November 13, 2025 • 39 mins
Bradley Jay fills in for Dan Rea. Does Massachusetts’ highest court have the authority to raise the salary of public defenders? That’s the question that is being argued in front of the Massachusetts Supreme Judicial Court. Beginning in May, many court-appointed lawyers stopped taking new cases to try to force state lawmakers to raise their starting salaries of $65 an hour. There is concern over the number of criminal cases dismissed due to a lack of representation. Michael Coyne, the Dean of the MA School of Law joined Bradley to discuss.
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Speaker 1 (00:01):
It's Night Side with Dan Ray on WBS Boston's news radio.
Speaker 2 (00:07):
Hiks Dan Watkins for that news I'm Bradley Jay and
for Dan Ray. We're with Michael con dean of the
Massachusetts School of Law, and we're continuing with a question
from Jane in Shrewsbury. And it was complicated to me
by Dean Coin being the attorney and educated that is
seemed to grasp the situation right away. And Jane, since
(00:28):
it's been some time, can you sort of refresh us
in the simple version of what is what your question is?
Like the simplest part so even I can get it.
Speaker 3 (00:39):
Yeah, well, I was just going to refresh the last part,
but I could go through the whole thing again, but
I don't want to waste I can do.
Speaker 4 (00:47):
The last part.
Speaker 3 (00:50):
Is just if the person can be forced to forfeit
money that they inherited outside of a will, if they've
tried to commit a fraud against an estate.
Speaker 5 (01:00):
Yeah, I mean the thing is when I think when
you're talking about that they've received money outside the estate,
so that whether it's a bank account that was a
shared bank account, or some other property you usually.
Speaker 3 (01:15):
Yeah, like insurance or you know, investment account or something
like that.
Speaker 5 (01:19):
Well, they now have funds, and so those funds could
it be used to satisfy any judgment you might get
against them for the fraud that was perpetrated on you
because you've you've obviously had a significant expense that was
incurred as a result of this. But it all really
comes down to can you prove the fraud in the
(01:39):
first place, because if so, well, then you have an
argument that these cars that you have a right to
sue her to try and recover some of this money
that you've spent, and it's ill gotten gains for her,
but you'd have a judgment that you could then try
to attach those that property that she has, whether it's
insurance or an investment account or whatever.
Speaker 4 (02:00):
Interesting. What do you think your odds approving it are.
Speaker 3 (02:05):
I think the odds are really good, but you just
never know if you end up before judge.
Speaker 2 (02:11):
Right, Well, that's that sounds like it's a lot of
stress for you, Jane, Yeah.
Speaker 3 (02:16):
I mean that's the whole thing is. I think the
person just doesn't realize the imposition they're making on someone
else's life for their own, you know, wishful state or
what have you. That there's actually a consequence for somebody else.
Speaker 5 (02:29):
How do you so clearly know that it's a forged document?
Speaker 3 (02:34):
Things, Well, we paid a handwriting expert to evaluate it,
who said that none of the signatures on it are
actual original signatures, all of them are copies.
Speaker 4 (02:49):
Is how do you know that person is an expert?
Speaker 2 (02:50):
You know, when they go into court, you're gonna have
they're gonna have to say where you went to school?
Speaker 4 (02:54):
I learned this, and.
Speaker 2 (02:57):
You're tell me about where you went to school, and
how long you've been doing this, and do you have
any degrees in it? And do you belong to any
handwriting analysis organizations?
Speaker 6 (03:06):
Exactly?
Speaker 5 (03:07):
And there are people with such expertise and they charge,
they charge good money for their services, and they are
they There is an ability then to be able to
say that the document does not compare it to an
acknowledged original and therefore the indication is that it has
been forged or taken from somewhere that's improper.
Speaker 4 (03:29):
So my job, as her opponent would be when petees
this testimony.
Speaker 5 (03:32):
Well, they may have their own expert. They say, yeah,
they're just the opposite. Oh no, no, this is fine.
Speaker 4 (03:38):
So can you go shop? This is good? Can you
go shopping, you do for an expert. Hey, look, yeah,
I got this gig for you. If you can tell
me these two signatures a match. Isn't that kind of shady?
Speaker 5 (03:52):
It is shady the way the way some experts are obtained.
Speaker 6 (03:57):
But there's a reason for her.
Speaker 5 (04:00):
I don't want my own money being used against me
at trials, so I need to know before we hire
you that you can support my version of the events.
So make an assessment, take a look, and we can
talk about what I need for you to be able
to say if I'm going to hire you. But yeah,
(04:21):
that's the fact is the the the alternative is much worse.
So now I've paid you five thousand dollars or whatever,
and you end up showing up for the other side
to testify, client's going to have to.
Speaker 2 (04:33):
There's a fine line between vetting an expert and influencing
the expert.
Speaker 5 (04:38):
That's correct, that's correct, And there are times where the
expert will say, I can't support that.
Speaker 6 (04:43):
That's not the way it looks to me.
Speaker 2 (04:45):
Right now, can they opposition try to prove that you
did influence the expert to see it your way?
Speaker 6 (04:53):
Oh?
Speaker 5 (04:53):
Sure, that's cross examination. You know who who assisted you
with it, what they.
Speaker 4 (04:59):
Tell you, what they wanted, etc.
Speaker 5 (05:01):
Well, they're not going to ask that, because the lawyers
should be smart enough not to tell them what it is.
But I do want to see the exchange of information
between them because that would indicate to what extent they
may have been influenced as ice as the other side
sees it improperly. So do you think you're going to
go to court, Jane? If so, can I attend that?
I think it would be interesting.
Speaker 3 (05:25):
I have no idea like how that, how much notice
I would have or what have you. I don't It's
not like a super long drawn out type of trial,
you know, with a big audience. But there's also the
chance of settling. But then if we settle, how do
we even know that the money that the person got
outside of the estate was legitimately got as well since
(05:49):
they control the paperwork, since they live in the same
building as the person who died. Okay, it's very complicated.
Speaker 4 (05:56):
All right. I appreciate you sharing with us. I appreciate
that very much.
Speaker 2 (06:00):
Luck Wow, speaking of wills and all, this would be
a good opportunity.
Speaker 4 (06:07):
Everybody should have a will, right everybody? At what age
should you get a.
Speaker 5 (06:09):
Will, well, you actually should have one early because even
when you're twenty right, well, twenty twenty, you.
Speaker 4 (06:18):
Just put some banana and some dimes.
Speaker 5 (06:20):
But once, once you have children, once you have some assets,
it's not because it's not just your assets that you're
going to decide where they go, because otherwise the state
will decide which of your relatives will get them. But
also you can make determinations about who should be the
godian from your child in the event you die, who
should hold the child's money in the event you die,
(06:43):
and how long and what could that person pay for
the child. We used to we usually use the language health, education,
and well being. So when it's a pair of sneakers,
that's going to be covered. But if it's high school
or college, that's going to be covered as well. But
you don't want a child to have massive amounts of
(07:03):
money once they turn eighteen. That's very dangerous priced to do.
Speaker 2 (07:09):
And of course, usually when folks have a will, and
this is important, you might think that everyone knows this
and may have already done it.
Speaker 4 (07:16):
They should have.
Speaker 2 (07:17):
A will because it's a real burden on your loved one,
your survivors if you don't besides the fact they may
not get what you want. You're putting them through this
kind of red tape hell.
Speaker 5 (07:30):
And a lot of times with the will people, also
the lawyers would encourage the individuals to execute a health
care proxy. I explain what that is exactly. Health care
proxy dictates or at least says, in the event you're incapacitated,
who will make those decisions about potential treatment or the
(07:51):
lack of treatment. So it should be someone that you
obviously trust extensively, and also who shares your wishes or
at least will you know, will honor your wishes, whether
it's do not resuscitate or whatever under the circumstances.
Speaker 2 (08:08):
Here is a key, key question. Is there sort of
a conflict of interest that would should you not have
the person who is in charge of your health also
be a huge beneficiary in your will, because then you
could get a.
Speaker 4 (08:23):
Conflict of interest. I know you kind of laughing.
Speaker 6 (08:27):
I am laughing.
Speaker 4 (08:27):
On the other hand, people are not altogether nice all
the time.
Speaker 6 (08:32):
So the bounty of your faction.
Speaker 2 (08:34):
We're going to go bullet plug because I and stand
to get a million bucks.
Speaker 5 (08:38):
So the bounty of your affection, who you're going to
give your life, savings and everything you you might not trust.
Speaker 6 (08:44):
You don't trust them.
Speaker 5 (08:45):
Okay, well, shouldn't they be getting your money?
Speaker 2 (08:50):
Maybe getting into choppy territory here, But let's let's say
it's your wife. Maybe you have nobody else you want
to give it to you, But maybe you don't trust
your wife. Not every husband trusts every wife, or vice versa.
So is it wise to sometimes get it have them separate?
Speaker 5 (09:07):
Am I just I'm having problems getting my arms around this.
Speaker 6 (09:11):
I would not be giving all my money to.
Speaker 5 (09:13):
Someone I don't trust, all right, Okay, I don't know
about most people.
Speaker 2 (09:18):
I guess maybe I think the worst in all cases.
Some people figure everything is probably going to be Okay.
I figure if something bad can happen, it will, and
and that's kind of how I operate my life. So
what if this giant sum of money, giant sums of
money can make people that you do trust act act badly?
Speaker 6 (09:43):
You're right, I am right.
Speaker 5 (09:45):
We know some people will be motivated improperly and and
but but again, they don't deserve to be a healthcare proxy.
Speaker 4 (09:55):
Look out in the world and see all kinds of
bad things happen to good people.
Speaker 6 (10:00):
And no doubt about it.
Speaker 5 (10:02):
Like you're a normal guy, mostly better than normalst what's
better than my wife would disagree.
Speaker 4 (10:08):
There are a lot of subpar people out there. All right,
this is fun. Let's take a break. I don't want
to rape, but we gotta. It's WBZ.
Speaker 1 (10:19):
You're on Night Side with Dan on WBZ Boston's news radio.
Speaker 2 (10:24):
Red Jay and for Dan with Dean Michael Coin from
the Massachusetts School of my favorite school of law. We
were talking about will's and healthcare proxy and then this
power of attorney. The three generally go together, correct, right,
and so can you talk about what power of attorney
is and why that should be done when you get
your will and your healthcare proxy done.
Speaker 5 (10:44):
Power of attorney authorizes someone to act in your place
if you're unable to do so, or even if well.
You can determine whether it's only in the event of
a disability, or they can act for you in your stead.
For instance, I suppose you have an elderly parent who
can't regularly get to the bank or do other things,
so they could designate their son as a daughter. What
(11:08):
I'm picking son because it would be me that they
could designate that person as in essence they provide them
a power of attorney. It's a document that's signed by
that person and then notarize so that it's official, so
that then others could rely on that if you were
acting on behalf of your mother or someone else, that
(11:30):
you are in fact legally authorized to act. So sometimes
a lot of people do it so that it only
takes effect in the event of a disability, such that
if you think about it, well, then someone's in the
hospital or laid up for a period of time. How
does the mortgage get paid? How do the bills get
paid that are due in the house. You need to
(11:51):
have some ability then to go to the bank and
move some money around and to actually execute documents as well.
The power of attorney allows you to do that as well.
Speaker 6 (12:01):
What happens if you.
Speaker 4 (12:01):
Don't have a will?
Speaker 2 (12:02):
What is the the procedure or what happens to your.
Speaker 6 (12:06):
Stuff if you when you die?
Speaker 4 (12:08):
If you die intestate?
Speaker 5 (12:09):
Okay, Well, the law decides who your heirs will be.
If you have children, it would and know well, if
you have a spouse, uh, significant portion is going to
go to your spouse. Uh. If you have children, then
that you usually would descend Uh. This domestic partner. No,
the domestic partner is not concerned.
Speaker 4 (12:30):
That's one of the benefits of getting legally married.
Speaker 5 (12:32):
Absolutely well, or get a will, okay, right, because and
that's the problem. And if you have a domestic partner,
then you better have a healthcare proxy for that person
as well, because it won't be your partner, if you're
not married, it won't be your partner making the calls.
It'll be some blood relative and that that may not
(12:55):
be what you who you want making those determinations. And
it really does that of it becomes quite problematic for people.
Speaker 4 (13:03):
Okay, I appreciate that, folks. You really should get that done.
Speaker 2 (13:06):
And the reason this popped up is because we did
have a call from Jane and Shrewsbury who has an
issue in that area. Now, can we get back to
the wals trailer Brian Wells trial.
Speaker 4 (13:16):
Lots of ins and outs on that.
Speaker 2 (13:19):
Now, uh, how about the heart evidence there were did
you was there any weapon found?
Speaker 4 (13:28):
No?
Speaker 6 (13:28):
I don't believe there was any weapon.
Speaker 5 (13:30):
There's the there is evidence, but it's much more of
a circumstantial evidence case, so that you've got a lot
of searches that are very incriminating on the various devices
that were in the house. You have the video from
home depot, you have the trail from his ankle bracelet
(13:52):
showing him visit visiting various dumpsters, and and so there's
there's evidence to support it in obviously no one has
seen or heard from her since that night.
Speaker 2 (14:05):
Rules of evidence wise, Okay, a lot of times you're
not able to bring in past crimes into this trial.
Speaker 4 (14:12):
Correct.
Speaker 2 (14:12):
If some evidence is based on an ankle bracelet, then
that would necessitate bringing that these past crimes in. Otherwise
they wouldn't have an ankle bracelet. Would that say that
you couldn't bring in the evidence that is based on
having an ankle bracelet because that speaks to previous crimes.
Speaker 5 (14:31):
Well, first of all, you are right. Generally you aren't
allowed to use prior criminal offenses to show propensity to
commit crimes. But in this case, they both the ankle
bracelet and the earlier conviction may well be relevant. The
ankle bracelet becomes relevant because it allows us to track him,
(14:51):
and you could say he had an ankle bracelet, honor,
you could say it was tracked by way of a
GPS or a location device. We could sanitize it, so
you don't necessarily know it's an ankle bracelet. But to
the other part of the problem is, I think you're
likely to be a They are likely going to admit
(15:13):
the evidence that he was on probation for an theft
item at forgery, and that he had restitution to pay
which was well beyond his means.
Speaker 6 (15:25):
He was unemployed.
Speaker 5 (15:25):
Okay, so this goes to motive exactly, And so you
could introduce that as it goes to motive that he
was desperate to stay out of jail to be able
to raise some money somehow, and she was well insured,
so that there would gave him a motive to build
(15:46):
kill her, take the money, pay off his restitution award,
and hopefully, as he would see it, stay out of jail.
Speaker 2 (15:55):
Is it ever a defense that that plan seems so
dumb that no one in the right mind would do it?
Speaker 4 (16:02):
Would would follow.
Speaker 6 (16:04):
That, isn't the partner always?
Speaker 2 (16:06):
Well, yeah, first first suspect, first suspect, and for a reason.
But it's thing number one. He's you'd think he had
watched enough Stevie to know that. But then you got
to know there are cameras at home vapor or whatever
home goods.
Speaker 4 (16:20):
Still he went and bought this.
Speaker 6 (16:22):
He went to Home Goods too, was.
Speaker 2 (16:27):
Establishment he went to Of course, there are cameras all
over the place right there, I mean she and then
how how difficult is it to overcome the lack of
a body.
Speaker 5 (16:40):
It's not, it's it can be overcome.
Speaker 3 (16:43):
Uh.
Speaker 6 (16:43):
There's been many cases actually where it.
Speaker 5 (16:46):
Was the most most famous around this area was Robin
Benedict was killed by a professor from Tufts and they
were arguing, oh, she's not dead, she's going to show
up for trial, until he pled out to the manslaughter
and went to jail for twenty years. Professor Douglas, there
was one in Connecticut where the woman's body was disposed
(17:08):
of by way of a wood chipper. So you can't
prove death other than producing the body. It's just unusual
because again that's usually the easiest thing to prove in
the murder case, is that the person actually died.
Speaker 4 (17:23):
Okay, now tomorrow you mentioned there's a competency hearing.
Speaker 6 (17:26):
Yeah, on Brian Walsh.
Speaker 2 (17:27):
And there are different kinds of incombonants. You made the
distinction earlier. Do you remember that conversation again?
Speaker 6 (17:36):
I do?
Speaker 4 (17:37):
Can you we don't refresh your memory?
Speaker 2 (17:39):
Can you recount that for us here in the courtroom.
Speaker 5 (17:43):
Well, the competency to stand trial for Brian Walsh is
very different than Lindsey Clancy's argument that when she killed
her three children she was insane and therefore not criminally responsible.
So there's one part of this takes place at the
beginning of the trial, and that's Brian Walsh's. What the
(18:03):
argument here is, as a result of the injuries he
suffered in prison in Norfolk County, that his mental state
has taken a serious decline and therefore he may be
no longer competent to stand trial. And what that means
is that because of this mental health issue, he can't
(18:25):
appreciate the charges against him, he can't cooperate with his
lawyer in offending him. And you know, there's some many
serious questions that he's going to answer. Do I testify?
Is it to my advantage to testify? What witnesses should
we call? He needs to be fully aware of both
(18:46):
these important decisions and sufficiently knowledgeable to make them. If
his mental health is in fact in serious decline, then
the court could determine. I don't think it's likely they
could determine tomorrow that he is not competent to stand
trial at present. Trial should begin sometime next week if
in fact, he's determined to be competent. The judges kept
(19:08):
a pretty tight schedule on this case and has scheduled
it to start as early as next week, with testimony
beginning after Thanksgiving.
Speaker 2 (19:18):
I have a question we can answer after this breaking.
The question is this, but won't answer yet. Isn't it
coming upon the state to look after your well being
when you're in their custody?
Speaker 6 (19:28):
Oh? Sure, but oh you want to answer what we
get back?
Speaker 4 (19:30):
I want when we get back?
Speaker 2 (19:31):
That's the big Tea's Well, yeah, how come these things
like this happen so often?
Speaker 6 (19:36):
They?
Speaker 2 (19:37):
Or do they really happen so often? Is that just
kind of a tale? Let it happen often?
Speaker 4 (19:42):
We'll find that out after this On WBZ.
Speaker 1 (19:45):
It's Night Side with Dan Ray, Boston's news radio.
Speaker 2 (19:51):
You know, folks, if you should miss any portion of
any segment of any night side show, or maybe you
just want to hear it again, or maybe you want
to share it with someone, just google night Side on
demand and it will take you right to the podcast,
which the Rob Brooks or whoever's working the wheel there.
They put out right away, so they're available the next day.
It's quite cool. That's just Google Nightside on demand. And
(20:15):
by the way, a shout out to Dan Ray. We're
here with Michael Coin the Massachusetts School of Law talking
about Brian Walsh case. The defendant Brian Walsh, resident of Cohassett,
and the alleged victim and a Walsh. That jurisdiction, by
the way, would be Norfolk County. Now tomorrow was a
(20:36):
hearing a fitness to stand trial here and a competency here.
And this is because the defendant was stabbed in jail.
And I asked a question prior to the break doesn't
the state be isn't it incumbent upon the state not
to let that happen? And if it happens, can you
(20:57):
sue the state? And your answer was.
Speaker 5 (21:00):
The answer is that you should expect that violent things
will happen if we house a whole bunch of violent
people together. And so it comes with the territory. So
I understand the point. But no matter what, the state
can't always keep you safe in these violent, dangerous well
(21:20):
even more than just simply negligent. You'd have to show
that somehow they really disregarded the safety precautions.
Speaker 6 (21:28):
That they owe to you.
Speaker 5 (21:30):
And the fact is is that they do take an
awful lot of safety precautions. They really do try to
make sure that everyone's safe. With that said, there's an
awful lot of violent things that happen in prison among
the prisoners that are there, and it's not easy then
to recover under those circumstances.
Speaker 2 (21:52):
So that do the best they do with the tax
money where we want to give them.
Speaker 5 (21:56):
Well, and that I think that people feel in part ispriate.
We want, we would hope that it'd be safer, but
I think it's not realistic to think that prisons are safe.
Speaker 6 (22:07):
They aren't.
Speaker 5 (22:07):
There's awful lot of horrible things that take place there.
Speaker 4 (22:11):
And so and the public considers that part of the punishment.
Speaker 5 (22:14):
I don't know whether they consider it part of the punishment,
but certain I'm certain they don't want any more of
their tax dollar is spent, Okay for it.
Speaker 2 (22:24):
So here's the rub, and we discussed this as well,
and that is it's too bad that you are put
in a place with violent criminals as if you are
a violent criminal, even before you've been convicted.
Speaker 4 (22:40):
Well, it seems unfair.
Speaker 5 (22:41):
That's that's an absolutely legitimate criticism, and I think that's
why our Supreme Court has said that we favor the
individual's right to bail pending trial because of the presumption
of innocence. It really is unfair to put someone in
jail while the case is pending simply because they can't
(23:05):
make the amount of bail that the court has set.
So the court, now Supreme Court has indicated and told
told the lower courts that they want reasonable bail, a
bail that an individual can make. So the fact is
many many more prisoners are not prisoners, but people who
have been accused of crimes are now able to make
bail unless obviously they pose a danger to the community.
(23:28):
And then you now have a dangerousness hearing that in essence,
there's no amount of bail that would make sense here,
because bail is really designed to make sure you show
up for trials. So it should be an amount that
is going to be enough to make sure you show
up for trial, but not too much that you can't
make it. But the dangerousness hearing allows then us to
(23:50):
keep people in jail because not because we're worried about
them showing up for trial, we're worried about if we
release them, they in fact pose a real danger to
our community.
Speaker 4 (24:01):
You know, this just popped into my mind. I'm glad
I thought of it. I'm glad I had the opportunity
to ask you that.
Speaker 2 (24:06):
You know, sometimes the penalties for things run like this,
three years in jail or a thousand dollars fine, Why
would anyone ever go with the jail? A lot of
times the money is so low compared like for me,
the week in jail is worth ten grand. You know,
(24:28):
I don't want to go to jail at all.
Speaker 6 (24:30):
I didn't know you were so rich.
Speaker 2 (24:32):
But if I had the money, and I'm amazed that
the balance that seems so out of whack, that the
money seems so little compared to the jail.
Speaker 5 (24:43):
No, the money, I agree, but it's I don't think
it's I don't think you're reading the statute correctly. It's
three thousand. It's three years in jail and up to
one thousand dollars. I didn't read it. I just made
it up, okay, exactly. So it's not that it's an alternative.
If you have money, you get to stay out of jail.
Speaker 4 (25:02):
Really, that's what it is.
Speaker 5 (25:04):
Yeah, it doesn't seem fair Uh, the money is always,
it seems to me, not anywhere near proportionate to what
a day in jail would my point exactly, Well, that's
that is legitimate, But the fine is in addition to
whatever the sentence would be.
Speaker 4 (25:22):
Sometimes you get a choice, though, well it's.
Speaker 6 (25:24):
No, it's never going to be your choice.
Speaker 4 (25:27):
That's not at the sentencing. But oh, I see, you
never get to choose.
Speaker 5 (25:31):
No, no, you don't get to hear. I would rather
pay the money than go to jail. Basic legal The
only place that really applies is if you don't pay
your child support, then you're going to jail at some
point unless you come up with the money to.
Speaker 6 (25:46):
Purge yourself of contempt.
Speaker 5 (25:47):
But no, sometimes the court and this is actually this
does relate to the Brian Walls case. Is because he
had the outstanding criminal case from California where he was
convicted and he was ordered to do to pay restitution.
He did not pay restitution, and so that's why it
was potentially violating his probation and if he didn't pay
(26:11):
come up with the money, then he was going to
be jailed. So there are situations where what what you're
talking about is actually pretty close to those so at
the risk of doubling down on sounding stuff stupid, how
does a judge or a jerry a judge decide whether
to give you the.
Speaker 4 (26:30):
Time or the fine, the time or the fine or both.
Speaker 5 (26:34):
Well, in actually what we're saying now is time, a
fine and restitution. So the statue will normally say you
you know, it'll have a sentence of up to say
two and a half years and up to a ten
thousand dollars fine. Just say that that would be separate
(26:54):
from the order of restitution trying to make the person
that you victimized whole. So the judge tries to take
into account what the appropriate sentence would be in prison,
but also to see what would be appropriate.
Speaker 6 (27:08):
For a fine.
Speaker 5 (27:09):
A lot of times the fine is is much less
and oftentimes not even imposed because the person is not
going to be able to work while obviously they're in
prison and the court would much prefer to see restitution
made to the victims.
Speaker 6 (27:25):
Then the fine go to the state.
Speaker 2 (27:27):
And they don't generally trust people to you talk about bail,
but the an ancle bracelet like flight risk and dangerousness,
when they people do they do.
Speaker 4 (27:43):
Bail with the.
Speaker 6 (27:46):
Leg yes ankle bracelet.
Speaker 5 (27:48):
There are conditions like that, you know, no contact with
children under sixteen ankle bracelet. The only place you can
go is to work each day and then back so
that they monitor your activities.
Speaker 6 (28:02):
And yes, the quote will do that.
Speaker 5 (28:05):
Try to structure conditions of bail to make sure that
you know you're still not living life like the rest
of us want facing such serious criminal charges and that
society is protected to the extent we can protect them
under the circumstances.
Speaker 2 (28:21):
All right, So one thing we haven't covered yet. We
have one more segment to go with Michael Coin. We
haven't talked about Trooper Proctor. That's her name. You haven't
heard for a while. Maybe Trooper Proctor kind of in
the news, and we'll tell you why after this. I'm WBZ.
Speaker 1 (28:37):
It's Night Side with Ray on Boston's news radio.
Speaker 2 (28:42):
Oh, we're right, just a few more minutes with Michael Coin.
So let's make the most of them. It's been a
while since we've heard much about the Karen Reid trow jeez,
but that related things. It's kind of popping up, and
that is the story of super Proctor continues. And for
those who just moved to the area or maybe be
(29:03):
listening out of state recap the Karen Reid trial in
thirty seconds or less ye and talk about the role
of Trooper Proctor and why that is relevant today.
Speaker 5 (29:14):
Karen Reid was charged with a second degree murder vehicular
manslaughter for killing her boyfriend. Commonwealths believed that it was
as a result of her striking him with her vehicle
on a snowy night down in Canton number.
Speaker 6 (29:30):
Of years ago.
Speaker 5 (29:31):
First jury was hung and the second jury found her
not guilty except for driving under the influence, and the
case was the object of everyone's attention in this area,
and actually not just even across the nation, but even
overseas in Europe.
Speaker 6 (29:52):
It was a.
Speaker 5 (29:53):
Fascinating take on the influence of social media in our
cases today.
Speaker 2 (29:58):
Well, there are a lot of cases and a lot
of social media. Why this one any idea?
Speaker 5 (30:03):
I always believe that in this one people could see
her themselves in her in essence. They can't see themselves
going out and committing first degree murders, buying the weapon
and really plotting and planning to kill someone, but we've
probably all had a drink or two too many and
gotten behind the wheel, and I think they could see
(30:23):
themselves that they could find themselves charged with the crime
that as they see it, they didn't commit it and
certainly didn't warrant a second degree murder charge. So I
think there was in part that, and also everyone loves
a good conspiracy. There's a lot going on there, and
the distrust of the government I think is at an
all time low. So you have a lot of confluence
(30:46):
of events here that attracted people to the case in
a significant way.
Speaker 2 (30:51):
Did the state overcharge and would they have been better
off just to say she backed up in a huff
and accident to hit them, wouldn't they wouldn't that have
been a better way to go.
Speaker 5 (31:02):
Yeah, she was overcharged. She shouldn't have been a second
degree murder charge. I mean Dan Conley, the former Suffolk
County district attorney, had said when NBC ten was talking
to him, that we tried these in the district court,
which means not a felony, and we think that that's
where this case is more likely, and that is where
(31:24):
these cases are almost always tried, not superior court. Second
degree murder for a child, for something like this is
an extraordinarily difficult charge. So most of the times you
would find them in the trial court, the district court
as where she would be facing probably up to two
and a half years as a result of these charges.
Speaker 2 (31:45):
So that overcharge really costs the state, like what an
extra million and a half bucks summer.
Speaker 5 (31:51):
Well, I think the second trial alone, by the time
they're done with the expert witnesses and the council that
they hired, was well over a million dollars, So if
you want to include the first trial, they're probably north
of two million dollars on. Ultimately, what they're able to
get is a driving under the influence conviction, which, by
(32:12):
the way, is it is not entirely the district attorney's fault.
It's the failure of law enforcement on many fronts that
that this case turned to absolute uh mess garbage.
Speaker 4 (32:27):
Okay, a couple of technical points. What's the ballpark where
these technical that these technical experts get paid paid like
the people that the reconstruction of the tail light people.
Speaker 5 (32:40):
Reconstructionists get a lot of money because they have highly
advanced degrees. They know about physics and all sorts of
biomechanics as well as mathematics. You could be looking in
even in a relatively simple case that your your experts
are even in a sort of a regular auto accident
(33:02):
case that it could be north of ten thousand dollars.
In that case, the experts charged closer to four or
five hundred thousand dollars by the time they were done.
They bought purchased a vehicle to be able to do it,
I know, and then hundreds of I always spent trying
to recreate the accident. So accident reconstruction experts are expensive.
Speaker 2 (33:24):
So sometimes the expert is a solo operator and they
just get paid. Other times they hire companies, right, and
the actual witness doesn't get paid directly, They just get
paid by their company.
Speaker 5 (33:35):
Well they're an employee, so they get a regular salary.
But you know, and that's a little bit of a game.
You talked about experts too, so you know, if you're
not working, you're not going to be an employee for
very long, so you're still benefiting from having been hired.
Speaker 4 (33:52):
And one more quick thing.
Speaker 2 (33:53):
In trial, I love to try to beat the attorneys
of the punch on the object and a reason, you.
Speaker 4 (34:02):
Know, leading yes askedn't answered.
Speaker 2 (34:05):
However, the judge, at least in that trial, they don't.
They say okay, sustained or overruled. They don't give nobody
says what the objection is. And I wish, I wish
there would be a rule that made them do that
so that the people at.
Speaker 6 (34:20):
Home can be can't understand and be educated.
Speaker 5 (34:23):
Some judges don't want anything more than the objection, so
that you're not trying to influence the jury. Other judges
will allow you to give an infection and a basis.
No judge really wants what we call a speaking objection
your honor, it's here say because blah blah blah blah blah.
So they don't want the reason not in front of
the jury. If you're going to do that, you come
(34:45):
up to the sidebar, and if it's going to be
a long argument, take the jury out and then we
can argue from the table. So what the concern is
is that juries would hear what is inadmissible evidence and
information and that could affect their decision. So that's why
you don't get your education on all your objections.
Speaker 2 (35:04):
Well, now I don't feel so cheated. So will this
Walt's case be televised?
Speaker 6 (35:08):
Oh? Yes, just like that, it's going to be.
Speaker 5 (35:10):
It's going to be televised and then the expectation is
that it will be starting as early as next week
for jury selection. But once it begins trial, which will
probably be December one, it will in fact be televised
and we intend to give it the full Canton confidential
(35:31):
treatment because it's it's a very interesting case and he's
got a chance, because there are some open issues and
there's some questions about the DNA testing and all. In fact,
the DNA had to all be retested because the initial
chemist is unavailable now for trial, so in order to
(35:52):
give him his sixth Amendment confrontation clause right, you had
to retest it, so that witness will have to.
Speaker 2 (35:57):
Okay, let's wrap up with how Trooper proc what his
issue was in that case, and how that affects it's
other cases.
Speaker 4 (36:04):
We have two minutes.
Speaker 5 (36:05):
Yeah, it's a it's going to affect potentially up to
twenty cases because the information on his phone now has
been released to a number of defense attorneys under seal,
so we don't all know what it is.
Speaker 6 (36:18):
But the argument is is that.
Speaker 5 (36:20):
It very well if already we know it shows a
sexist and a prejudging of the defendants' rights, if that
carries over to racist information that's within there inappropriate activities
with respect to witnesses and defendants and the like, and
a prejudging of their cases. The defense lawyers are going
(36:42):
to make a big deal of it because all they
have to do is create a reasonable doubt and it
could affect as many twenties cases, significant serious cases, including murder.
Speaker 2 (36:53):
And some of those might get retried at great expense,
adding a further cost tos behavior.
Speaker 5 (37:02):
No doubt about it, and even not retried the first trials. Now,
the initial trials that will be coming up are significantly
more expensive because they're battling back and forth almost on
an every other week basis about how much of that
information is going to be useful at trial. So it's
multiple problems with it that it's created for the commonwealth
(37:25):
because of his unprofessional behavior.
Speaker 2 (37:27):
How much of a problem is that The passing of
the time guys for prosecutors when they try to retry.
Speaker 5 (37:32):
Yeah, the longer it takes from incident to trial, witnesses
memories fade, information gets lost. It makes it significantly harder.
Speaker 4 (37:43):
Where will this tild take place?
Speaker 5 (37:47):
It's Norfolk County again, Yes, okay, yes, I always get
confused with Cohact because it seems closer to Plymouth contes.
Speaker 4 (37:55):
It seems weird that it's in Norfolk County.
Speaker 6 (37:58):
It is.
Speaker 4 (37:58):
Wow.
Speaker 2 (38:00):
Well, all right, thank you so much. I appreciate you
coming by. And before you go, tell me what we're
at school at the Massachusetts School of Law.
Speaker 4 (38:09):
What's going on.
Speaker 5 (38:10):
We're just about done this semester. We've got a couple
more weeks left. We just got approval for a Master's
of Science and Law, which we'll be starting in January
with help from the Comings Foundation, which has supported us
in this endeavor merging law and business because we think
business people need to know more about law, and lawyers
(38:30):
need to know more about business issues.
Speaker 6 (38:32):
So it's an interesting time.
Speaker 2 (38:35):
I appreciate you coming by. Folks who have a couple
more topics come up. One of them is going to
be this kind of controversial topic. Do you think that
it is morally okay to order something online for example Amazon,
use it and return it, And you think it's okay
to use it with the intention of using it and
returning it.
Speaker 4 (38:55):
Is that morally okay? Jeff's rich after role, it's w
B's
It's Night Side with Dan Ray on WBS Boston's news radio.
Speaker 2 (00:07):
Hiks Dan Watkins for that news I'm Bradley Jay and
for Dan Ray. We're with Michael con dean of the
Massachusetts School of Law, and we're continuing with a question
from Jane in Shrewsbury. And it was complicated to me
by Dean Coin being the attorney and educated that is
seemed to grasp the situation right away. And Jane, since
(00:28):
it's been some time, can you sort of refresh us
in the simple version of what is what your question is?
Like the simplest part so even I can get it.
Speaker 3 (00:39):
Yeah, well, I was just going to refresh the last part,
but I could go through the whole thing again, but
I don't want to waste I can do.
Speaker 4 (00:47):
The last part.
Speaker 3 (00:50):
Is just if the person can be forced to forfeit
money that they inherited outside of a will, if they've
tried to commit a fraud against an estate.
Speaker 5 (01:00):
Yeah, I mean the thing is when I think when
you're talking about that they've received money outside the estate,
so that whether it's a bank account that was a
shared bank account, or some other property you usually.
Speaker 3 (01:15):
Yeah, like insurance or you know, investment account or something
like that.
Speaker 5 (01:19):
Well, they now have funds, and so those funds could
it be used to satisfy any judgment you might get
against them for the fraud that was perpetrated on you
because you've you've obviously had a significant expense that was
incurred as a result of this. But it all really
comes down to can you prove the fraud in the
(01:39):
first place, because if so, well, then you have an
argument that these cars that you have a right to
sue her to try and recover some of this money
that you've spent, and it's ill gotten gains for her,
but you'd have a judgment that you could then try
to attach those that property that she has, whether it's
insurance or an investment account or whatever.
Speaker 4 (02:00):
Interesting. What do you think your odds approving it are.
Speaker 3 (02:05):
I think the odds are really good, but you just
never know if you end up before judge.
Speaker 2 (02:11):
Right, Well, that's that sounds like it's a lot of
stress for you, Jane, Yeah.
Speaker 3 (02:16):
I mean that's the whole thing is. I think the
person just doesn't realize the imposition they're making on someone
else's life for their own, you know, wishful state or
what have you. That there's actually a consequence for somebody else.
Speaker 5 (02:29):
How do you so clearly know that it's a forged document?
Speaker 3 (02:34):
Things, Well, we paid a handwriting expert to evaluate it,
who said that none of the signatures on it are
actual original signatures, all of them are copies.
Speaker 4 (02:49):
Is how do you know that person is an expert?
Speaker 2 (02:50):
You know, when they go into court, you're gonna have
they're gonna have to say where you went to school?
Speaker 4 (02:54):
I learned this, and.
Speaker 2 (02:57):
You're tell me about where you went to school, and
how long you've been doing this, and do you have
any degrees in it? And do you belong to any
handwriting analysis organizations?
Speaker 6 (03:06):
Exactly?
Speaker 5 (03:07):
And there are people with such expertise and they charge,
they charge good money for their services, and they are
they There is an ability then to be able to
say that the document does not compare it to an
acknowledged original and therefore the indication is that it has
been forged or taken from somewhere that's improper.
Speaker 4 (03:29):
So my job, as her opponent would be when petees
this testimony.
Speaker 5 (03:32):
Well, they may have their own expert. They say, yeah,
they're just the opposite. Oh no, no, this is fine.
Speaker 4 (03:38):
So can you go shop? This is good? Can you
go shopping, you do for an expert. Hey, look, yeah,
I got this gig for you. If you can tell
me these two signatures a match. Isn't that kind of shady?
Speaker 5 (03:52):
It is shady the way the way some experts are obtained.
Speaker 6 (03:57):
But there's a reason for her.
Speaker 5 (04:00):
I don't want my own money being used against me
at trials, so I need to know before we hire
you that you can support my version of the events.
So make an assessment, take a look, and we can
talk about what I need for you to be able
to say if I'm going to hire you. But yeah,
(04:21):
that's the fact is the the the alternative is much worse.
So now I've paid you five thousand dollars or whatever,
and you end up showing up for the other side
to testify, client's going to have to.
Speaker 2 (04:33):
There's a fine line between vetting an expert and influencing
the expert.
Speaker 5 (04:38):
That's correct, that's correct, And there are times where the
expert will say, I can't support that.
Speaker 6 (04:43):
That's not the way it looks to me.
Speaker 2 (04:45):
Right now, can they opposition try to prove that you
did influence the expert to see it your way?
Speaker 6 (04:53):
Oh?
Speaker 5 (04:53):
Sure, that's cross examination. You know who who assisted you
with it, what they.
Speaker 4 (04:59):
Tell you, what they wanted, etc.
Speaker 5 (05:01):
Well, they're not going to ask that, because the lawyers
should be smart enough not to tell them what it is.
But I do want to see the exchange of information
between them because that would indicate to what extent they
may have been influenced as ice as the other side
sees it improperly. So do you think you're going to
go to court, Jane? If so, can I attend that?
I think it would be interesting.
Speaker 3 (05:25):
I have no idea like how that, how much notice
I would have or what have you. I don't It's
not like a super long drawn out type of trial,
you know, with a big audience. But there's also the
chance of settling. But then if we settle, how do
we even know that the money that the person got
outside of the estate was legitimately got as well since
(05:49):
they control the paperwork, since they live in the same
building as the person who died. Okay, it's very complicated.
Speaker 4 (05:56):
All right. I appreciate you sharing with us. I appreciate
that very much.
Speaker 2 (06:00):
Luck Wow, speaking of wills and all, this would be
a good opportunity.
Speaker 4 (06:07):
Everybody should have a will, right everybody? At what age
should you get a.
Speaker 5 (06:09):
Will, well, you actually should have one early because even
when you're twenty right, well, twenty twenty, you.
Speaker 4 (06:18):
Just put some banana and some dimes.
Speaker 5 (06:20):
But once, once you have children, once you have some assets,
it's not because it's not just your assets that you're
going to decide where they go, because otherwise the state
will decide which of your relatives will get them. But
also you can make determinations about who should be the
godian from your child in the event you die, who
should hold the child's money in the event you die,
(06:43):
and how long and what could that person pay for
the child. We used to we usually use the language health, education,
and well being. So when it's a pair of sneakers,
that's going to be covered. But if it's high school
or college, that's going to be covered as well. But
you don't want a child to have massive amounts of
(07:03):
money once they turn eighteen. That's very dangerous priced to do.
Speaker 2 (07:09):
And of course, usually when folks have a will, and
this is important, you might think that everyone knows this
and may have already done it.
Speaker 4 (07:16):
They should have.
Speaker 2 (07:17):
A will because it's a real burden on your loved one,
your survivors if you don't besides the fact they may
not get what you want. You're putting them through this
kind of red tape hell.
Speaker 5 (07:30):
And a lot of times with the will people, also
the lawyers would encourage the individuals to execute a health
care proxy. I explain what that is exactly. Health care
proxy dictates or at least says, in the event you're incapacitated,
who will make those decisions about potential treatment or the
(07:51):
lack of treatment. So it should be someone that you
obviously trust extensively, and also who shares your wishes or
at least will you know, will honor your wishes, whether
it's do not resuscitate or whatever under the circumstances.
Speaker 2 (08:08):
Here is a key, key question. Is there sort of
a conflict of interest that would should you not have
the person who is in charge of your health also
be a huge beneficiary in your will, because then you
could get a.
Speaker 4 (08:23):
Conflict of interest. I know you kind of laughing.
Speaker 6 (08:27):
I am laughing.
Speaker 4 (08:27):
On the other hand, people are not altogether nice all
the time.
Speaker 6 (08:32):
So the bounty of your faction.
Speaker 2 (08:34):
We're going to go bullet plug because I and stand
to get a million bucks.
Speaker 5 (08:38):
So the bounty of your affection, who you're going to
give your life, savings and everything you you might not trust.
Speaker 6 (08:44):
You don't trust them.
Speaker 5 (08:45):
Okay, well, shouldn't they be getting your money?
Speaker 2 (08:50):
Maybe getting into choppy territory here, But let's let's say
it's your wife. Maybe you have nobody else you want
to give it to you, But maybe you don't trust
your wife. Not every husband trusts every wife, or vice versa.
So is it wise to sometimes get it have them separate?
Speaker 5 (09:07):
Am I just I'm having problems getting my arms around this.
Speaker 6 (09:11):
I would not be giving all my money to.
Speaker 5 (09:13):
Someone I don't trust, all right, Okay, I don't know
about most people.
Speaker 2 (09:18):
I guess maybe I think the worst in all cases.
Some people figure everything is probably going to be Okay.
I figure if something bad can happen, it will, and
and that's kind of how I operate my life. So
what if this giant sum of money, giant sums of
money can make people that you do trust act act badly?
Speaker 6 (09:43):
You're right, I am right.
Speaker 5 (09:45):
We know some people will be motivated improperly and and
but but again, they don't deserve to be a healthcare proxy.
Speaker 4 (09:55):
Look out in the world and see all kinds of
bad things happen to good people.
Speaker 6 (10:00):
And no doubt about it.
Speaker 5 (10:02):
Like you're a normal guy, mostly better than normalst what's
better than my wife would disagree.
Speaker 4 (10:08):
There are a lot of subpar people out there. All right,
this is fun. Let's take a break. I don't want
to rape, but we gotta. It's WBZ.
Speaker 1 (10:19):
You're on Night Side with Dan on WBZ Boston's news radio.
Speaker 2 (10:24):
Red Jay and for Dan with Dean Michael Coin from
the Massachusetts School of my favorite school of law. We
were talking about will's and healthcare proxy and then this
power of attorney. The three generally go together, correct, right,
and so can you talk about what power of attorney
is and why that should be done when you get
your will and your healthcare proxy done.
Speaker 5 (10:44):
Power of attorney authorizes someone to act in your place
if you're unable to do so, or even if well.
You can determine whether it's only in the event of
a disability, or they can act for you in your stead.
For instance, I suppose you have an elderly parent who
can't regularly get to the bank or do other things,
so they could designate their son as a daughter. What
(11:08):
I'm picking son because it would be me that they
could designate that person as in essence they provide them
a power of attorney. It's a document that's signed by
that person and then notarize so that it's official, so
that then others could rely on that if you were
acting on behalf of your mother or someone else, that
(11:30):
you are in fact legally authorized to act. So sometimes
a lot of people do it so that it only
takes effect in the event of a disability, such that
if you think about it, well, then someone's in the
hospital or laid up for a period of time. How
does the mortgage get paid? How do the bills get
paid that are due in the house. You need to
(11:51):
have some ability then to go to the bank and
move some money around and to actually execute documents as well.
The power of attorney allows you to do that as well.
Speaker 6 (12:01):
What happens if you.
Speaker 4 (12:01):
Don't have a will?
Speaker 2 (12:02):
What is the the procedure or what happens to your.
Speaker 6 (12:06):
Stuff if you when you die?
Speaker 4 (12:08):
If you die intestate?
Speaker 5 (12:09):
Okay, Well, the law decides who your heirs will be.
If you have children, it would and know well, if
you have a spouse, uh, significant portion is going to
go to your spouse. Uh. If you have children, then
that you usually would descend Uh. This domestic partner. No,
the domestic partner is not concerned.
Speaker 4 (12:30):
That's one of the benefits of getting legally married.
Speaker 5 (12:32):
Absolutely well, or get a will, okay, right, because and
that's the problem. And if you have a domestic partner,
then you better have a healthcare proxy for that person
as well, because it won't be your partner, if you're
not married, it won't be your partner making the calls.
It'll be some blood relative and that that may not
(12:55):
be what you who you want making those determinations. And
it really does that of it becomes quite problematic for people.
Speaker 4 (13:03):
Okay, I appreciate that, folks. You really should get that done.
Speaker 2 (13:06):
And the reason this popped up is because we did
have a call from Jane and Shrewsbury who has an
issue in that area. Now, can we get back to
the wals trailer Brian Wells trial.
Speaker 4 (13:16):
Lots of ins and outs on that.
Speaker 2 (13:19):
Now, uh, how about the heart evidence there were did
you was there any weapon found?
Speaker 4 (13:28):
No?
Speaker 6 (13:28):
I don't believe there was any weapon.
Speaker 5 (13:30):
There's the there is evidence, but it's much more of
a circumstantial evidence case, so that you've got a lot
of searches that are very incriminating on the various devices
that were in the house. You have the video from
home depot, you have the trail from his ankle bracelet
(13:52):
showing him visit visiting various dumpsters, and and so there's
there's evidence to support it in obviously no one has
seen or heard from her since that night.
Speaker 2 (14:05):
Rules of evidence wise, Okay, a lot of times you're
not able to bring in past crimes into this trial.
Speaker 4 (14:12):
Correct.
Speaker 2 (14:12):
If some evidence is based on an ankle bracelet, then
that would necessitate bringing that these past crimes in. Otherwise
they wouldn't have an ankle bracelet. Would that say that
you couldn't bring in the evidence that is based on
having an ankle bracelet because that speaks to previous crimes.
Speaker 5 (14:31):
Well, first of all, you are right. Generally you aren't
allowed to use prior criminal offenses to show propensity to
commit crimes. But in this case, they both the ankle
bracelet and the earlier conviction may well be relevant. The
ankle bracelet becomes relevant because it allows us to track him,
(14:51):
and you could say he had an ankle bracelet, honor,
you could say it was tracked by way of a
GPS or a location device. We could sanitize it, so
you don't necessarily know it's an ankle bracelet. But to
the other part of the problem is, I think you're
likely to be a They are likely going to admit
(15:13):
the evidence that he was on probation for an theft
item at forgery, and that he had restitution to pay
which was well beyond his means.
Speaker 6 (15:25):
He was unemployed.
Speaker 5 (15:25):
Okay, so this goes to motive exactly, And so you
could introduce that as it goes to motive that he
was desperate to stay out of jail to be able
to raise some money somehow, and she was well insured,
so that there would gave him a motive to build
(15:46):
kill her, take the money, pay off his restitution award,
and hopefully, as he would see it, stay out of jail.
Speaker 2 (15:55):
Is it ever a defense that that plan seems so
dumb that no one in the right mind would do it?
Speaker 4 (16:02):
Would would follow.
Speaker 6 (16:04):
That, isn't the partner always?
Speaker 2 (16:06):
Well, yeah, first first suspect, first suspect, and for a reason.
But it's thing number one. He's you'd think he had
watched enough Stevie to know that. But then you got
to know there are cameras at home vapor or whatever
home goods.
Speaker 4 (16:20):
Still he went and bought this.
Speaker 6 (16:22):
He went to Home Goods too, was.
Speaker 2 (16:27):
Establishment he went to Of course, there are cameras all
over the place right there, I mean she and then
how how difficult is it to overcome the lack of
a body.
Speaker 5 (16:40):
It's not, it's it can be overcome.
Speaker 3 (16:43):
Uh.
Speaker 6 (16:43):
There's been many cases actually where it.
Speaker 5 (16:46):
Was the most most famous around this area was Robin
Benedict was killed by a professor from Tufts and they
were arguing, oh, she's not dead, she's going to show
up for trial, until he pled out to the manslaughter
and went to jail for twenty years. Professor Douglas, there
was one in Connecticut where the woman's body was disposed
(17:08):
of by way of a wood chipper. So you can't
prove death other than producing the body. It's just unusual
because again that's usually the easiest thing to prove in
the murder case, is that the person actually died.
Speaker 4 (17:23):
Okay, now tomorrow you mentioned there's a competency hearing.
Speaker 6 (17:26):
Yeah, on Brian Walsh.
Speaker 2 (17:27):
And there are different kinds of incombonants. You made the
distinction earlier. Do you remember that conversation again?
Speaker 6 (17:36):
I do?
Speaker 4 (17:37):
Can you we don't refresh your memory?
Speaker 2 (17:39):
Can you recount that for us here in the courtroom.
Speaker 5 (17:43):
Well, the competency to stand trial for Brian Walsh is
very different than Lindsey Clancy's argument that when she killed
her three children she was insane and therefore not criminally responsible.
So there's one part of this takes place at the
beginning of the trial, and that's Brian Walsh's. What the
(18:03):
argument here is, as a result of the injuries he
suffered in prison in Norfolk County, that his mental state
has taken a serious decline and therefore he may be
no longer competent to stand trial. And what that means
is that because of this mental health issue, he can't
(18:25):
appreciate the charges against him, he can't cooperate with his
lawyer in offending him. And you know, there's some many
serious questions that he's going to answer. Do I testify?
Is it to my advantage to testify? What witnesses should
we call? He needs to be fully aware of both
(18:46):
these important decisions and sufficiently knowledgeable to make them. If
his mental health is in fact in serious decline, then
the court could determine. I don't think it's likely they
could determine tomorrow that he is not competent to stand
trial at present. Trial should begin sometime next week if
in fact, he's determined to be competent. The judges kept
(19:08):
a pretty tight schedule on this case and has scheduled
it to start as early as next week, with testimony
beginning after Thanksgiving.
Speaker 2 (19:18):
I have a question we can answer after this breaking.
The question is this, but won't answer yet. Isn't it
coming upon the state to look after your well being
when you're in their custody?
Speaker 6 (19:28):
Oh? Sure, but oh you want to answer what we
get back?
Speaker 4 (19:30):
I want when we get back?
Speaker 2 (19:31):
That's the big Tea's Well, yeah, how come these things
like this happen so often?
Speaker 6 (19:36):
They?
Speaker 2 (19:37):
Or do they really happen so often? Is that just
kind of a tale? Let it happen often?
Speaker 4 (19:42):
We'll find that out after this On WBZ.
Speaker 1 (19:45):
It's Night Side with Dan Ray, Boston's news radio.
Speaker 2 (19:51):
You know, folks, if you should miss any portion of
any segment of any night side show, or maybe you
just want to hear it again, or maybe you want
to share it with someone, just google night Side on
demand and it will take you right to the podcast,
which the Rob Brooks or whoever's working the wheel there.
They put out right away, so they're available the next day.
It's quite cool. That's just Google Nightside on demand. And
(20:15):
by the way, a shout out to Dan Ray. We're
here with Michael Coin the Massachusetts School of Law talking
about Brian Walsh case. The defendant Brian Walsh, resident of Cohassett,
and the alleged victim and a Walsh. That jurisdiction, by
the way, would be Norfolk County. Now tomorrow was a
(20:36):
hearing a fitness to stand trial here and a competency here.
And this is because the defendant was stabbed in jail.
And I asked a question prior to the break doesn't
the state be isn't it incumbent upon the state not
to let that happen? And if it happens, can you
(20:57):
sue the state? And your answer was.
Speaker 5 (21:00):
The answer is that you should expect that violent things
will happen if we house a whole bunch of violent
people together. And so it comes with the territory. So
I understand the point. But no matter what, the state
can't always keep you safe in these violent, dangerous well
(21:20):
even more than just simply negligent. You'd have to show
that somehow they really disregarded the safety precautions.
Speaker 6 (21:28):
That they owe to you.
Speaker 5 (21:30):
And the fact is is that they do take an
awful lot of safety precautions. They really do try to
make sure that everyone's safe. With that said, there's an
awful lot of violent things that happen in prison among
the prisoners that are there, and it's not easy then
to recover under those circumstances.
Speaker 2 (21:52):
So that do the best they do with the tax
money where we want to give them.
Speaker 5 (21:56):
Well, and that I think that people feel in part ispriate.
We want, we would hope that it'd be safer, but
I think it's not realistic to think that prisons are safe.
Speaker 6 (22:07):
They aren't.
Speaker 5 (22:07):
There's awful lot of horrible things that take place there.
Speaker 4 (22:11):
And so and the public considers that part of the punishment.
Speaker 5 (22:14):
I don't know whether they consider it part of the punishment,
but certain I'm certain they don't want any more of
their tax dollar is spent, Okay for it.
Speaker 2 (22:24):
So here's the rub, and we discussed this as well,
and that is it's too bad that you are put
in a place with violent criminals as if you are
a violent criminal, even before you've been convicted.
Speaker 4 (22:40):
Well, it seems unfair.
Speaker 5 (22:41):
That's that's an absolutely legitimate criticism, and I think that's
why our Supreme Court has said that we favor the
individual's right to bail pending trial because of the presumption
of innocence. It really is unfair to put someone in
jail while the case is pending simply because they can't
(23:05):
make the amount of bail that the court has set.
So the court, now Supreme Court has indicated and told
told the lower courts that they want reasonable bail, a
bail that an individual can make. So the fact is
many many more prisoners are not prisoners, but people who
have been accused of crimes are now able to make
bail unless obviously they pose a danger to the community.
(23:28):
And then you now have a dangerousness hearing that in essence,
there's no amount of bail that would make sense here,
because bail is really designed to make sure you show
up for trials. So it should be an amount that
is going to be enough to make sure you show
up for trial, but not too much that you can't
make it. But the dangerousness hearing allows then us to
(23:50):
keep people in jail because not because we're worried about
them showing up for trial, we're worried about if we
release them, they in fact pose a real danger to
our community.
Speaker 4 (24:01):
You know, this just popped into my mind. I'm glad
I thought of it. I'm glad I had the opportunity
to ask you that.
Speaker 2 (24:06):
You know, sometimes the penalties for things run like this,
three years in jail or a thousand dollars fine, Why
would anyone ever go with the jail? A lot of
times the money is so low compared like for me,
the week in jail is worth ten grand. You know,
(24:28):
I don't want to go to jail at all.
Speaker 6 (24:30):
I didn't know you were so rich.
Speaker 2 (24:32):
But if I had the money, and I'm amazed that
the balance that seems so out of whack, that the
money seems so little compared to the jail.
Speaker 5 (24:43):
No, the money, I agree, but it's I don't think
it's I don't think you're reading the statute correctly. It's
three thousand. It's three years in jail and up to
one thousand dollars. I didn't read it. I just made
it up, okay, exactly. So it's not that it's an alternative.
If you have money, you get to stay out of jail.
Speaker 4 (25:02):
Really, that's what it is.
Speaker 5 (25:04):
Yeah, it doesn't seem fair Uh, the money is always,
it seems to me, not anywhere near proportionate to what
a day in jail would my point exactly, Well, that's
that is legitimate, But the fine is in addition to
whatever the sentence would be.
Speaker 4 (25:22):
Sometimes you get a choice, though, well it's.
Speaker 6 (25:24):
No, it's never going to be your choice.
Speaker 4 (25:27):
That's not at the sentencing. But oh, I see, you
never get to choose.
Speaker 5 (25:31):
No, no, you don't get to hear. I would rather
pay the money than go to jail. Basic legal The
only place that really applies is if you don't pay
your child support, then you're going to jail at some
point unless you come up with the money to.
Speaker 6 (25:46):
Purge yourself of contempt.
Speaker 5 (25:47):
But no, sometimes the court and this is actually this
does relate to the Brian Walls case. Is because he
had the outstanding criminal case from California where he was
convicted and he was ordered to do to pay restitution.
He did not pay restitution, and so that's why it
was potentially violating his probation and if he didn't pay
(26:11):
come up with the money, then he was going to
be jailed. So there are situations where what what you're
talking about is actually pretty close to those so at
the risk of doubling down on sounding stuff stupid, how
does a judge or a jerry a judge decide whether
to give you the.
Speaker 4 (26:30):
Time or the fine, the time or the fine or both.
Speaker 5 (26:34):
Well, in actually what we're saying now is time, a
fine and restitution. So the statue will normally say you
you know, it'll have a sentence of up to say
two and a half years and up to a ten
thousand dollars fine. Just say that that would be separate
(26:54):
from the order of restitution trying to make the person
that you victimized whole. So the judge tries to take
into account what the appropriate sentence would be in prison,
but also to see what would be appropriate.
Speaker 6 (27:08):
For a fine.
Speaker 5 (27:09):
A lot of times the fine is is much less
and oftentimes not even imposed because the person is not
going to be able to work while obviously they're in
prison and the court would much prefer to see restitution
made to the victims.
Speaker 6 (27:25):
Then the fine go to the state.
Speaker 2 (27:27):
And they don't generally trust people to you talk about bail,
but the an ancle bracelet like flight risk and dangerousness,
when they people do they do.
Speaker 4 (27:43):
Bail with the.
Speaker 6 (27:46):
Leg yes ankle bracelet.
Speaker 5 (27:48):
There are conditions like that, you know, no contact with
children under sixteen ankle bracelet. The only place you can
go is to work each day and then back so
that they monitor your activities.
Speaker 6 (28:02):
And yes, the quote will do that.
Speaker 5 (28:05):
Try to structure conditions of bail to make sure that
you know you're still not living life like the rest
of us want facing such serious criminal charges and that
society is protected to the extent we can protect them
under the circumstances.
Speaker 2 (28:21):
All right, So one thing we haven't covered yet. We
have one more segment to go with Michael Coin. We
haven't talked about Trooper Proctor. That's her name. You haven't
heard for a while. Maybe Trooper Proctor kind of in
the news, and we'll tell you why after this. I'm WBZ.
Speaker 1 (28:37):
It's Night Side with Ray on Boston's news radio.
Speaker 2 (28:42):
Oh, we're right, just a few more minutes with Michael Coin.
So let's make the most of them. It's been a
while since we've heard much about the Karen Reid trow jeez,
but that related things. It's kind of popping up, and
that is the story of super Proctor continues. And for
those who just moved to the area or maybe be
(29:03):
listening out of state recap the Karen Reid trial in
thirty seconds or less ye and talk about the role
of Trooper Proctor and why that is relevant today.
Speaker 5 (29:14):
Karen Reid was charged with a second degree murder vehicular
manslaughter for killing her boyfriend. Commonwealths believed that it was
as a result of her striking him with her vehicle
on a snowy night down in Canton number.
Speaker 6 (29:30):
Of years ago.
Speaker 5 (29:31):
First jury was hung and the second jury found her
not guilty except for driving under the influence, and the
case was the object of everyone's attention in this area,
and actually not just even across the nation, but even
overseas in Europe.
Speaker 6 (29:52):
It was a.
Speaker 5 (29:53):
Fascinating take on the influence of social media in our
cases today.
Speaker 2 (29:58):
Well, there are a lot of cases and a lot
of social media. Why this one any idea?
Speaker 5 (30:03):
I always believe that in this one people could see
her themselves in her in essence. They can't see themselves
going out and committing first degree murders, buying the weapon
and really plotting and planning to kill someone, but we've
probably all had a drink or two too many and
gotten behind the wheel, and I think they could see
(30:23):
themselves that they could find themselves charged with the crime
that as they see it, they didn't commit it and
certainly didn't warrant a second degree murder charge. So I
think there was in part that, and also everyone loves
a good conspiracy. There's a lot going on there, and
the distrust of the government I think is at an
all time low. So you have a lot of confluence
(30:46):
of events here that attracted people to the case in
a significant way.
Speaker 2 (30:51):
Did the state overcharge and would they have been better
off just to say she backed up in a huff
and accident to hit them, wouldn't they wouldn't that have
been a better way to go.
Speaker 5 (31:02):
Yeah, she was overcharged. She shouldn't have been a second
degree murder charge. I mean Dan Conley, the former Suffolk
County district attorney, had said when NBC ten was talking
to him, that we tried these in the district court,
which means not a felony, and we think that that's
where this case is more likely, and that is where
(31:24):
these cases are almost always tried, not superior court. Second
degree murder for a child, for something like this is
an extraordinarily difficult charge. So most of the times you
would find them in the trial court, the district court
as where she would be facing probably up to two
and a half years as a result of these charges.
Speaker 2 (31:45):
So that overcharge really costs the state, like what an
extra million and a half bucks summer.
Speaker 5 (31:51):
Well, I think the second trial alone, by the time
they're done with the expert witnesses and the council that
they hired, was well over a million dollars, So if
you want to include the first trial, they're probably north
of two million dollars on. Ultimately, what they're able to
get is a driving under the influence conviction, which, by
(32:12):
the way, is it is not entirely the district attorney's fault.
It's the failure of law enforcement on many fronts that
that this case turned to absolute uh mess garbage.
Speaker 4 (32:27):
Okay, a couple of technical points. What's the ballpark where
these technical that these technical experts get paid paid like
the people that the reconstruction of the tail light people.
Speaker 5 (32:40):
Reconstructionists get a lot of money because they have highly
advanced degrees. They know about physics and all sorts of
biomechanics as well as mathematics. You could be looking in
even in a relatively simple case that your your experts
are even in a sort of a regular auto accident
(33:02):
case that it could be north of ten thousand dollars.
In that case, the experts charged closer to four or
five hundred thousand dollars by the time they were done.
They bought purchased a vehicle to be able to do it,
I know, and then hundreds of I always spent trying
to recreate the accident. So accident reconstruction experts are expensive.
Speaker 2 (33:24):
So sometimes the expert is a solo operator and they
just get paid. Other times they hire companies, right, and
the actual witness doesn't get paid directly, They just get
paid by their company.
Speaker 5 (33:35):
Well they're an employee, so they get a regular salary.
But you know, and that's a little bit of a game.
You talked about experts too, so you know, if you're
not working, you're not going to be an employee for
very long, so you're still benefiting from having been hired.
Speaker 4 (33:52):
And one more quick thing.
Speaker 2 (33:53):
In trial, I love to try to beat the attorneys
of the punch on the object and a reason, you.
Speaker 4 (34:02):
Know, leading yes askedn't answered.
Speaker 2 (34:05):
However, the judge, at least in that trial, they don't.
They say okay, sustained or overruled. They don't give nobody
says what the objection is. And I wish, I wish
there would be a rule that made them do that
so that the people at.
Speaker 6 (34:20):
Home can be can't understand and be educated.
Speaker 5 (34:23):
Some judges don't want anything more than the objection, so
that you're not trying to influence the jury. Other judges
will allow you to give an infection and a basis.
No judge really wants what we call a speaking objection
your honor, it's here say because blah blah blah blah blah.
So they don't want the reason not in front of
the jury. If you're going to do that, you come
(34:45):
up to the sidebar, and if it's going to be
a long argument, take the jury out and then we
can argue from the table. So what the concern is
is that juries would hear what is inadmissible evidence and
information and that could affect their decision. So that's why
you don't get your education on all your objections.
Speaker 2 (35:04):
Well, now I don't feel so cheated. So will this
Walt's case be televised?
Speaker 6 (35:08):
Oh? Yes, just like that, it's going to be.
Speaker 5 (35:10):
It's going to be televised and then the expectation is
that it will be starting as early as next week
for jury selection. But once it begins trial, which will
probably be December one, it will in fact be televised
and we intend to give it the full Canton confidential
(35:31):
treatment because it's it's a very interesting case and he's
got a chance, because there are some open issues and
there's some questions about the DNA testing and all. In fact,
the DNA had to all be retested because the initial
chemist is unavailable now for trial, so in order to
(35:52):
give him his sixth Amendment confrontation clause right, you had
to retest it, so that witness will have to.
Speaker 2 (35:57):
Okay, let's wrap up with how Trooper proc what his
issue was in that case, and how that affects it's
other cases.
Speaker 4 (36:04):
We have two minutes.
Speaker 5 (36:05):
Yeah, it's a it's going to affect potentially up to
twenty cases because the information on his phone now has
been released to a number of defense attorneys under seal,
so we don't all know what it is.
Speaker 6 (36:18):
But the argument is is that.
Speaker 5 (36:20):
It very well if already we know it shows a
sexist and a prejudging of the defendants' rights, if that
carries over to racist information that's within there inappropriate activities
with respect to witnesses and defendants and the like, and
a prejudging of their cases. The defense lawyers are going
(36:42):
to make a big deal of it because all they
have to do is create a reasonable doubt and it
could affect as many twenties cases, significant serious cases, including murder.
Speaker 2 (36:53):
And some of those might get retried at great expense,
adding a further cost tos behavior.
Speaker 5 (37:02):
No doubt about it, and even not retried the first trials. Now,
the initial trials that will be coming up are significantly
more expensive because they're battling back and forth almost on
an every other week basis about how much of that
information is going to be useful at trial. So it's
multiple problems with it that it's created for the commonwealth
(37:25):
because of his unprofessional behavior.
Speaker 2 (37:27):
How much of a problem is that The passing of
the time guys for prosecutors when they try to retry.
Speaker 5 (37:32):
Yeah, the longer it takes from incident to trial, witnesses
memories fade, information gets lost. It makes it significantly harder.
Speaker 4 (37:43):
Where will this tild take place?
Speaker 5 (37:47):
It's Norfolk County again, Yes, okay, yes, I always get
confused with Cohact because it seems closer to Plymouth contes.
Speaker 4 (37:55):
It seems weird that it's in Norfolk County.
Speaker 6 (37:58):
It is.
Speaker 4 (37:58):
Wow.
Speaker 2 (38:00):
Well, all right, thank you so much. I appreciate you
coming by. And before you go, tell me what we're
at school at the Massachusetts School of Law.
Speaker 4 (38:09):
What's going on.
Speaker 5 (38:10):
We're just about done this semester. We've got a couple
more weeks left. We just got approval for a Master's
of Science and Law, which we'll be starting in January
with help from the Comings Foundation, which has supported us
in this endeavor merging law and business because we think
business people need to know more about law, and lawyers
(38:30):
need to know more about business issues.
Speaker 6 (38:32):
So it's an interesting time.
Speaker 2 (38:35):
I appreciate you coming by. Folks who have a couple
more topics come up. One of them is going to
be this kind of controversial topic. Do you think that
it is morally okay to order something online for example Amazon,
use it and return it, And you think it's okay
to use it with the intention of using it and
returning it.
Speaker 4 (38:55):
Is that morally okay? Jeff's rich after role, it's w
B's
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