In Sandra Birchmore case, questions emerge about why outside investigators weren’t brought in from the start

Read this article from bostonglobe.com: In Sandra Birchmore case, questions emerge about why outside investigators weren’t brought in from the start.

Massachusetts State Police officers should not be investigating police officers for criminal conduct. The failure of State Police to investigate Stoughton police officer Matthew Farwell for the murder of Sandra Birchmore shows how the blue wall or code of silence protects police officers who break the law, even an officer who should have been the prime suspect in a murder. In the Birchmore case, an unbiased investigator would have conducted a thorough investigation of Farwell, a married father of two with another child on the way when Ms. Birchmore, a young woman with whom he had been having a long-term affair, was found dead in her apartment. Video showed Farwell was the last person to see her alive. Review of her cellphone showed she stopped moving before he left the apartment. There was evidence Ms. Birchmore was happy to be having Farwell’s child. Farwell’s attempt to make it appear she committed suicide would have been contradicted by a proper evaluation of the scene and the medical evidence. Yet, the State Police determined Ms. Birchmore’s death did not involve foul play. The failure to properly investigate this death can only be explained by deliberate failure of the State Police and District Attorney. State Police officers should not be allowed to continue investigating cases where the suspect is a police officer.

In our public records case, Supreme Judicial Court rules that investigations of police misconduct cannot be withheld on privacy grounds

On Friday, the highest court in Massachusetts issued a decision in our firm’s public records lawsuit, confirming that the privacy exemption of the public records law does not apply to records related to investigations of law enforcement misconduct.

We represent Eric Mack, whose brother Anthony Harden was shot and killed by Fall River police in 2021. Mr. Mack requested records about the investigation of the shooting from the Bristol District Attorney. The DA should have provided these records because the 2020 police accountability bill made it clear that investigations of police misconduct cannot be withheld due to privacy concerns. Yet, the DA refused to release certain records and information, including the names of police officers and other public employees.

This decision from the SJC makes it clear that the DA must release the names of police officers involved in this fatal shooting, and they cannot rely on the privacy exemption of the public records law to conceal information.

Read more about this case from WBUR (SJC rejects bid to restrict records about police misconduct) and the Boston Globe (SJC rules police officers’ names can’t be kept secret from misconduct investigation records on privacy grounds).

Congratulations, United States District Judge Myong Joun!

Earlier this month, Howard had the pleasure of speaking at the investiture program for United States District Judge Myong Joun. Howard met Myong in 1997; Myong joined the firm as a paralegal while he was in law school. After becoming a member of the bar, Myong joined the firm as an associate attorney. Myong remained a friend when he left to start his own law firm focusing on criminal defense in addition to civil rights cases. Later Myong became a state court judge. Myong Joun will be a terrific addition to the federal bench. We are proud of his accomplishments.

Rising star Danielle Ponder went to law school in Boston. But she’s given up the courtroom for the concert stage.

Check out this Boston Globe article about our former law student: Rising star Danielle Ponder went to law school in Boston. But she’s given up the courtroom for the concert stage. Danielle was a fantastic public defender, but we’re delighted that she is succeeding in her dream of being a full-time musician. We’re looking forward to hearing her incredible voice tonight at the House of Blues.

Years of alleged abuses by Fall River cop reveal limits of internal police investigations

We recommend this article: Years of alleged abuses by Fall River cop reveal limits of internal police investigations.

The Fall River Police Department ignored multiple credible complaints about Officer Pessoa using improper force and making racist and sexist comments. Instead of disciplining Pessoa, the Department gave him the job of training new officers in the field with additional pay. Last May, after a 19-year career rife with allegations of police brutality, Pessoa was convicted and sentenced to prison for assaulting a civilian and filing false reports. The civilian obtained security camera video showing that Pessoa assaulted him. Fellow officers lied to cover up Pessoa’s conduct and ultimately lost their jobs. It took a case with surveillance video for Pessoa to be held accountable criminally. Pessoa showed he understood that recording the police is a powerful tool for accountability, since numerous civilians claimed that Pessoa threatened to break their phones if they tried to record his actions.

Our firm represented two of Pessoa’s many victims. Howard is quoted in the article, discussing Fall River’s unusual policy of destroying internal affairs investigations after a few years and other issues with their disciplinary practices.

As this article shows, the police cannot police themselves. Let's hope the POST commission changes discipline for police officers in Massachusetts.

Our friend and colleague Sarah Wunsch has passed away

We are saddened by the loss of our friend and colleague Sarah Wunsch, who died on August 17. Sarah was an excellent lawyer. She was motivated by compassion but was strategically aggressive when representing her clients. Our firm worked with Sarah on many civil rights cases, including the landmark case Glik v. Cunniffe, which established people’s right to record police officers and other public officials who are performing their duties in public.

Sarah Wunsch at a protest outside Boston Police Headquarters, October 2014

Sarah was a longtime civil rights champion who was always willing to share her experiences, opinions, and advice with other lawyers and the wider community. She often spoke at events on issues in civil rights law. She had her finger on the pulse of social injustices in Massachusetts; when she saw a concerning issue or trend, she would not hesitate to reach out to her network of advocates to ensure that the legal community could respond appropriately.  We will miss Sarah’s advice, kindness, and passion.

Read more about Sarah’s impactful legacy in this New York Times article: Sarah Wunsch, Dogged Defender of Civil Liberties, Dies at 75.

Boston Police Department agrees to improve access to public records in settlement with Lawyers for Civil Rights

Congratulations and thank you to Lawyers for Civil Rights, who negotiated a settlement with the Boston Police Department in which the department has agreed to resolve its backlog of public records requests within six months and improve their system for providing records. The Boston Police Department typically resists providing public records by incorrectly claiming that records are exempt from the public records law and by routine lengthy delays. In the past, our office has had to sue the department to force them to produce information, but no one should have to resort to a lawsuit in order to receive public records. We’re hopeful to see what changes the next six months bring in the Boston Police Department. Access to public records is an important tool for police accountability and is vital to a healthy democracy.

Read more about this settlement on the Boston Globe: Boston police agree to eliminate public records backlog within 6 months, settling lawsuit

Howard Friedman listed in The Best Lawyers in America® 2024 for Civil Rights Law

Howard was selected by his peers for inclusion in the 2024 edition of The Best Lawyers in America® for his achievements in Civil Rights Law. Howard has successfully handled civil rights cases for clients with complaints of police misconduct, police brutality, false arrest, wrongful conviction, illegal strip searches, violations of prisoners’ rights, and more.

Howard also brings cases under the Massachusetts Public Records Law when agencies such as police departments and district attorneys’ offices refuse to provide public records. Public records are a powerful tool for police accountability. For example, public access to policing data helps individuals and communities identify systemic problems in police departments and demand change.

Our friend and colleague Myong Joun was confirmed as a Massachusetts federal judge

Yesterday, the Senate confirmed Myong Joun as the newest federal judge in the US District Court in Massachusetts. Howard first met Myong in 1997, when Myong worked as a paralegal for the Law Offices of Howard Friedman while he also attended law school. After Myong became a lawyer, he worked with Howard handling police misconduct and civil rights cases. Eventually, Myong opened his own criminal defense and civil rights practice. Myong earned the respect of clients, opposing lawyers, witnesses, and judges through his honesty, calm demeanor, and dependable nature.

In 2014, Myong became a judge in Massachusetts District Court. He continued to impress people with his hard work, respect for all people, orderly courtroom, and intelligent legal analyses. Myong’s experience representing private clients in criminal defense and civil rights cases make him an excellent judge. The people of Massachusetts are lucky to now have Judge Joun on the federal bench.

Myong Joun and Howard Friedman in Washington D.C. for Judge Joun’s nomination to become a federal judge.

After a wrongful conviction and 36 years in prison, our client Fred Weichel is awarded $33 million

Fred Weichel and his legal team after the $33 million verdict (from left to right: Carmen Guhn-Knight, Monica Fuentes, Quinn Rallins, Fred Weichel, Mark Loevy-Reyes, and Howard Friedman)

Yesterday, jurors in the Suffolk Superior Court awarded our client, Fred Weichel, $33 million as compensation for the nearly 36 years he spent in prison as an innocent man. Fred will only receive $1 million because Massachusetts’s erroneous conviction statute has a cap. Still, the jurors’ verdict sends a message that Fred has waited over four decades to hear: We believe Fred Weichel is innocent.

Fred was wrongfully convicted of the murder of Robert Lamonica in Braintree in 1981. Over the course of his 2.5 week trial, Fred and his legal team showed the jury evidence of Fred’s innocence. We presented multiple alibi witnesses placing Fred miles away, in Boston, at the time of the murder. We presented evidence that the lead police investigator had tunnel vision and decided Fred was his suspect without doing a proper investigation. This police investigator then lied to the grand jury, claiming that four witnesses identified Fred as the man they saw running from the murder scene. In fact, only one witness identified Fred, but that witness was an intoxicated teenager who saw a man running fast, in the dark, for about 1-2 seconds, from 175 feet away. At trial, we demonstrated that it would have been impossible for the witness to identify the running man from that distance.

The Attorney General’s office, which represented the Commonwealth of Massachusetts in this lawsuit, tried to convince the jury that Fred was the murderer. They also argued that even if he wasn’t the murderer, he still didn’t deserve compensation because he couldn’t prove that he didn’t help the real murderer or commit some other related felony. As Fred said, “The jury didn’t buy it. I was just framed. It’s that simple.”

To learn more, check out Channel 5’s interview of Fred after his victory: https://www.wcvb.com/article/boston-fred-weichel-wrongful-conviction-lawsuit-jury-verdict-oct-18-2022/41694322

Our client and friend Lawyer Johnson has passed away

With great sadness, we share the news that our client and friend Lawyer Johnson has passed away.

Lawyer’s life embodied an important chapter in the civil rights movement. Lawyer, a black man, was wrongfully convicted of murdering a white man in 1972. Racial bias permeated Lawyer’s trials. Originally sentenced to death, Lawyer served ten years in prison before being freed. He described this experience as a “legal lynching.”

Howard was a first-year law student when he first met Lawyer during Lawyer’s second criminal trial. Eventually Howard’s former law partner, Michael Avery, won Lawyer’s freedom on a motion for a new trial. Then our firm represented Lawyer on his compensation claim under state law for his wrongful conviction.

During the ten years Lawyer spend unjustly incarcerated, he found hope in meditation, advocating for the rights of people in prison, and art. Lawyer was a skilled artist, creating detailed and deeply symbolic works.

After gaining his freedom, Lawyer committed himself to opposing the death penalty and fighting racism. He promoted the Massachusetts erroneous conviction bill that would eventually allow him to gain some compensation. He was an active member of Witness to Innocence and Massachusetts Citizens Against the Death Penalty. He shared his story to high schoolers, college students, law students, community forums, politicians, and people at anti-death-penalty events across the country.

We are grateful to Lawyer for inspiring meaningful change in our criminal legal system. We are motivated by Lawyer’s eternal optimism and belief that a better world is possible. Thank you, Lawyer Johnson.

Michelle Wu was asked about Patrick Rose’s internal affairs file. Her answer raises more questions.

Howard was quoted in this Boston Globe article: Michelle Wu was asked about Patrick Rose’s internal affairs file. Her answer raises more questions.

In 1995, an internal Boston police investigation found that officer Patrick Rose likely molested a child. The department allowed him to keep his job and continue to interact with children. He recently pleaded guilty to molesting half a dozen children over his career as a police officer and police union president.

The Globe reports that Mayor Wu has not yet viewed the full internal affairs investigation of Rose. Howard and other experts agree that there is no reason why Mayor Wu should not be able to view complete, unredacted documents. Wu has not offered an explanation, leaving a question as to whether the barrier stems from state law, the police union, or the police department.

Keeping internal affairs investigations secret is a way to hide police misconduct from public view. Keeping the results of an investigation from Mayor Wu prevents her from being able to do her job. She needs to understand what happened in the past to prevent it from happening again. Patrick Rose pleaded guilty to 21 counts of child rape and sexual assault over a 27-year period. Secrecy allowed him to continue to abuse children. The City has a strong interest in making certain the system does not continue to protect police officers who have molested children.

Howard is recognized for his work in Civil Rights Law

Howard’s peers selected him to be recognized in The Best Lawyers in America© 2022 in the field of Civil Rights Law. Howard received this award for professional excellence because he successfully handles civil rights cases for clients with complaints of police misconduct, injuries due to police brutality and excessive force, false arrests, wrongful convictions, illegal strip searches, violations of prisoners’ rights, and more.

Janey Promises Transparency, But Withholds Records Of Boston Police Officers Accused Of Misconduct

Howard is quoted in this WBUR new story: Janey Promises Transparency, But Withholds Records Of Boston Police Officers Accused Of Misconduct.

After two high-profile scandals involving leaders of the Boston Police Department—Commissioner Dennis White and former patrolman’s union president Patrick Rose—Mayor Kim Janey repeatedly promised to be more transparent about police officers who are accused of misconduct. She has not yet followed through on this promise. WBUR requested public records about officer misconduct over three months ago, and the City has not responded although the public records law requires a response within 10 business days.

The withheld police misconduct records include information about 13 officers who were found to have committed domestic violence. Howard Friedman, other civil rights attorneys, and advocates for sexual assault survivors are quoted as criticizing this secrecy. Laws designed to protect the identity of victims of sexual assault should not be used to protect the identity of police officers accused of sexual assault, particularly when a complaint is sustained against an officer. Access to these police misconduct investigations is necessary for the public to hold police officers accountable.

New evidence in death of young man in back of Massachusetts transport van

Kathy Curran at 5 Investigates reports on our case: New evidence in death of young man in back of Massachusetts transport van; Witnesses say their warnings of Sam Dunn’s dire medical condition were ignored.

This case is scheduled for trial in 2022.

4 key takeaways from Hearst CT's investigation into the secret world of police officer misconduct

Howard is quoted in this news story: 4 key takeaways from Hearst CT's investigation into the secret world of police officer misconduct.

This thorough investigation of Connecticut police officers’ misconduct found that officers typically receive light punishments, complaints of misconduct are often dismissed, and police departments are not transparent about their officers’ histories of misconduct. The investigation found that these problems exist in part because police disciplinary rules are written by the police, both through union contracts and internal rules of conduct.

To be held accountable for their misconduct, police officers need progressive discipline. As Howard says in the article, “You can’t keep giving a reprimand.” Police disciplinary records should be made public so that community groups and the public can review misconduct allegations, the findings, and the discipline imposed. The public needs to know the officer’s prior discipline as well to ensure the police internal investigation unit is working properly.

Police departments in Massachusetts share the same problems that this investigation identified in Connecticut. In both states there are instances of officers being fired for their misconduct, but then reinstated by an arbitrator. One example from Massachusetts is officer David Williams, who was twice fired by the Boston Police Department. The first time, he badly beat a fellow officer in plainclothes, thinking he was a civilian. The second time, he used a chokehold on our client and then lied about it. Both times, an arbitrator overturned the Boston Police Commissioner’s decision to fire Officer Williams. Arbitrators should have less authority to override disciplinary decisions and to determine what constitutes excessive force.

City releases scathing review of police commissioner; Dennis White files injunction to stop his removal

This article is a must-read for Boston-area residents and anyone interested in the Boston Police Department’s blue wall of silence: City releases scathing review of police commissioner; Dennis White files injunction to stop his removal.

An independent investigation into the newly appointed Boston Police Commissioner reveals that police officers who took domestic violence allegations against a fellow officer seriously in the 1990’s suffered retaliation. Most officers refused to cooperate with the investigation. The Acting Mayor says the investigation “revealed a culture of fear and silence in the Boston Police Department.” There must be a change in police culture. 

For more analysis, read 11 disturbing revelations in the investigative report on suspended BPD commissioner Dennis White.

We sued Barnstable Police for killing a man in need of medical care by restraining him facedown and applying pressure as he struggled to breathe

On April 16, 2019, two Hyannis police officers were called to Robert Miller’s home for a “mental health emergency.” Our lawsuit alleges that although Mr. Miller had not committed a crime, did not threaten the officers, and was not holding a weapon, Officer Sean Roycroft approached him from behind and put him in a “seatbelt hold.”

Officer Roycroft brought Mr. Miller to the floor so Mr. Miller was face down with his arms under his body and Officer Roycroft on top of him. Mr. Miller struggled to breathe. He tried to lift himself up. Then Officer Roycroft applied pressure to Mr. Miller’s back “to keep him from getting up.” Mr. Miller cried out for help. Officer Roycroft and Officer Spencer Jackson eventually handcuffed Mr. Miller with his hands behind his back. Then they noticed he was not breathing. His pupils were fixed and he had no pulse. Mr. Miller died on the floor of his home due to the actions of the police officers.

For more information, read this news story: Family sues Barnstable Police Department, claims excessive force in man's death.

Fixing the Boston police department’s secretive internal affairs system

Howard is quoted in this article: She hasn’t even started work yet, but Stephanie Everett already has one of the toughest jobs at Boston City Hall. As the new executive director of the city’s Office of Police Accountability and Transparency, Stephanie Everett must try to fix Boston police department’s secretive internal affairs system.

The police union is likely to resist any oversight by the City of Boston. The union protects its members without regard for the public interest. We now know that former Boston police union leader Patrick Rose was investigated for sexually abusing a child in 1995, was allowed to keep his job and continue interacting with children as a patrolman, and now faces 33 counts of child abuse. As Howard says, “It seems to me hard at this point for the union to say, as their president did recently, that there are problems in other departments but not ours.”

Cops protected by Qualified Immunity after they knowingly violated their training and the First Amendment

We recommend this article: Cops Tried To Force a Man To Delete a Video of Them Beating a Suspect. They Got Qualified Immunity. In Denver in 2014, a man filmed the police as they punched a suspect in the face 6 times and tossed another person to the ground. The police had been trained that civilians have a right to record public arrests. In direct violation of the law and their training, the officers took the man’s tablet and tried to delete the video of their misconduct.

The court granted Qualified Immunity, which shields the police from legal accountability, because there wasn’t a previous court decision in that circuit that was similar enough to the facts of this incident. Qualified Immunity hinges upon on having a previous legal case with similar facts instead of considering officers’ training, common sense, or the fact that they knowingly violated laws. This article describes the problems with this “clearly established law” test. There are twelve circuit courts; six have held this constitutional right to record the police exists. None of the circuit courts have held there is no constitutional right to record. Other courts, like the 10th Circuit here, only decide the right has not been clearly established in their circuit. As a result of the court’s failure to address the right to record, the next person arrested for recording the police in the 10th Circuit will also lose due to qualified immunity.

Qualified Immunity is supposed to protect police officers unless they know they are violating the law. This case shows that even plainly incompetent officers are shielded. In order to more effectively hold police accountable when they violate people’s rights, we must end qualified immunity.