I ran into this lawyer over the weekend. He doesn’t do any criminal work. I asked him if he wanted to hear about an outrageous case. He indicated a willingness to hear my rant so I told him about the case against Timmy Flaherty. I showed him the indictment which he read.
He listened, read, and asked a few question, and said, “it is outrageous.”
I said, “I don’t understand how Ortiz’s office could bring such a case.”
You could have knocked me on the floor with a feather when he said: “I don’t understand how they couldn’t.”
I explained how in Massachusetts we have the law that allows attorneys to try to work out an accord and satisfaction with a witness. That involves contacting a witness and seeing if the case can be settled and coming to an agreed amount to do that. I said that is all Flaherty did. There was nothing wrong with what he did except he didn’t file the paper work with the court. He figured once the victim took the money it was just as easy for the victim not to show up in court and the case would be dismissed which would have been the same result had he filed the paper work.
The lawyer listened and said he agreed with that.
I said, “well why don’t you think that is outrageous that they indicted him?
He responded by telling me I was talking about what happens in the state. The federal officials also have responsibilities under the federal laws. He pointed out that the charge did not involve anything involving the payment of money that I was talking about. It involved an act which interfered with what the federal government was trying to do.
He went on. “Look, Flaherty’s client already has had trouble with the feds. Here, it says he’s been federally convicted for interfering with a flight crew. He’s on supervised release, whatever that is. Now the feds hear about him beating up a guy and calling him “You little Mulsim . . . you f-ing terrorist.” I’d think they would have been remiss had they not wanted to look into what happened.”
I said I knew that and that was what the settlement in the case was about.
He went on: “That’s where you are wrong. That’s what the state case is about. The feds were investigating whether Flaherty’s client violated that federal statute, the federal hate crimes law. That’s totally different from the assault case. They wanted to talk to the victim and find out exactly what happened to see if they should charge Flaherty’s client. I can understand him telling his client not to show up in state court because of what you said; but, look he told the victim who asked him what to do when a woman from the feds called “to blow her off” and not to call the FBI agent back. That looks to me like interference with a federal investigation.”
We went back and forth for a bit. I said I thought the federal investigation was not in good faith; he responded I could not know that since they take hate crimes very seriously. He reminded me that I always told him the federals do take themselves quite seriously and knowing that, it is important that when involved in dealing with them you have to treat the matter the same way.
We then went on to other matters one being a discussion of whether Boys in the Boat is as good as people say. We both agreed that their win at the Olympics was not a big deal especially since U.S. teams had won the rowing event before and they were all white guys which would not have bothered Hitler. We both thought the only important American win at Hitler’s 1936 Olympics was Jesse Owens’s wins. Jesse was from a group Hitler considered less than equal to the German people. His wins were a slap in his face.
Later, thinking about my talk I realized I had been looking at Timmy’s case from a state point of view rather than a federal one. I understand why the federals could have been upset. For the first time I saw that a jury could actually find Flaherty had committed that crime.
I’m sure Flaherty has already lost a lot of sleep. He should not lose his livelihood over this mistake. The point has been made. I hope now that calmer heads prevail and the big picture is taken into account that no crime was contemplated or intended.
This is a matter that should be settled between the parties short of a trial or a conviction. Flaherty erred and caused a great misunderstanding. He was too busy with his cases not to recognize the cavalier approach he took to the federal request was wrong. No harm has been done. The federals have made their point. It is time for some real justice.
Matt,
New DV law passed in the wake of Remy amended the accord and satisfaction statute. No longer can use for DV cases.
Jim:
Thanks, it did not make sense to me that the courts would allow accord and satisfaction in domestic cases but when I read the 2006 case and then the statute I figured that was the case. I’m glad I was wrong and they changed it so that it isn’t available there.
Quick note Matt. The Massachusetts Accord and Satisfaction Statute, G. L. c. 276 s 55, does not apply to felonies and does not apply to domestic abuse. So if Flaherty’s client was charged with witness intimidation or an aggravated AB, then the accord and satisfaction would not apply.
Jim:
Thanks. I noticed that one of the charges was an A & B with a dangerous weapon which is a felony that would not be covered under the statute. That may involve what is called a “shod foot” – that is Flaherty’s client was wearing shoes or sneakers. Lawyers will sometimes figure they can get that thrown out an the charges limited to the straight A & B so they go ahead with the idea they’ll get the accord and satisfaction and have the DA get rid of the felony if it is not a case involving serious injury.
Strictly speaking as you suggest it does not apply, if the victim and ADA work with the defense counsel they can get around it.
I thought also that it did not apply to domestic abuse but I read a 2006 case where a guy gave his wife a black eye and she showed up with the accord and satisfaction and the court held that was all right to do. Unless they changed the law on that and specifically excluded domestic situations (which I have been unable to find) then you can do it in domestic cases. As far as the hate crime aspect that also can be a misdemeanor under the statute.
The defense lawyers try to work themselves into the statute to get their client off the hook so it is hard to say from the outside and not knowing the full facts whether Flaherty could have done that or not. But you do make the right point.
nc wrote
“The lawyer you ran into is unfamiliar with criminal procedure and the U S Constitution.”
They teach neither in laws school now?
Ed:
Without telling stories out of school, the lawyers coming out of law school know about one-tenth of the law we did when we graduated. I am serious. You are not supposed to tell anyone that however.
Some wags will tell you that is because there is ten times more law now.
Ed:
The wags would be correct.
Flaherty case is an invented crime and may involve racial and religious profiling. Patty hits the nail on the head. The lawyer you ran into is unfamiliar with criminal procedure and the U S Constitution. He probably thought the probation officers committed a crime. Both of those matters along with many others were manufactured crimes by a government agency so incompetent that they couldn’t catch a terrorist when Putin handed them one on a silver platter. They then orchestrated an elaborate scheme to pretend Tamerlan was unknown to them. The Russians outed them and their fake press conference was exposed.
NC:
1. The case against Flahery was based on a set up but it is not invented it is arguably a violation of that law he is indicted under. The real tragedy in it is that Wyshak, if not him then others in his office, know Flaherty. They know he is not a criminal. But they went about trying to turn him into a criminal with a Big Lie. The victim who has contacted the federals calls Flaherty and wants to know if he should contact the federals. Where are the prosecutorial ethics in bringing this situation about?
2. Another question that occurs to me is why the rush? Why didn’t they play out the string and see what Flaherty would do at the next hearing.
33. Then finally, where is the harm? Is it possible to commit a crime from which no harm results. Isn’t the idea behind a crime that it has been created to prevent a wrong from being done? How is it possible for the government to allege a person attempted to interfere with a witness contacting it if the witness has already done so? Can you let the horse out of the barn if it isn’t in there?
The verbatim quotes of Flaherty in the indictment strongly suggest the phone call from the alleged victim was set up and recorded by the Feds.
The victim, therefore, was not only unhindered, he was actually sitting with the Feds when he called Flaherty. If the Feds were interested in bringing a hate crime against Flaherty’s client, they already had everything they needed sitting right in their office. Instead, they had the victim call Flaherty and lie to Flaherty about his circumstances. The victim wasn’t confused about whether he should call the Feds back. He was sitting with them while they gave him the lies to tell to Flaherty to make out the necessary elements of a crime that isn’t even a crime in every jurisdiction. That is simply outrageous conduct by the Feds.
There was absolutely no need for the Feds to create a crime against Flaherty here. There are real crimes occurring that should be investigated before the federal government creates new ones. Artwork is disappearing around Boston. People are being shot by mysterious backseat shooters. Chechnyan terrorists (on the FBI watch list) are blowing up children, then relaxing for a few days before executing a cop, carjacking a yuppie, and going on a rampage that shuts down a city (except for the Dunkin Donuts shops).
How many attorneys in Boston would have fallen into the trap the Feds set for Flaherty? I’d guess that it would be almost every attorney. So why select this attorney? What demographics does Flaherty represent that the Feds have gone so far out of their way to make an example of him?
P
Patty:
1. I am assuming the victim was sitting next to FBI guys who had recorded the phone and had written out the statements they wanted the victim to make and that they were doing it under the direction of guys from Wyshak’s unit. You can just see how with the earlier recorded call done in the same way where the victim said a person with the hate crime unit wanted to talk to him that it was reviewed by the DOJ lawyers and someone said that it had to be tightened up because the law requires involvement of a law enforcement officer. That resulted in the second call. The quick rush to get to the grand jury (why the rush) also implicates a long term involvement by Wyshak’s unit.
2. I agree with your second paragraph fully. The federals had the victim lie to an attorney hoping to lure him into committing a criminal act. I think they outsmarted themselves though. When the call was made the victim had already contacted the feds so Flaherty telling him not to could not hinder, etc. him doing so. The real question is why? These guys know Flaherty? Why are they doing this? How can they look in the mirror in the morning?
3. About other crimes, apparently there aren’t that many that come under Wyshak’s mandate. That’s why they are scraping about with Fitzpatrick and Flaherty to do something.
4. If the federals are going to use this “hinder” statute all defense attorneys could be at risk telling their client he should not to talk to the federals because that could hinder the communication going to them. The words “knowingly corrupt” wold seem to protect them. But what good is it if people like Wyshak knowing that Flaherty did not have a wrongful motive nevertheless indict him. He may have it thrown out because of that but a lot of the damage has been done with the indictment alone.
5. Defense attorneys take short cuts and make mistakes every day that could be interpreted as violating on statute or another. No other prosecutors office in the state has ever indicted one for something like Flaherty has been indicted for. That tells of how far off the mark his indictment was.