The last week or so I got distracted by things that happened in other areas of the criminal law and strayed from my main topic. I’ll do that on occasion but when I do from now on I’ll note that I’m going Off Subject so if you are not interested in those matters I won’t be wasting your time.
I noted significant developments in two areas that I have previously commented about. Amy Bishop (who I referred to in one of my columns as Amy Fisher – remember her?) has had her truncated trial and will spend the rest of her life in prison. You’ll note that she didn’t try to use some type of insanity defense. I’d have expected that given the uproar that occurred around here when it was learned that she was not charged with any crime as a result of killing her brother twenty years earlier. Many complained that she had a significant mental illness that could have been treated with some psychiatric help. They suggested the result would have been that she would not have later killed the three academics in Alabama as if twenty years had not intervened.
Amy did not have mental health problems that made her incapable of understanding her acts. What she seemed to have is an evil mind that planned out revengeful actions against others coupled with a rage complex. The killings in Alabama were planned as was the letter bomb she was alleged to have sent to another professor. The incident in the House of Pancakes was part of her inability to control her rage. We will never know what prompted the killing of her brother but I still believe it was an accident.
I hope the Norfolk District Attorney Michael Morrissey recognizes that nothing will be accomplished by bringing her back here to face murder charges stemming from her shooting of her brother. Even if she were convicted we have no death penalty so she is doing all she can do. The victims in the case here, the parents, have suffered enough losing a son and seeing a daughter convicted of murder who will die in prison. The victims in Alabama are content with the way in which their authorities handled the case.
Aside from that I would think DA Morrissey has already enough facing him with the Annie Dookhan drug laboratory matter. He will have to concentrate a significant amount of his resources on unraveling that.
David Meier who was appointed to clean up this mess is wasting no time. He has already identified 1,140 people who are presently in prison whose cases will have to be considered because Annie had some involvement in doing their drug analysis. He’s wisely brought together the players involved hoping to come up with a uniform game plan. He will have to established a red line beyond which he will no longer consider Annie’s actions as affecting convictions. (I use “red line” because it has gained some recent currency in usage.) Does he have to assume they go back 9 years? If so then there will be at least two or three times that many who have already done their time in prison or jail.
Massachusetts law gives each person wrongfully incarcerated for a felony the right to sue for up to $500,000 and the right to a jury trial to determine the amount of damages. If there were 3,000 and each got the maximum that would be 1.5 billion. I’m not so much concerned about that because I think the Massachusetts courts can control those cases to insure the damages accurately reflect the harm done which for most should not come close to the five hundred thousand mark.
I worry more about the damages that may come from the violation of the person’s civil rights that may result from cases brought in federal court that will not only include those who are incarcerated but all others who were convicted and damaged, such as losing a job or not being hired, by the alleged intentional actions of Annie.
The remedy in the federal court exists under 42 U.S.C. § 1983, commonly referred to as “section 1983” which gives a person who is deprived of any rights under color of law by the state and is injured a right to sue. That’s the statute that Michelle Kosilek sued under. It is unclear whether the actions of Massachusetts will be considered shocking which seems to be required to prevail in such cases. Because I have no expertise in 1983 actions all I’ll say is I’m sure someone’s going to see if the actions of Massachusetts in the Annie Affair give rise to such actions. If they do, things will get very expensive.