STATE REPRESENTATIVE
PAUL C. CASEY

A View from the Hill

FOR IMMEDIATE RELEASE: June 28, 1999
CONTACT: Tom Nolan (617) 722-2240

IT'S TIME TO SEND THE MESSAGE THAT CRIME REALLY DOESN'T "PAY"

Massachusetts will never forget the murder trial that took place a little over a year and a half ago involving a British au pair and an eight-month old child. It was a story that gained not only national attention, but wide international coverage as well. In 1997, little Matthew Eappen died at the hands of his au pair, Louise Woodward. As most of us may recall, the "British Nanny" was initially convicted of second-degree murder by a jury of her peers, but with the world watching closely, received a reduced sentence of manslaughter from the court. This devastating turn of events for the Eappen family made headlines throughout the country as the "Nanny" headed back to England where the cameras and reporters were anxiously awaiting her arrival.

The Eappen family's suffering and anguish from losing their infant son was exacerbated by the fact that Louise had become a folk hero of sorts for her conduct and could possibly profit handsomely from this tragedy. The story of the death of their innocent child and her involvement in that tragedy had the potential to make Louise a wealthy celebrity. In order to prevent Woodward from benefiting from her notoriety, as well as trivializing their son's death, the Eappens filed a civil suit for wrongful death. Fortunately, as a result of the lawsuit, Woodward agreed to donate to charity any money she might receive from selling her story.

While the Eappens went to court to take preventative measures against Woodward, we on the Hill must guarantee that in the future, convicts will be prohibited from making money for recounting their crimes to the media. To achieve this goal, I filed a bill this session that seeks to prevent convicted offenders, like Woodward, from reaping economic gain for the publication of their criminal conduct.

H.3677 An Act Relative to the Forfeiture of Profits From Crime, would prevent convicted defendants from entering lucrative contracts or engaging in profit generating activities relating to the publication of facts or circumstances surrounding the crimes for which they were convicted. This bill essentially codifies the concepts that were articulated in a 1995 Supreme Judicial Court decision upholding a court's authority to prohibit convicted defendants from profiting from the publication of facts underlying the crimes committed. That case involved Kathleen Powers, the notorious early 1970's "cop killer". As a condition of her sentence, the trial court expressly prohibited her from selling her story for economic gain. Although Powers claimed this was an infringement of her First Amendment rights, the SJC disagreed. Since convicted persons do not enjoy the same protections as free individuals, the high Court found these post-conviction restrictions permissible.

To be sure, the notion of anti-profit laws is not new to the Commonwealth. In fact, up until 1993, Massachusetts had such laws on its books. Yet, following a U.S. Supreme Court decision striking down a similar New York statute, those laws were repealed. Since then, there has been much debate as to how to work around that decision to thwart criminals from selling their stories. H.3677 achieves that goal in a constitutionally permissible manner.

Historically, anti-profit initiatives have been challenged on First Amendment grounds. However, both federal and state case law, including the Powers decision, clarifies that convicted persons relinquish some of their constitutional protections-- including First Amendment rights. H.3677 is predicated upon this reasoning and, therefore, does not offend constitutional principles.

In short, the legislation would permit District Attorneys to request that a defendant be prohibited from selling their story as a condition of probation, and to seek the forfeiture of any money received by selling their story prior to conviction. Any forfeited money would be deposited into the Victim's Compensation Fund and made available to satisfy any judgment rendered in favor of the victims of the crimes for which the defendant was convicted.

We are shocked by the grotesque acts of notorious convicts such as Eddie O'Brien, John Secari, Charles Jaynes and Edward Donahue, to name only a few. That such persons could stand to receive windfalls from their atrocious acts is an insult to the lives and memories of the victims destroyed by their crimes. By reinstating legislation to prevent criminals from gaining financially for their heinous crimes, we will send the clear message that crime does not pay.

I am fully aware that this legislation will never erase the pain endured by the Eappen family and other victims, nor will it undo the tragedies that have occurred. However, it may provide some comfort to those families who will be guaranteed that the memories of their child, relative or friend will not be marred by the greed of a convict and the commercialization of their traumatizing experiences. That peace of mind is a promise that we owe not only to our victims and their families, but to our own consciences.