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Man Charged with Possession of Hoax Explosive at Marathon Finish Line

the-big-zipper-349829-mA number of different news outlets have reported that a 25 year-old man was stopped near the Boston Marathon finish line due to his suspicious behavior on April 15th, 2014, the one year anniversary of the Boston Marathon bombings.  According to the various news reports, passers-by told a police officer that they saw the man acting strangely, including walking barefoot down the middle of a street, veiled in black, in the rain.  The man was carrying a backpack and was also reportedly yelling “Boston Strong.”  When officers approached him and asked him what was in the backpack, he stated that he had a “non-explosive rice cooker,” which is the same type of device used to execute last year’s bombings.  Police determined that the bag’s contents were not explosive – in fact the rice cooker contained confetti.  In an abundance of caution, however, the police chose to destroy the backpack.  A second “suspicious” backpack also was found in the area.  Although reports originally indicated that both backpacks were left by the man, officers had actually determined that the second bag had been left behind by a reporter and was not dangerous.  It too was destroyed.

As the story broke, it came to light that the man has a lengthy history of bi-polar disorder and was off his medication.  He was reportedly on his way to an art performance of some kind when he was observed by the officers and stopped.  As a result of his conduct, the man was arraigned in the Boston Municipal Municipal Court on charges of threats, possession of a hoax explosive device, disturbing the peace, disturbing a public assembly, and disorderly conduct.

While everyone’s nerves are understandably on edge as the 2014 Marathon approaches, and the man’s conduct was legitimately concerning, it’s questionable as to whether the Commonwealth will be able to make the criminal charges against him stick.  One issue is whether the man was too mentally ill to be able to appreciate the nature of his conduct and therefore whether he could even form the requisite criminal intent.  As a result of this question, he could raise a lack of criminal responsibility defense.  Although such a defense is historically difficult to present, given the man’s history of mental illness and his undeniably odd conduct, it’s possible that he may succeed in doing so.

Additionally, there is a question as to whether the man’s conduct is protected under the First Amendment, which prohibits the passage of any law that abridges the freedom of speech.  Freedom of speech includes the right to communicate information, ideas, or opinions through speech itself, or through other mediums.  Such “speech” may include freedom of expression through art.  Whether the man’s conduct is protected activity under the first amendment is an additional issue that may be raised as a potential defense to the criminal charges.

Finally, there is a question as to whether the conduct actually satisfies the criminal elements of the offenses.  For example, there is a question as to whether it was the conduct that caused any sort of disturbance – which is required to prove disturbing the peace, disturbing a public assembly, and disorderly conduct – or whether it was the police officers’ reactions to him that actually caused the public alarm.  Further, to establish that the man was in possession of a hoax explosive device under G. L. c. 266, § 102, the Commonwealth would have to prove that he had the intent to cause anxiety, unrest, or fear to a person or group.  Again, given the fact that the man did not tell anyone about the rice cooker in his backpack until the police specifically asked what was inside, there is a question as to whether he could be found guilty of that charge.

Regardless of how the criminal case proceeds, the man needs a criminal defense attorney who is sensitive to the hurdles that people with mental illness face when they become involved in the criminal justice system, as well as someone who will stand up and protect his rights, even if the public may find his conduct disturbing or distasteful.  If you or a loved one is in the difficult position of battling mental illness within the court system, you, like the man in this case, will need an attorney who will stand with you.  Attorney Daniel Cappetta is ready, willing, and able to protect his clients’ rights, no matter what challenges or charges they might be facing.  Call him for a free consultation.

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