled to walk free.
The prosecutors appealed to the First Circuit Court of Appeals (Appeals Court). In their argument they suggested Flemmi was a liar and not entitled to be believed. Later, they would use him as their own witness in two cases.
The Appeals Court caught Judge Wolf up short by telling him he was wrong in his findings and rulings. It said an FBI agent had no power to grant immunity to anyone. The court said only a U.S. attorney or an assistant could do that.
That decision was known to Whitey at the time of his arrest. Whitey probably had been planning to use the same get out of jail card that Flemmi thought would work for him. After the Appeals Court decision he knew that was off the table. Working through his attorneys he decided to dump the Connolly excuse. He averred that unlike his partner Flemmi he had made a secret deal with an assistant U.S. attorney named O’Sullivan. He apparently forgot to tell his good friend and partner Flemmi about it.
I pointed out in my prior post that Wolf has a penchant for making errors. I said: “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 again about how far the Eighth Amendment reaches.”
Judge Wolf likes to write long opinions. In the Kosilek case it went on for 129 pages to justify his ordering the medical procedure. In the Flemmi hearings his opinion went on for over 650 pages. His opinion in the Flemmi matter I suggest is rife with factual errors yet it has been the foundation for all the misinformation that has followed in the many judicial opinions, books and articles that have been written about the Whitey saga.
We have now learned that the Appeals Court has come down with the decision on the Kosilek’s appeal. As I predicted it overturned Wolf’s ruling. It found Kosilek has no 8th Amendment right to such a procedure.
From the news reports I read the court of appeals was also concerned with what would happen if he got the procedure. I wrote back then in my post: “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.” The Appeals Court said such a ruling “gave rise to new concerns related to safety and prison security,” if Kosilek would need to be transferred to the state’s women’s prison in Framingham.”
Kosilek is back to square one. His attorneys who represented him who handed in a bill of $724,000 which Judge Wolf ordered the Commonwealth to pay will have to wait a little longer for their money. (These pro-bono attorneys who win suits like this just like the ones in the Boston busing case submit bills for their hours and expenses. This gives them an incentive to find people whose rights they allege are violated.)
Kosilek’s wife was Cheryl McCaul. Her niece said: “she’s glad the court finally stopped the “stupidity.” . . . He nearly decapitated her, . . . “ Kosilek in an interview said that he “came to prison for taking a life in a tragically accidental situation ” It certainly was an unusual accident. McCaul was found strangled with a rope and a wire around her neck.
I’m sure this won’t be the end of this. It should be. Kosilek, though, seems determined to get over to the women’s prison.
Maybe he should try with the Massachusetts Supreme Judicial Court (SJC). Article XXVI of the Commonwealth’s Bill of Rights states: “No magistrate or court of law shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments.” (my emphasis) It wouldn’t be the first time the SJC found we had greater rights under the Commonwealth’s Bill of Rights than under the U.S. Constitution.
As the dissent said – the court is going to be very busy in future distinguishing all other cases involving customary, necessary, mainstream, minimal medical treatment in order to show that transsexuals, and only transsexuals, are not entitled to it.
Otherwise all that’s necessary is for the prison authorities to spend years finding one physician to say that the treatment is not always necessary in every case – and it’s deemed un-necessary regardless of circumstances as long as the medically ignorant prison authorities say it’s not.
Zoe:
It’s not quite as simple as that; the other side of the coin is that all the prisoner needs to find is one physician deeming the procedure necessary. The real problem the prison people seem to be wrestling with is putting a guy who becomes a woman in a woman’s facility. I would worry about the courts becoming too busy since they seem to have a lot of time on their hands as it is.
Really? The Massachusetts Constitution also has the following:
“Article XVII. The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.”
Nowhere in Article XVII is there any mention of the requirement that the Chief of Police of any city or town or of the head of the State Police find that any of the people are “suitable” to exercise the “right to keep and bear arms”. The “common defense” being provided by the militia, which is comprised of every able-bodied person of appropriate age, capable of bearing arms, and bearing them, typically at their own expense. The Massachusetts National Guard is not the entirety of the militia, as they are merely the “organized militia”, with the great bulk of the citizenry are the “unorganized militia”. The current system in Massachusetts requiring a license to carry firearms and certification of suitability of a person by local government authority completely perverts this. What other “right” in Massachusetts requires such preapproval by a government authority after application and payment of a fee to exercise? What other individual right is presumed to be a collective right [Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976)], subject to arbitrary denial to some individuals, so long as some others individuals (the “collective”) are granted the “right”? Can we presume that the right to gender assignment surgery at Massachusetts taxpayer defense is a collective right but not an individual right in Massachusetts?
http://www.guncite.com/journals/halvt.html
http://davekopel.org/2A/Mags/Collective-Right.html
http://www.law.cornell.edu/uscode/text/10/311
http://www.heritage.org/constitution#!/articles/1/essays/56/organizing-the-militia
BTW The right to keep and bear arms was held to be an individual right by a 2008 SCOTUS [District of Columbia vs. Heller] decision, and the 2010 MacDonald [MacDonald vs. Chicago] decision held that it applied to the states. There was no language that stated “except Massachusetts, which has other notions of rights.”
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/beararms.htm
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/mcdonaldvchicago.html
Ed:
There is no way to know what the Massachusetts Supreme Court will do. Remember the people passed a Constitutional amendment saying judges must retire at 70 years old but that court said that didn’t mean they couldn’t be called back to sit after they retired. So it totally ignored the will of the people so that it is doing it in other areas should not be a surprise.
Cruel and unusual is claiming your wife’s death was accidental when she was found with a rope and wire around her neck. Kosilek can have the surgery — just as soon as she can pay for it; the exact same thing we expect from non-criminals if they want this surgery. That Kosilek is in prison is no one’s fault by Kosilek’s. Choices have consequences.
If denial of surgery is cruel to an incarcerated person, so too is it cruel to deny it to a not-incarcerated person. Unless the state of Massachusetts is going to bankroll gender reassignment surgery for anyone that wants it, it should not bankroll it for a convicted and incarcerated murderer.
M:
That was my position but it gets a little more complicated when someone is in the can. If Kosilek is given the surgery, where is she supposed to serve the time, with the boys or the girls?
She offered to pay for it herself over 20 years ago.
But prisoners aren’t allowed to do that. If a treatment is medically necessary, it is provided by the penal authorities. If not, it’s forbidden.
Here the appeals court ignored matters of law, and substituted their own judgment of the facts. They went against mainstream medical opinion.
It is very difficult to argue the case that the fix wasn’t in before the trial started, given the non-standard, even unique method the appeals court adopted, essentially paying zero deference to the judge.
Zoe:
I know she offered to pay but as I said the prison authorities had a problem with putting her in with the women. The appeals court didn’t ignore the law, it just interpreted it the way it wanted the result to come out. That’s what happens in most cases since it is not difficult to find precedent for anything or to be able to distinguish the undistinguishable from past precedent. You may now the appeals court has had prior difficulty with the trial judge since he seems to like to make up his own law.
If Flemmi was a liar in 1999 according to the DOJ how did he become credible in 2008? What flipped him from a serial killer. career criminal, not to be believed type to a star witness for the DOJ? Aren’t they irreconcilable claims? Were the assertions against Flemmi by the DOJ provided to defense counsel in Florida? Did the Florida jury know of the prior DOJ position? Flemmi’s claim that he was an informant in 1999 was true. His immunity boast was nonsense. Nothing he said in 2008 was true. The ” stupidity” hasn’t ended. Not in Connolly’s case or at the Moakley Courthouse.