On July 8, 2019, Fick & Marx filed a petition for a writ of certiorari asking the U.S. Supreme Court to review the case of Michelle Carter. Carter was convicted of involuntary manslaughter for the suicide of her friend, Conrad Roy III, in a case that has garnered international attention. "Michelle Carter did not cause Conrad Roy's tragic death and should not be held criminally responsible for his suicide," said Daniel Marx of Fick & Marx LLP. "This petition focuses on just two of the many flaws in the case against her that raise important federal constitutional issues for the U.S. Supreme Court to decide." "First, charging Ms. Carter based on her words alone violated the First Amendment and the decision upholding her conviction created a conflict among state supreme courts," Marx explained. "Second, her conviction violated due process because the vague common law of involuntary manslaughter fails to provide guidance to prevent arbitrary and discriminatory enforcement in morally fraught cases involving suicide." "As Justice Gorsuch ruled in a recent case, 'A vague law is no law at all,'" added Marx's partner, William Fick. "Ms. Carter's conviction should not stand." A copy of the petition is available here. Selected press coverage includes: Boston Globe: "Attorneys for Michelle Carter ask US Supreme Court to review her conviction in suicide case" Buzzfeed News: "Michelle Carter, Who Encouraged Her Boyfriend To Kill Himself, Wants The Supreme Court To Review Her Case" MASSLIVE: "Michelle Carter files appeal to Supreme Court in 'texting suicide' manslaughter case"
On April 19, 2019, U.S. District Judge Nathaniel Gorton sentenced Fick & Marx client Daniel Frisiello to a term of five years probation following his guilty plea to 19 counts of sending threatening letters, some containing hoax white powder, to public figures including Donald Trump, Jr. Federal sentencing guidelines had called for a term of 51-63 months imprisonment. "Daniel suffered anoxic brain damage at birth and is profoundly autistic, with a host of attendant symptoms and disabilities that impair his cognition, judgment, use of language, and ability to function in the world," Fick explained. "These undisputed facts do not excuse Daniel's conduct but they supply vital context to understand the genesis of his crimes and to gauge the degree of his moral culpability. They also mean that Daniel is uniquely ill-equipped to endure incarceration. A prison environment would inflict acute psychological distress and long-term damage. Daniel also would be susceptible to exploitation, violence, and isolation," Fick concluded. The Boston Globe coverage of the hearing emphasized that probation was an "unexpected outcome" from "a judge known for handing down tough sentences and following the recommendations of prosecutors." The Gloucester Daily Times recounted that "gasps could be heard from the gallery, filled to standing room only by members of Frisiello's family, their friends and even some of the professionals who have cared for or evaluated Frisiello." "Daniel and his family are relieved and grateful that the Court recognized appropriate punishment does not require imprisonment," Fick said. "Daniel deeply regrets the fear and harm he caused and will work very hard to be a better person and citizen."
Law360 quoted Daniel Marx in an article on April 17, 2019 entitled, "Tough 'Varsity Blues' Prosecution Tactics Level Playing Field." The use of "hardball" tactics is "part of a broader trend. This U.S. Attorney's Office has been doing that sort of thing in recent years — it started in the Southern and Eastern District [of New York] — to become really public and aggressive in white collar cases," Marx explained. "One thing you hear about this case from the government is their inclination to use what were traditionally the kind of law enforcement tactics used in organized crime cases or drug cases and use them in white collar cases and be proud of that development," Marx said. "But I don't think it's a salutary development to have the same tactics used against parents who may or may not have done something wrong in order to get their kids into college." Bloomberg News quoted William Fick in a April 9, 2019 story about the filing of new charges against parents who did not quickly agree to plea deals in the college admissions scandal. "Since any felony conviction is life-altering, sometimes it's best to stand and fight," said attorney William Fick, of the Boston firm Fick & Marx. "There are important issues for someone to challenge here: Is the alleged misconduct actually a federal crime? Did government agents and informants act properly?"
Retired federal judge Nancy Gertner, of counsel to Fick & Marx, published an op/ed in the Boston Globe on April 19, 2019, entitled "In AG Barr, Trump has his rhetorical hatchet man." 'Barr spun the report, first in his four-page letter last month after the report was delivered, and then in Thursday's press conference. His words mirrored what the president's allies have been saying since this investigation started," Gertner explained. "Why does Barr's spin matter? While local US attorneys have considerable autonomy, Barr can influence the pending federal criminal investigations arising out of the Mueller investigation, 10 of which were referred to in this report. If Barr is biased, essentially acting more as Trump's lawyer than the people's lawyer, those investigations could be at risk."
Retired federal judge Nancy Gertner, of counsel to Fick & Marx, published an Op/Ed in the April 8, 2019, edition of The Boston Globe entitled, "DA Rollins is on the right path in criminal justice reform." Responding to recent criticism from State Public Safety Secretary Thomas Turco, Judge Gertner points out that Rollins' reform agenda is data-driven, like similar programs in jurisdictions around the country. "Their rationale is straightforward — to assure that prosecutorial resources are allocated where they make the most sense" and to redress "racial disparities in the criminal justice system."
Daniel Marx argued the criminal appeal of Michelle Carter before the Massachusetts Supreme Judicial Court on October 4, 2018. Carter was convicted of involuntary manslaughter for the suicide of her friend, Conrad Roy III, in a case that has garnered international attention. Streaming video of the oral argument is available here. Boston Globe coverage of the argument is available here.
On August 31, 2018, federal Judge Allison Burroughs entered an order confirming a foreign arbitration award in favor Nanoelectro Research and Production Company, a Russian limited liability company associated with the Bochvar Scientific Research Institute. William Fick represented Nanoelectro in federal court proceedings together with attorney Daniel J. Rothstein of New York City.
William Fick and Daniel Marx were recognized as 2018 Super Lawyers in the categories of Criminal Defense and White Collar Criminal Defense. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations.
Retired federal judge Nancy Gertner, of counsel to Fick & Marx, published an Op/Ed in the April 18, 2018, edition of The New York Times entitled, "Smearing Robert Mueller." Judge Gertner, who presided over a successful lawsuit against the government seeking redress for the wrongful convictions of four men caused by a rogue FBI informant, explains there is no evidence that Mueller was complicit, contrary to accusations by commentators including Sean Hannity and Alan Dershowitz. In a front-page story on April 20, 2018, The Boston Globe reported on the disagreement between Judge Gertner and Dershowitz: "A Harvard face-off in the court of public opinion over Trump, Mueller."
On April 4, 2018, Fick & Marx, together with the Lawyers' Committee for Civil Rights, filed a lawsuit on behalf of Hope Coleman against the City of Boston and other defendants to hold them accountable for the fatal shooting of her only son, Terrence Coleman, a 31-year-old African-American man with a mental health disability. Read the Lawyers' Committee press release. Media coverage: Boston sued over 2016 police shooting of mentally ill man, Associated Press (April 4, 2018) Mother Whose Son Was Fatally Shot By A Boston Cop Files A Civil Rights Lawsuit, WBUR (April 4, 2018) 'If I hadn't called , he would be here', Boston Globe (April 4, 2018)
Fick & Marx Associate Attorney Rebecca Chapman published an Op/Ed in the April 4, 2018, edition of The New York Times entitled, "Sorry, Hollywood. Inclusion Riders Won't Save You."
Granting an Application for Direct Appellate Review filed by Fick & Marx, the Supreme Judicial Court of Massachusetts has agreed to hear the appeal of Michelle Carter, who was convicted of involuntary manslaughter for the suicide of her friend, Conrad Roy III, in a case that has garnered international attention. Press coverage: Mass. high court to take up Michell Carter's appeal in suicide texting case, Boston Globe (March 15, 2018) SJC to delve into Michelle Carter texting case, Boston Herald (March 15, 2018) Teen convicted in suicide-text case gets help from Boston bomber lawyer, New York Post (March 5, 2018) Michelle Carter eyes SJC appeal with new all-star defense team, Boston Herald (March 2, 2018) Michelle Carter hires big legal guns in manslaughter appeal to SJC, The Sun Chronicle, March 2, 2018
Fick & Marx, along with Sasson Turnbull Ryan & Hoose, has filed a federal class action lawsuit against the Commonwealth of Massachusetts and various state and local officials seeking return of fees, fines, and forfeitures paid by individuals who were wrongfully convicted of drug offenses in Massachusetts due to the misconduct of former state chemist Annie Dookhan. Press coverage: Annie Dookhan drug defendants ask state to reimburse their court fees and fines; Mass. could owe millions, MassLive (March 6, 2018) Dookhan defendants sue for return of probation fees, Boston Globe (February 24, 2018)
William Fick has secured the pretrial release of a young man accused of sending threatening letters to Donald Trump Jr. and others. Press coverage: Trump Jr. threat suspect released, The Salem News (March 12, 2018) Massachusetts man accused of sending threats to Donald Trump Jr. sent letters to judge in Boston Marathon bombing case, authorities say, MassLive (March 12, 2018)
Fick & Marx LLP is delighted to welcome Rebecca N. Chapman as the firm's first associate. A graduate of Harvard Law School, Rebecca joins the firm after several years as a Trial Attorney at the Bronx Defenders in New York. "Rebecca is bright, committed to excellence, and passionate about the work we do," said Hon. Nancy Gertner (ret.). "Of all the students I have taught at Harvard, she was one of the best." Read Rebecca's full biography here.
In a blog post, the national ACLU highlighted the role of Fick & Marx LLP in helping to overturn 30,000 drug cases, "a national model for remedying wrongful convictions." As a result, "thousands of people across Massachusetts may have a better chance to rebuild their lives and free themselves of the crippling collateral consequences of tainted drug convictions."
William Fick was quoted in a Vice News article, "Mueller's indictment of Manafort was written to terrify K Street." Fick said, "The most interesting thing about it is the level of detail it contains. . . . They don't have to do that. And the fact that they are doing that could be a way to send a message to the public and others within the scope of the investigation."
William Fick published an article in the Fall 2017 Boston Bar Journal, the peer-reviewed publication of the Boston Bar Association, entitled "Unanswered Questions About Public Corruption Prosecutions After O'Brien." Fick explains that while "the Court found that the government 'overstepped its bounds in using federal criminal statutes to police the hiring practices' of state officials, the Court actually decided the case on narrow grounds and left unanswered a key looming question in public corruption investigations: can federal authorities prosecute allegedly dishonest but purely 'political' quid pro quo exchanges, where there is no allegation of corrupt personal gain?"
Fick & Marx, together with ACLU of Massachusetts and Committee for Public Counsel Services, filed a petition urging the Massachusetts Supreme Judicial Court to dismiss every single case tainted by former state chemist Sonja Farak because of prosecutorial misconduct by the Massachusetts Attorney General's Office, which tried to bury this latest drug lab scandal by misleading defendants, their counsel, and the courts. "Amazingly, the Amherst drug lab scandal involving Sonja Farak is even worse than the Hinton Drug Lab Scandal involving Annie Dookhan, because this latest forensic crisis in Massachusetts is the result of both egregious misconduct in the drug lab itself and also prosecutorial misconduct by the Attorney General's Office of unprecedented scope and consequence," said Daniel Marx. Download the ACLU Press Release.
On August 31, 2017, the Suffolk County District Attorney's Office announced its decision not to pursue any criminal charges against the Boston Police officers who fatally shot Terrence Coleman, a young Black man who suffered from mental illness, outside his home in the South End, on October 30, 2016. "Unfortunately, the decision by District Attorney Dan Conley continues a disturbing national pattern of prosecutors failing to hold police officers accountable for fatal shootings of Black men," said Sophia Hall, a Staff Attorney at the Lawyers' Committee for Civil Rights and Economic Justice ("LCCR"), who along with Fick & Marx LLP represents Terrence Coleman's mother, Hope Coleman. "The investigation that led to that decision was not truly 'independent,' because the DA's office works closely with Boston Police every day," added Hall. "All I want is justice for my son," said Ms. Coleman, who on the night of her son's fatal shooting had called for an ambulance to take him to the hospital for medical attention. But, tragically, he was shot and killed by Boston Police officers who responded to the family home with EMS personnel. "Terrence Coleman did not need to die, and his death confirms the urgent need for meaningful reform in how police departments train officers to deal with mental health issues," said Oren Sellstrom, Litigation Director at LCCR. Because every fatal police shooting demands legal accountability, LCCR and Fick & Marx will review the District Attorney's investigative file concerning Mr. Coleman's death. "No mother should have to see her child shot by the police, and we will assist Ms. Coleman in pursuing justice for her son, herself, and the community," said Attorney Daniel Marx. "The DA's decision not to pursue criminal charges does not mean that the police use of deadly force was appropriate or necessary. The ultimate decision about whether the police should be held legally responsible for Terrence Coleman's death can only be made following a truly independent assessment of all the facts — not a confidential investigation by prosecutors, but a public trial by a jury of Boston citizens," Attorney William Fick concluded. Download the LCCR press statement.
Nancy Gertner was interviewed for an article on August 3, 2017 in Massachusetts Lawyers Weekly, "Advisory Committee on federal judicial nominations set to go back to work." Gertner, who chairs the reconvened Committee, expressed optimism that their recommendations will be heeded by the new Administration. Gertner emphasized that the Committee is interested not just in diversity of gender, ethnicity, and political background, but also diversity of experience. "We really want people of all perspectives and all backgrounds to apply," she said. The Committee submits names to Senators Warren and Markey, who then conduct interviews of their own and make formal recommendations to the President.
On July 21, 2017, the United States Court of Appeals for the First Circuit issued a decision in United States v. Windley, holding that a prior Massachusetts state conviction for Assault & Battery with a Dangerous Weapon does not qualify as a "violent felony" that can trigger a 15-year minimum mandatory sentence under the federal Armed Career Criminal Act. Daniel Marx represented the defendant on appeal.
Retired federal judge Nancy Gertner, of counsel to Fick & Marx, together with former federal prosecutor Chiraag Bains, wrote an "analysis" piece in the Washington Post on May 15, 2017: "Mandatory minimum sentences are cruel and ineffective. Sessions wants them back."
William Fick gave a lengthy interview for the weekly Commonwealth Magazine "Codcast" on the recent federal appeals court decision overturning the state Probation Department "corruption" convictions. "I hope it's a lesson to federal prosecuting authorities that they cannot be the arbiters of good government," said Fick. "Number 2, it's a lesson that criminal laws are extremely blunt instruments to try to effect policy change and, when deployed, can often have devastating and really unfair impacts on people who ultimately committed no crime, as was the case here." Fick said patronage is a form of politics. It's not a crime, he said, noting that no evidence was presented at trial suggesting that anyone personally profited. "The way hiring was done in the Probation Department was not new and was not unique," he said. Fick has a provocative term for what happened, saying the US attorney's office became "weaponized" in the Trial Court's struggle for hiring control at Probation. Audio of the interview is available here.
William Fick, a member of the trial team that defended former Massachusetts Probation Commissioner Jack O'Brien against corruption charges, commented in the Boston Globe on the decision of the First Circuit Court of Appeals denying a prosecution motion to reconsider its decision reversing the defendants' convictions and ordering judgments of acquittal. "Jack O'Brien and the other defendants were dedicated public servants who committed no crime," said Fick. "They can never reclaim the years lost to this legal battle, but now they can move on." He also criticized prosecutors for pursuing a shallow case for so long, even after the appeals court initially struck it down in December. "By denying the government's request for rehearing . . . the First Circuit yet again slapped down an over-reaching prosecution that can't seem to accept 'no' for an answer," he said.
A Wall Street Journal editorial on April 20, 2017, urges the United States Court of Appeals for the Second Circuit to affirm a lower court ruling denying "qualified immunity" to former U.S. Attorney Preet Bharara and other defendants in a lawsuit brought by hedge fund manager David Ganek. The suit alleges that law enforcement violated Ganek's civil and constitutional rights, destroying his business and reputation, when agents obtained and executed a search warrant for his hedge fund, Level Global, that was based on lies. "[T]here's a pattern of troubling behavior and a problematic culture inside Mr. Bharara's old shop," the Journal's Editorial Board wrote. "Not least because there are so few consequences for prosecutorial abuse, the Second Circuit should allow Mr. Ganek's suit to head to trial." Nancy Gertner, of counsel to Fick & Marx LLP, argued the case in the Second Circuit. Audio of the oral argument is available here.
More than 20,000 drug cases tainted by former state chemist Annie Dookhan are being set for dismissal on April 19, 2017, marking a victory for justice after years of litigation from the ACLU of Massachusetts, the national ACLU, the state public defender's office, and law firm Fick & Marx LLP. "Although the so-called 'Dookhan defendants' completed their lengthy prison sentences, they continued to suffer the harsh collateral consequences of their tainted convictions, which limited employment prospects, diminished housing opportunities and threatened lawful immigration status. Now, a majority of these wrongfully convicted individuals will have the opportunity to clear their records and move on with their lives," said Daniel Marx, who represented the petitioners as pro bono counsel. "Doing right by the victims of the drug lab scandal is critical to restoring the integrity of the criminal justice system." See the ACLU press release. More coverage from the Boston Globe, Boston Herald, Huffington Post, Pro Publica, WBUR, Washington Post, and the New York Times.
William Fick successfully challenged a decision denying a Background Check Clearance Certificate to an Uber driver based on criminal convictions. After an administrative appeal hearing, the Transportation Network Company Division of the Massachusetts Department of Public Utilities reversed its initial decision and cleared our client to continue driving for Uber despite his criminal record. In 2016, the Massachusetts legislature passed a law requiring drivers for services such as Uber and Lyft to undergo background checks and listing certain types of criminal convictions that would disqualify them. "The state agency responsible for implementing the law not only made errors applying the law to our client's specific circumstances, but it also has established criteria that sweep far more broadly than the legislature authorized," Fick said. "Any current or aspiring driver denied background check clearance should consider consulting a lawyer to determine whether the decision may be subject to administrative appeal or other legal challenge."
The Boston Globe quoted William Fick in a January 29, 2017 article,"How the challenge to Trump's immigration ban will play out in court." Fick explained that the decision in Boston was broader than others across the country in that it not only halted deportations from Logan Airport, but also prohibited the detention of immigrants who otherwise would have been allowed into the country. Also, it orders Customs and Border Protection agents to notify airlines of the court decision."These facets make this order unique among others across the country," he said."It delivers more in providing relief to the people who have been subjected to the order."
On January 18, 2017, The Massachusetts Supreme Judicial Court called on district attorneys to dismiss thousands of cases that were tainted by the misconduct of chemist Annie Dookhan at the Hinton state drug lab. The ruling came in a lawsuit, Bridgeman v. District Attorney, on behalf of three named petitioners and all other "Dookhan defendants," brought by the American Civil Liberties Union of Massachusetts, the national ACLU, the state public defender agency CPCS, and Fick & Marx LLP. "This was a major victory for Dookhan defendants and for justice and fairness in the Commonwealth," said Dan Marx, quoted in a Boston Herald article. Read the ACLU Press Release and the SJC Opinion.
William Fick, a member of the trial team that defended former Massachusetts Probation Commissioner Jack O'Brien against corruption charges, commented in the Boston Globe on the decision of the First Circuit Court of Appeals reversing the defendants' convictions and ordering judgments of acquittal. "I hope it sends a message that the federal prosecuting authorities ought to think twice about really destroying people's personal, professional lives based on legal theories that are on the outer fringes of what the courts and the laws recognize," said William Fick, one of the attorneys for O'Brien. Fick said the appeals court decision corrected an unjust conviction, but that O'Brien and his codefendants had already suffered from the publicity of the decision to bring an indictment in the first place. "Not only the three defendants, but countless people in the State House had their lives turned upside down for years, which is incredibly destructive to the day-to-day operations of state government, which is important and ought to be respected," Fick added.
Retired federal judge Nancy Gertner, of counsel to Fick & Marx LLP, spoke with WBUR's Morning Edition about the overturned Probation Department corruption convictions. "There was something intrinsically wrong about the theory" of prosecution, said Gertner. "There was no personal benefit here. There's not the standard quid pro quo that you would see in a standard bribery situation." Gertner added, "What's going on here, which is very troubling, is the use of the criminal law, and in particular the federal criminal law, to deal with things that are not appropriate for the criminal law. You shouldn't be taking ordinary politics . . . and use the criminal law to police it."
Daniel Marx and William Fick co-authored an article on the new sentencing guidelines for fraud offenses that was published as the cover story in the September/October 2016 issue of The Champion, the journal of the National Association of Criminal Defense Lawyers. "From Bean Counting to Soul Searching: The Amended Definition of ‘Intended Loss’ in the Fraud Guidelines and the New Opportunities for White Collar Defendants to Litigate Loss."
Nancy Gertner, of counsel to Fick and Marx LLP, spoke with WBUR's Morning Edition on October 14, 2016 about her work with the legal team seeking "compassionate release" for former Massachusetts House Speaker Sal DiMasi.
Law360 published an article covering the launch of Fick & Marx LLP on September 30, 2016, "Foley Hoag Alums, Retired Judge Open Boston Trial Boutique." Massachusetts Lawyers Weekly published an article on September 28, 2016, "Gertner Joins Pair in Launching Firm." In addition, a copy of our press release is available here. A publicity photo is available here.
On behalf of 3 petitioners who were wrongfully convicted of state drug charges, the ACLU of Massachusetts, the national ACLU, the state public defender agency, and Daniel Marx of Fick & Marx LLP urged the Supreme Judicial Court on September 23 to vacate 24,000 unresolved cases in which people were convicted based on tainted evidence arising from the misconduct of former state drug lab chemist Annie Dookhan. Dookhan was allowed to falsify and fabricate evidence for years, causing tens of thousands of people to be convicted of drug offenses based on tainted evidence and fraud. The ACLU press release is available here. The September 23, 2016 brief filed in the SJC is available here. An article in the American Bar Association Journal is available here.
Retired federal judge Nancy Gertner, of counsel to Fick & Marx LLP, spoke with WBUR's Radio Boston program on September 14, 2016, about jury selection in the death penalty retrial of Gary Sampson. An audio recording of the interview is available here.
Attorney Daniel Marx, founding partner of Fick & Marx LLP, co-authored an article in the August 2016 issue of White Collar Crime entitled, "Where's the Steak Dinner? Why the Supreme Court Needs to Clarify the Criminal Law of Insider Trading." A copy of the article is available here.
Attorney William Fick, founding partner of Fick & Marx LLP, was quoted in a Boston Globe article on February 24, 2016, concerning the use of covert cell phone trackers – devices that have raised civil liberties questions nationwide. In the article, Fick noted that nondisclosure agreements designed to conceal use of the trackers by law enforcement, "foster mischief" and "create perverse incentives" for law enforcement and prosecutors to omit or misrepresent how they obtained information. The full story is available here.