Petition for Writ of Certiorari — Power v. Massachusetts

mE NT a IN ee. i A ts a

©2777 AUG 1 6199

No. - 95 J

In the

Supreme Court of the United States

OcTOBER TERM, 1995

KATHERINE ANN POWER,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

PETITION FOR A WRIT OF CERTIORARI

Joseru L. Kocruses*

Mark W. BATTEN

PETER J. MANCuSI

MATTHEW D. SCHNALL

BINGHAM, Dana & GouLp

150 Federal Street

Boston, MA 02110

(617) 951-8000

SARAH R. WuNSCH

AMERICAN Civit LiserTies UNION

OF MASSACHUSETTS

99 Chauncy Street, Suite 310

Boston, MA 02111

(617) 482-3170

“Counsel of Record

Blanchard Press, Inc. , Boston, Mass Law Printers (617) 426-6690

QUESTIONS PRESENTED

Whether a state court -.ay impose admittedly cont»at-

based restrictions on the speech of a probationer upon no more

than a general finding that such a restraint “reinforces the

moral foundations of our society’?

Whether a content-based restraint on speech must be

strictly scrutinized by the courts? Alternatively, whether the

court below erred by not reviewing a content-based restriction

under even the intermediate level of scrutiny for content

neutral court orders specified in Madsen v. Women’s Health

Center, Inc., 114 S.Ct. 2516 (1994)?

Whether a probation condition which forbids a probationer

from “directly or indirectly engaging in any profit or benefit

generating activity relating to the publication of facts or cir-

cumstances pertaining to [her] involvement in the criminal

acts for which [she was] convicted” is so vague as to impose

a prior restraintr

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

STATEMENT OF THE CASE.

REASONS FOR GRANTING THE WRIT

1. The Ruling Conflicts With Other Lower Court

Precedent i |

2. The Case Raises Important and Broadly

Applicable Issues That Are Likely To Recur

a. The Ruling Permits Content-Based

Restrictions Without Strict Review

b. The Ruling Too Broadly Exempts

Those Convicted of Crime From The

Protections Of The First Amendment

3. The Ruling Was Erroneous

CONCLUSION

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TABLE OF AUTHORITIES

Cases

Page

Alexander v. United States, ___ U.S. ___, 113 S. Ct.

06 an Se eee ll

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

1 NG nO eee 8

Commonwealth v. Power, 420 Mass. 410, 650 N.E.2d

OF ERE spans ccc at cha hendtt ee ]

Edenfield v. Fane, ___. U.S. ___, 113 S. Ct. 1792

‘4: Se Pe et rn ne tite A its A nae 8

Edwards v. State, 173 Ga. App. 589, 327 S.E.2d 559

by Re er re smn Mievnhels My: ghaer CCS Se but pat 6

First National Bank of Boston v. Bellotti, 435 U.S.

yi, Pe rere ROTR MARE =n? RNG AR EA Wig i, . @9

Griffin v. Wisconsin, 483 U.S. 868 (1987)........... )

In re Mannino, 14 Cal. App. 3d 953, 92 Cal. Rptr.

Ed aap A Eni 7 Syn USP ven ae a NNN 5

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968)..... 5

Leathers v. Medlock, 499 U.S. 439 (1991)............ 8

Madsen v. Women’s Health Center, Inc., 114 S. Ct.

ON ERED eer cose ek ee ee eee 1, 8

Markley v. State, 507 So.2d 1043 (Ala. Crim. App.

BED soins oy ko a ee eee . §

Near v. Minnesota ex rel. Olsen, 283 U.S. 697 (1931). 8

Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976)... 8

Regan v. Time, Inc., 468 U.S. 641 (1984) ........... 8

Richardson v. Ramirez, 418 U.S. 24 (1974) ......... 10

Simon & Schuster, Inc. v. New York Crime Victims

Board, 502 U.S. 105 (1991)......... 4, 6, 7, 8, 9, 11

Sobell v. Reed, 327 F. Supp. 1294 (S.D.N.Y. 1971)... 5

State v. Miller, 175 Wisc. 2d 204, 499 N.W.2d 215

4 RE arr arent crab ah Avt, + 5 WA: hb Rr ih . 6

Turner v. Safley, 482 U.S. 78 (1987) ............... 10

Turner Broadcasting System, Inc. v. FCC, ___ U.S.

me ee er ee 8

United States v. Consuelo-Gonzalez, 521 F.2d 259

(9th Cir. 1975) (en banc)

United States v. Lowe, 654 F.2d 562 (9th Cir. 1981)...

United States v. Peete, 919 F.2d 1168 (6th Cir. 1990)

United States v. Smith, 972 F.2d 960 (8th Cir. 1992)

United States v. Terrigno, 838 F.2d 371 (9th Cir.

ee ete BER a Mantee get or ae seve te kee

United States v. Tolla, 781 F.2d 29 (2d Cir. 1986)

United States v. Tonry, 605 F.2d 144 (5th Cir. 1979) .

United States v. Waxman, 638 F. Supp. 1245 (E.D.

Pa. 1986).... SF SRS Dios en eR MASE nr Bala

United States v. Williams, 787 F.2d 1182 (7th Cir.

1986)

Statutes

28 U.S.C. § 1257

» |

Other

Note, Does Crime Pay — Can Probation Stop

Katherine Ann Power From Selling Her Story?, 35

B.C.L. Rev. 1203 (1994) .. se

L. Tribe, American Constitutional Law § 12-2 (2d

ed. 1988)

10

In the

Supreme Court of the United States

OctTosBer TERM, 1995

No.

KATHERINE ANN POWER,

PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS

Katherine Ann Power respectfully petitions for a writ of

certiorari to review the judgment of the Supreme Judicial Court

of Massachusetts in this case.

OPINIONS BELOW

The opinion of the Supreme Judicial Court of Massachusetts

(App., infra, la-12a) is reported at 420 Mass. 410, 650 N.E.2d

87. The oral sentencing order of the Superior Court and its order

denying Power’s motion for reconsideration (App., infra, 16a)

are unreported.

JURISDICTION

The Supreme Judicial Court of Massachusetts entered its

judgment on May 18, 1995. The jurisdiction of this Court is

invoked under 28 U.S.C. §1257.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof; or abridging freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition

the government for a redress of grievances.”

STATEMENT OF THE CASE

On September 15, 1993, Katherine Ann Power ended 23

years of life as a fugitive by surrendering to authorities. Pur-

suant to a plea agreement, Power pleaded guilty in state court

to one count of manslaughter and two counts of armed

robbery. !

On October 6, 1993, the court sentenced Power to concur-

rent 8-12 year prison terms on the manslaughter and armed

robbery charges, which was consistent with the District

Attorney’s recommendation. The court then announced that

it would “step aside” from the government’s recommendation

“in one major area.” The court imposed twenty years’ proba-

tion, to run concurrently with the prison sentences, and added

a special condition of probation:

I enjoin you and I prohibit you from any activity, of any

nature, which can generate profit to you for the crimes

you committed, and violation of any condition of that

probation will subject you to surrender and up to life in

prison.

' Power's plea was the result of her participation in a bank robbery. In

September, 1970, Power, then a college student, was engaged in activities

protesting the Vietnam War. That campaign took a tragic turn when she

and several others decided to rob a bank. After the robbery was complete

and all of the participants except William Gilday had fled, Boston Police

Officer Walter Schroeder arrived on the scene in response to an alarm.

Gilday fatally shot Officer Schroeder. During both the robbery and

shooting, Power was in a “switch” car about one half mile from the scene.

3

The court gave Power an opportunity to withdraw her plea.

Power, whose consistent position has been that she seeks no

personal financial gain, did not withdraw her plea.

After the hearing, Power was returned to a holding cell,

where, for the first time, she was given typewritten Special

Conditions. (App., infra, 15a). The document stated:

You, your assignees and your representatives acting on

your authority are prohibited from directly or indirectly

engaging in any profit or benefit generating activity

relating to the publication of facts or circumstances per-

taining to your involvement in the criminal acts for

which you stand convicted (including ... the expression

of your thoughts, feelings, opinions or emotions

regarding such crime). This prohibition includes those

events undertaken and experienced by you while

avoiding apprehension.

Power read and signed the document.

Later that day (October 6) and again on October 7, 1993,

Power’s counsel wrote to the court seeking clarification of the

written conditions, without success. Subsequently, Power’s

probation officer orally asserted that Power could speak to no

one except her lawyers and therapists about the events of her

life from September, 1970 to September, 1993 without

violating the Special Conditions.

On October 29, 1993, the court denied Power’s formal

motion for reconsideration, which had asserted that the Spe-

cial Conditions, as drafted, violated the First Amendment to

the United States Constitution.

On appeal, the Supreme Judicial Court of Massachusetts

agreed that the Special Conditions impose a content-based

restriction on Power's speech. (App., infra, 6a).? Nevertheless,

the court upheld the order, holding that the Conditions need

? The Court rejected the Commonwealth's argument that Power had not

properly preserved her constitutional objections. (App., infra, la n.1).

not survive strict scrutiny, and were valid because the res-

traint on speech was “reasonably related to a valid probation

purpose.” (App., infra, 8a).

REASONS FOR GRANTING THE WRIT

The Supreme Judicial Court of Massachusetts has effec-

tively held that state courts have the discretionary authority

to impose content-based restrictions on any speech, so long as

the speaker has been convicted of a crime. The “special condi-

tions of probation” — which took effect immediately, even

though Power is in prison and not in any meaningful sense

on probation — single out speech related to Power's crime and

her life as a fugitive for a financial burden imposed on no

other speech. According to the opinion below, such a restric-

tion need only pass a single, relatively trivial hurdle: that it

be “reasonably related” to “a legitimate purpose of criminal

sentencing.” (App., infra, 9a). As this case demonstrates, such

restrictions are in fact self-justifying: prohibiting probationers

from speaking for compensation, the Massachusetts court con-

cluded, is always permissible, because it reinforces “the moral

foundations of our society.” Id.°

The writ of certiorari should be granted for three reasons.

First, the decision contributes to a growing dispute among the

lower courts about the extent to which those convicted of

crime may be subjected to otherwise unconstitutional restric-

tions on fundamental rights. Second, the decision addresses

a critical issue concerning the appropriate standard of review,

holding that content-based restrictions on speech need only

be “reasonable” if imposed by a court, though concededly sub-

ject to “strict scrutiny” if imposed by a legislature in a statute

of general applicability. Third, the Special Conditions impose

an unjustifiable prior restraint: the order, in effect, requires

3 This is therefore not even a case like Simon & Schuster, Inc. v. New

York Crime Victims Board, 502 U.S. 105 (1991), where the state asserted

an interest in compensating victims of crime. The court here simply upheld

a prohibition on compensation for speech.

Power to have her speech pre-approved by her probation

officer, whose exercise of unfettered discretion receives no

assistance from the vague terms of the Special Conditions, and

who has the authority to threaten Power with revocation of

her probation, and possibly life imprisonment, for any per-

ceived violation.

| The Ruling Conflicts With Other Lower Court

Precedent

Although it is well-established that probationers may be

subject to restrictions that would be impermissible if applied

to the general public,‘ the lower courts are divided over the

application of that general rule to restrictions of fundamental

constitutional rights.

The majority of federal and state courts hold that probation

conditions infringing on constitutionally protected rights are

subject to “special scrutiny,”® and must be “fine-tuned” to

probationary goals closely related to the crime. United States

v. Smith, 972 F.2d 960, 961-62 (8th Cir. 1992). A defendant

convicted of assault during a political demonstration, for

example, may be forbidden from active participation in

demonstrations during his probation, but not from al! speech

about political causes.° Other courts, including the Second,’

Fifth,* and Sixth® Circuits, have upheld conditions restricting

First Amendment activities where the conviction was for a

crime conimitted during the course of expressive activity,

* See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987), United

States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc)

Consuelo-Gonzalez, 521 F.2d at 265; see also Sobell v. Reed, 327

F.Supp. 1294, 1303 (S.D.N.Y. 1971) (holding that such conditions must be

tested by ‘stringent standards’ and subjected to ‘rigid scrutiny’” (quoting

Jackson v. Godwin, 400 F.2d 529, 541 (5th Cir. 1968)))

® In re Mannino, 14 Cal. App. 3d 953, 92 Cal. Rptr. 880 (Cal. Ct. App

1971); see also United States v. Lowe, 654 F.2d 562 (9th Cir. 1981); Markley

v. State, 507 So.2d 1043 (Ala. Cr. App. 1987)

United States v. Tolla, 781 F.2d 29, 33-34 (2d Cir. 1986)

* United States v. Tonry, 605 F.2d 144 (5th Cir. 1979)

' United States v. Peete, 919 F.2d 1168, 1181 (6th Cir. 1990

6

though without expressly holding that the First Amendment

required such a rule.

Massachusetts now joins a minority of courts applying a

weaker standard, requiring only that the probation condition

be reasonably related to general aims of ‘ae criminal justice

system.'° In decisions predating this Court’s holding in Simon

& Schuster, Inc. v. New York Crime Victims Board, 502 U.S.

105 (1991), two other courts have, like Massachusetts, effec-

tively held that a no-profit restriction may be imposed on any

convict, regardless of the crime. See United States v. Terrigno,

838 F.2d 371 (9th Cir. 1988); United States v. Waxman, 638

F. Supp. 1245 (E.D. Pa. 1986). In Waxman, the court upheld

a ban on financial benefit from “any TV or radio scenario”

about the crime, without subjecting the restriction to strict

scrutiny and without making any reference to the limitations

described above.

This Court should resolve the growing conflict among the

lower courts as to the legitimacy of such speech restrictions

and the appropriate standard for reviewing them. Courts have

considered these issues for years without reaching consensus,

and public interest in limiting the speech of those involved

in the judicial process has grown markedly in recent months.

2. The Case Raises Important and Broadly Applicable

Issues That Are Likely To Recur.

The ruling below decides important issues left open by this

Court’s decision in Simon & Schuster, Inc. v. New York Crime

Victims Board, 502 U.S. 105 (1991). There, the Court struck

down a statute of general applicability (the so-called “Son of

Sam” law) that required those accused or convicted of crime

to turn over to the state any money received for speech con-

10 See, e.g., United States v. Williams, 787 F.2d 1182 (7th Cir. 1986)

(drug screening condition unrelated to defendant’s crime); Edwards v.

State, 173 Ga. App. 589, 327 S.E.2d 559 (1985) (condition banishing proba-

tioner from judicial circuit); Stote v. Miller, 175 Wisc. 2d 204, 499 N.W.2d

215 (1993) (condition related only to prior crimes).

cerning the crime. The Court subjected the content-based res-

triction to strict scrutiny. 502 U.S. at 115-16. Although

acknowledging the state’s compelling interests in preventing

criminals from profiting from crime and in using criminal pro-

ceeds to compensate victims,'! the Court nevertheless held

that the statute was constitutionally infirm because it was

overbroad: it applied to any publication in which the author

mentioned, however tangentially, involvement in criminal

activity. See 502 U.S. at 118-23.

The Special Conditions at issue here do not suffer from the

same sort of overbreadth, because they are directed solely at

one individual, who pleaded guilty to the charges against her.

Yet the Massachusetts court’s holding is equally broad, as it

authorizes a particular content-based restriction on the speech

of anyone convicted of a crime. Indeed, the potential penalty

imposed on Power is far greater: not merely the loss of book

royalties, at issue in Simon & Schuster, but a potential sen-

tence of life in prison. This case therefore raises significant

issues that go beyond the questions presented to the Court in

Simon & Schuster.

a. The Ruling Permits Content Based Restrictions

Without Strict Review.

First, and perhaps most fundamentally, the Supreme Judi-

cial Court held that where content-based financial burdens

on speech are imposed by courts rather than by legislatures,

those orders are not subject to the usual “strict scrutiny,” but

merely to some casual examination akin to the “rational basis”

review applied to classifications that do not burden fun-

damental rights. The decision thus not only flouts the estab-

lished rule that content-based restrictions on speech always

'' The Court expressly declined to address whether payments for speech

about a crime could be considered “proceeds of crime” for these purposes

Id. at 119.

trigger the strictest scrutiny,'? but also ignores even the lesser

requirement of Madsen v. Women’s Health Center, Inc., ___

U.S.____, 114 S. Ct. 2516 (1994). There, the Court held that

precisely because judicial orders direct their commands to par-

ticular individuals, injunctions restraining speech “carry

greater risks of censorship and discriminatory application,”

and must be measured by more rigorous tests than their legis-

lative counterparts. 114 S. Ct. at 2524."

Three Justices, in fact, would have applied strict scrutiny

to the restriction at issue in Madsen, even though the restraint

on speech was content-neutral, and was directly related to the

past illegal conduct that formed the basis for the injunction.

Id. at 2537-40 (Scalia, J., concurring in the judgment in part

and dissenting in part).

In this case, by contrast, the probation order is simply a

nonremedial prior restraint on speech, and one that, as the

Massachusetts court admitted, singles out speech of a partic-

ular content. Such restraints are always subjected to the most

exacting scrutiny. See, e.g., Nebraska Press Assn. v. Stuart,

427 U.S. 539 (1976); Near v. Minnesota ex rel. Olsen, 283 U.S.

697 (1931). The lower court’s lenient review of the Special

Conditions ignores both the uniform rule governing prior res-

traints and the Court’s more recent elucidation of an inter-

mediate standard of review in Madsen.

'? See, e.g., Turner Broadcasting System, Inc. v. FCC, U.S. ;

114 S. Ct. 2445 (1994); Simon & Schuster, 502 U.S. at 115-118: Leathers

v. Medlock, 499 U.S. 439, 447 (1991); Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221, 230 (1987); Regan v. Time, Inc., 469 U.S. 641,

648-649 (1984). See generally L. Tribe, American Constitutional Law § 12-2

(2d ed. 1988).

'? The ruling even accords probationers’ speech, regardless of its content,

less protection than avowedly commercial speech. See, e.g., Edenfield v

Fane, ___ U.S. ___, 113 S. Ct. 1792 (1993) (requiring actual evidence

that government regulation of commercial speech directly advances a sub-

stantial government interest and is no more extensive than necessary).

b. The Ruling Too Broadly Exempts Those Con-

victed Of Crime From The Protections Of The

First Amendment.

The New York statute reviewed in Simon & Schuster was

overbroad because it confiscated the proceeds of any work

that included even an incidental admission of a crime, by an

author who had been neither charged nor convicted. The

ruling at issue here does not suffer from that same over-

breadth, but poses, in effect, the next constitutional issue: in

what circumstances a court may prohibit compensated speech

by an order targeted at a specific individual convicted of a

crime. The Massachusetts court’s answer to that question has

a reach perhaps even broader than the Son of Sam law. The

court held that any convicted defendant may be placed on

probation — concurrently with any other sentence imposed

and subjected to a restraint that need only “reinforce the

moral foundations of our society” to pass constitutional

muster.'* That is no restriction at all: what content-based res-

triction on a convict’s speech could not be said to meet such

a “standard”?

Were the restriction at issue imposed on anyone other than

a criminal defendant, it would quickly be struck down as

patently unconstitutional. But courts have never considered

the identity of the speaker a material consideration in deter-

mining whether speech is constitutionally protected, or

whether it may be regulated on the basis of its content. See.

e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765.

777 (1978) (“The inherent worth of the speech in terms of

* The other interests which the court below cited are no more limiting

'|t]his defendant, and other defendants similarly situated, are deterred from

seeking to profit directly or indirectly from criminality, the defendant

(and others like her) are given to understand that the crime committed and

her fugitive status will bring neither reward, benefit, nor profit

and her rehabilitation and understanding of the depth of her criminality

are enhanced.” (App., infra, 9a)

10

its capacity for informing the public does not depend upon

the identity of its source.”).'®

The ruling below, both by imposing a financial burden on

speech and by requiring pre-approval by a probation officer,

effectively authorizes courts to restrain the speech of anyone

convicted of a crime, and thereby deprives the public of the

“thoughts, feelings, opinions [and] emotions” of a significant

segment of the population. (App., infra, 15a). It does so

because of some perceived need to announce to the world at

large that “crime does not pay’'® and to protect society's

“moral foundations.” In the end, the court below endorsed

the same rationale that has always motivated government

censors: a hope that they may shape public opinion by tar-

geting and burdening disfavored speakers. That is flatly con-

trary to constitutional values, and that is why content-based

restrictions always trigger strict scrutiny. To hold, as the Mas-

sachusetts court did, that probationers’ speech may be res-

tricted on the basis of its content because of a judicial judg-

15 And although the Court has distinguished between prisoners and the

general public for some purposes, see, e.g., Turner v. Safley, 482 U.S. 78

(1987), those decisions have been limited to the narrow area of “prison

administration.” Id. at 85. Those decisions have no bearing on a restriction

imposed not to maintain good order in the prison but to serve a perceived

need to reinforce “the moral foundations of our society.” This Court has

also held that depriving convicted felons of the right to vote does not violate

the Equal Protection clause, see Richardson v. Ramirez, 418 U.S. 24 (1974),

but that decision turned on the specific language of the Fourteenth Amend-

ment, and involved a statute generally applicable to all felons — not, as

here. a restriction on fundamental rights to which a defendant was asked

to agree in exchange for a reduced sentence.

‘© The notion that the speech restriction serves that end, and somehow

deters crime, is bizarre. Assuming that book royalties could be considered

fruits of a crime, an issue this Court has not decided, it defies logic to suggest

that individuals commit crimes with a plan to be caught, to write books

from prison which they hope will become bestsellers, and then to hope they

are released from prison soon enough to enjoy the profits and the victims

of their crimes do not commence civil suits to attach the proceeds. See, e.g,

Note, Does Crime Pay — Can Probation Stop Katherine Ann Power From

Selling Her Story?, 35 B.C.L. Rev. 1203, 1232-33 (1994). The point, of

course, is that it is the public which is potentially injured when speech is

deterred.

ll

ment that society is better off without that speech, is to deny

those speakers the very core protection of the First

Amendment.

3. The Ruling Was Erroneous.

Finally, petitioner seeks a writ of certiorari because the

decision below is utterly irreconcilable with the basic require-

ments of the First Amendment. It saddles Power with a vague

demand that neither she nor her “representatives” engage in

any speech that the probation officer or the court might con-

sider a “benefit generating activity.” The singularly opaque

prohibition’’ gives Power two choices: either submit to a prior

restraint of the classic sort, by seeking advance permission

from her probation officer for every public statement, or

accept the possibility that her speech might later be held to

violate the Special Conditions, subjecting her to a new prison

sentence that may last the rest of her life.

The Constitution does not permit government to pose such

a Hobson’s choice to its citizens. An order which effectively

“requires the submission of speech to an official who may

grant or deny permission to utter or publish it based on its

contents” is a prior restraint in its ‘simple, most blatant

form.” Alexander v. United States, UD. --, 513 §. Ct.

2766, 2779 (1993) (Kennedy, J., dissenting).

Because the Special Conditions distinguish on the basis of

content and are directed to speech indisputably protected by

the First Amendment, they are invalid regardless of whether

or not Massachusetts can present a “compelling interest.” As

Justice Kennedy explained in his Simon & Schuster concur-

rence, balancing free speech rights against the state’s interest

in content-based suppression of speech is “unnecessary and

'? The vagueness of the restriction is hardly hypothetical. In her brief to

the Supreme Judicial Court, Power asked rhetorically whether a book of

poetry or a cookbook that mentioned her past in the book-flap biography

would violate the condition. Astonishingly, the Commonwealth responded

below that it certainly would, because any public interest in any work

authored by Power could only be the product of her celebrity.

12

incorrect,” because “resort te [that] test might be read as a

concession that States may censor speech whenever they

believe there is a compelling justification for doing so. Our

precedents and traditions allow no such inference.” Simon ¢

Schuster, 502 U.S. at 124-25 (Kennedy, J., concurring). See

also Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984) (“Regu-

lations which permit the Government to discriminate on the

basis of the content of the message cannot be tolerated under

the First Amendment.”).

Even if a compelling interest would save the Special Condi-

tions, and the Commonwealth could demonstrate such an

interest in preventing Power from profiting from speech about

her crime, see Simon & Schuster, 502 U.S. at 119, the order

is poorly tailored to that end and therefore invalid. As the

Commonwealth argued before the Supreme Judicial Court,

the order facially can be read to prohibit payment for poetry

about Oregon, where Power lived as a fugitive, or for cook-

books that Power might write based on her experience as a

chef during those years. The Commonwealth’s concession

demonstrates that the order is not truly directed to Power's

rehabilitation, nor even to demonstrating that crime does not

pay; it is the use of censorship as a purely punitive measure.

The First Amendment does not permit government to use pro-

hibitions on speech as a club to punish offenders, and the

Supreme Judicial Court’s authorization of such orders

threatens to eliminate constitutional protection for any speech

by those convicted of crime.

13

CONCLUSION

For all of the foregoing reasons, the petition for a writ of

certiorari to the Supreme Judicial Court of Massachusetts

should be granted.

Respectfully submitted,

KATHERINE ANN POWER

By her attorneys,

JosepH L. KocruBes

Mark W. BATTEN

PeTerR J. MANCUusI

MATTHEW D. SCHNALI

BINGHAM, Dana & GOULD

150 Federal Street

Boston, MA 02110

(617) 951-8000

SARAH R. WuUNSCH

AMERICAN CiviL LIBERTIES UNION

OF MASSACHUSETTS

99 Chauncy Street, Suite 310

Boston, MA 02111

(617) 482-3170

la

COMMONWEALTH VS. KATHERINE A. Power

Suffolk. December 6, 1994 May 18, 1995

Present: Liacos, C.J., Witkins, Aprams, Notan, & Lyncn, JJ

INDICTMENTS found and returned in the Superior Court on

October 1, 1970.

The cases were heard by Robert W. Banks, J.

The Supreme Judicial Court granted an application for di-

rect appellate review.

Joseph L. Kociubes (Mark W. Batten, Peter J. Mancusi &

Sarah R. Wunsch with him) for the defendant.

John P. Zanini, Assistant District Attorney (Katherine E.

McMahon, Assistant District Attorney, with him) for the

Commonwealth.

Abbe Smith, for Criminal Justice Institute, amicus curiae.

submitted a brief.

Melvin Spaeth, Darryl W. Jackson, Laura J. Hines, Ruth

Ann M. Nicastri & Charles W. Scarborough, of the District

of Columbia, & Robert S. Mueller, Ill, & Peter A. Spaeth,

for The National Victim Center, amicus curiae, submitted a

brief.

Wayne C. Paquette, amicus curiae, submitted a brief.

Liacos, C.J. The defendant pleaded guilty to two indict-

ments charging her with armed robbery and to so much of

a murder indictment as charged manslaughter. The defendant

now seeks to appeal from the portion of her sentence which

places her on probation for twenty years with a special condi-

tion that she not profit from the sale of her story to the news

media.' The defendant requests that we vacate the special

' The Commonwealth contests the defendant's right of appeal on the

grounds that (1) she voluntarily consented to the now contested condition

of probation and (2) that she failed to seek recourse from the trial judge

under Mass. R. Crim. P. 29, 378 Mass. 899 (1979) (motion to revise or

revoke) which the Commonwealth says, has not been acted on by the judge

We note, however, that the docket of the Superior Court reveals that such

a motion was filed on December 1, 1993, together with an affidavit in sup-

port and was denied without hearing on December 17, 1993. Additionally,

we take the view that the defencan?’s motion for reconsideration, also

2a

condition on the grounds (1) that it violates her right to

freedom of expression under the First Amendment to the

United States Constitution? since it imposes an unconstitu-

tional prior restraint on content-based speech, (2) that it

unconstitutionally places the defendant in jeopardy for the

actions of third persons, and (3) that it is unconstitutionally

vague in violation of her due process rights. We granted the

defendant's application for direct appellate review.

The facts giving rise to this appeal can be stated briefly.

On September 23, 1970, five individuals, including the defen-

dant, robbed the State Street Bank and Trust Company at the

intersection of Western Avenue and Everett Street in the

Brighton section of Boston. While three of her accomplices

entered the bank, the defendant sat several blocks away in

the “switch car,” ready to drive the three from the scene once

the robbery was completed. The fifth accomplice, William

Gilday, sat in an automobile across the street from the bank

as a lookout. Gilday was armed with a fully loaded Thompson

submachine gun.

The silent alarms inside the bank were triggered several .

minutes after the robbers entered the bank and Boston Police

Officers Walter Schroeder and Frank Callahan responded to

denied, was, in substance, a motion under rule 30. See Ahern v. Warner,

16 Mass. App. Ct. 223, 225 (1983). See also Stewart, petitioner, 411 Mass.

566, 569 (1992). The matter having been fully briefed and being of public

interest, we proceed to consider the merits. Wellesley College v. Attorney

Gen., 313 Mass. 722, 731 (1943). We limit our review to the appropriate

record before us, namely, the transcripts of the plea and sentencing hearings

and the contract of probation.

2 The defendant asserts that art. 16 of the Declaration of Rights, as

amended by art. 77 of the Amendments to the Massachusetts Constitution,

provides greater protection than does the First Amendment. While we have

held that to be true in certain circumstances, e.g., Commonwealth v. Sees,

374 Mass. 532 (1977), the claim of a violation of the Declaration of Rights

was not raised before the trial judge; hence, it is not properly before us.

See Boston v. Back Bay Cultural Ass'n, 418 Mass. 175, 178 n.6 (1994). Addi-

tionally, the applicability of art. 16 is not adequately briefed and hence

is waived. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).

See Commonwealth v. Cook, 419 Mass. 192, 194 n.1 (1994). Thus, we con-

sider the issues argued solely under the First Amendment.

3a

the scene. The robbers had left the bank and headed for the

“switch car” before the officers arrived, but Gilday main-

tained his position as lookout. When Officer Schroeder

attempted to enter the front door of the bank he was shot in

the back by Gilday. Officer Schroeder succumbed to his

wounds and died the following day.

Three of the robbers were arrested shortly after the crimes,

and the fourth was apprehended in 1975. The defendant,

however, managed to evade law enforcement authorities and

eventually settled in Oregon under an assumed name.

On September 15, 1993, in the glare of national news media

attention, the defendant surrendered to Massachusetts

authorities after twenty-three years as a fugitive from justice.

Represented by counsel, the defendant pleaded guilty to two

indictments charging armed robbery and to so much of a

murder indictment charging manslaughter. The pleas were

accepted after a full and complete colloquy by the judge with

the defendant and her counsel. The prosecution recommended

a sentence of from eight to twelve years. The judge accepted

the recommendaticn with respect to the manslaughter charge

and one of the armed robbery charges, ordering the defendant

to serve the terms concurrently. He exceeded the recommen-

dation, however, with respect to the second armed robbery

charge and sentenced the defendant to twenty-years’ proba-

tion, to begin immediately. The written probation contract

includes the following special condition:

“You, your assignees and your representatives acting

on your authority are prohibited from directly or

indirectly engaging in any profit or benefit generating

activity relating to the publication of facts or circum-

stances pertaining to your involvement in the criminal

acts for which you stand convicted (including contracting

with any person, firm, corporation, partnership, associa-

tion or other legal entity with respect to the commission

and/or reenactment of your crimes, by way of a movie,

book, magazine article, tape recording, phonograph rec-

4a

ord, radio or television presentations, live entertainment

of any kind, or from the expression of your thoughts,

feelings, opinions or emotions regarding such crime).

This prohibition includes those events undertaken and

experienced by you while avoiding apprehension from

the authorities. Any action taken by you whether by way

of execution of power of attorney, creation of corporate

entities or like action to avoid compliance with this con-

dition of probation will be considered a violation of pro-

bation conditions.”

The judge gave the defendant the opportunity to withdraw

her guilty pleas as the sentence exceeded the recommendation

of the prosecution. She declined. After consulation with

counsel, she agreed to the special condition in open court and,

shortly thereafter, affixed her signature to the written con-

tract of probation.

We begin with the recognition that judges are permitted

great latitude in sentencing as long as the sentence imposed

is within the limits provided by the statute under which the

defendant is convicted. Commonwealth v. Goodwin, 414

Mass. 88, 92 (1993). Commonwealth v. Burke, 392 Mass. 688,

694 (1984). The defendant was placed on probation for her

second conviction of armed robbery, an offense punishable by

life imprisonment. G. L. c. 265, § 17 (1992 ed.). Thus, the

sentence did not exceed the limits of the applicable statute.

In addition, G. L. c. 276, § 87 (1992 ed.), which permits the

imposition of probation, states that a trial court “may place

on probation ... any person before it charged with an offense

or a crime for such time and upon such conditions as it deems

proper ... after a finding or verdict of guilty” (emphasis sup-

plied). G. L. c. 276, § 87. The conditions of probation “may

include, but shall not be limited to, participation by said

person in specified rehabilitative programs or performance by

said person of specified community service work” (emphasis

supplied). G. L. c. 276, § 87A (1992 ed.).

It has been held generally that a condition of probation is

enforceable, even if it affects a “preferred” right, where the

condition is primarily designed to meet, i.e., “reasonably

related” to, the goals of sentencing and of probation. See, e.g.,

United States v. Clark, 918 F.2d 843, 847-848 (9th Cir. 1990):

United States v. Tolla, 781 F.2d 29, 32-34 (2d Cir. 1986), and

cases cited; United States v. Lowe, 654 F.2d 562, 567 (9th

Cir. 1981); State v. Graham, 33 Conn. App. 432, 446-448

(1994); State v. McGill, 114 N.C. App. 479, 483-484 (1994):

Commonwealth v. Koren, 435 Pa. Super. 499, 506 (1994);

State v. Matheny, 884 S.W.2d 480, 483 (Tenn. Crim. App.

1994); State v. Mace, 154 Vt. 430, 436 (1990); State v. Miller,

175 Wis. 2d 204, 208 (1993); Leyba v. State, 882 P.2d 863,

865 (Wyo. 1994). See also Cepulonis v. Commonwealth, 384

Mass. 495, 499 (1981).

In general, when imposing a sentence, the judge should

consider several goals: punishment, deterrence, protection of

the public, and rehabilitation. Commonwealth v. Goodwin,

supra at 92. The primary goals of a probationary sentence are

rehabilitation of the probationer and protection of the public.

Commonwealth v. LaFrance, 402 Mass. 789, 795 (1988),

quoting State v. Griffin, 131 Wis. 2d 41, 65 (1986)

(Abramson, J., dissenting). United States v. Tolla, supra at

33. Other recognized goals of probation include punishment,

deterrence, and retribution. United States v. Tonry, 605 F.2d

144, 148 (5th Cir. 1979) (condition of probation upheld as

long as “reasonably related to rehabilitation of the proba-

tioner, protection of the public against other otfenses during

its term, deterrence of future misconduct by the probationer

or general deterrence of others, condign punishment, or some

combination of these objectives’). “A probation condition is

not necessarily invalid simply because it affects a probationer’s

ability to exercise constitutionally protected rights.” Id. at

150. Conditions of probation that affect First Amendment

rights have been upheld. Tonry, supra at 151, and cases cited.

See Tolla, supra at 33-34; Clark, supra. Courts recognize

6a

the reasonableness of imposing probation as an alternative to

other forms of punishment, e.g., incarceration, in appropriate

cases. “Indeed, it is a rare sentence, whether or not jail is a

part of it, that does not in fact involve all of these objectives

— punishment, deterrence, protection of the public, rehabili-

tation and restitution.” United States v. Tolla, supra at 35.

With these general principles in mind, we address each of the

defendant’s arguments.

The defendant argues that the special condition quoted

amounts to a prior restraint on content-based speech in viola-

tion of her First Amendment rights. We disagree.

We agree that, because the condition places a financial dis-

incentive on the defendant based on the content of her speech,

it does implicate her First Amendment rights. Simon &

Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105,

115 (1991). However, the condition allows the defendant to

speak on any subject, including her crimes, whenever, and

through whatever medium she desires. Her arguments to the

contrary are unpersuasive. The condition merely prohibits the

defendant from profiting financially from speech about her

crime or her experience as a fugitive. In Simon ¢& Schuster,

the Supreme Court held that a financial burden on content-

based speech was unconstitutional when applied by a statute

which, although it served a compelling State interest, was

overly broad.* The holding of the Simon ¢> Schuster case is

* Simon & Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105

(1991), involved a challenge to New York’s “Son of Sam” law, which

required that anyone contracting with a person accused or convicted of a

crime with respect to his telling the story of his crime in the media, or their

thoughts and feelings about their crime, submit a copy of the contract to

the Crime Victims Board (board) and pay over to the board any monies

which would otherwise be owed to the person accused or convicted or his

representative. The statute broadly defined “person convicted of a crime”

as including “any person convicted of a crime in this state either by entry

of a plea of guilty or by conviction after trial and any person who has volun-

tarily and intelligently admitted the commission of a crime for which such

person is not prosecuted” (emphasis added). Id. at 110. N.Y. Exec. Law

§ 632-a(10)(b) (McKinney 1982 & Supp. 1991). The Court noted that the

statute was presumptively unconstitutional as it placed a financial burden

Ls ‘oie abl

not applicable here. That case involved a statute of general

applicability implicating content-based free speech rights and

was thus subject to strict scrutiny requiring a compelling State

interest and narrow tailoring to meet that interest. The New

York statute in issue was struck down because it was overly

broad, i.e., it applied not only to criminals convicted in a

court of law but also to those accused of a crime and those

who admitted to committing a crime.

The defendant in the case at bar is a convicted felon and

the special condition is part of her probationary sentence.

Generally, “probationer[s do not] have a right to be free from

conditions that severely restrain [their] freedom of action.”

United States v. Tonry, supra at 148. As long as the condition

meets the “reasonably related” test, it is not per se unconstitu-

tional even if it restricts a probationer’s fundamental rights.‘

United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991).

United States v. Peete, 919 F.2d 1168, 1181 (6th Cir. 1990).

on speakers because of the content of their speech. Simon & Schuster. Inc..

supra at 115. Thus, the court examined whether the statute served a compel-

ling State interest and whether the statute was narrowly tailored to meet

that interest so as to comport with the First Amendment, Jd. at 118

Although it concluded that preventing criminals from profiting from

speaking about their crimes was a compelling State interest, the Court deter-

mined that the statute could not stand because it was not narrowly drawn

so as to meet the interest without being overinclusive. Id. at 121. The sta-

tute’s broad definition of “person convicted of a crime” enabled the board

to escrow the income of any author who admitted to having committed a

crime, whether or not the author was ever actually accused or convicted.

Id. The Court noted that the statute’s effect would be felt indefinitely and

by many people. Thus, the statute was held unconstitutionally broad.

* This court has held that such restrictions are not without limits, Com-

monwealth v. LaFrance, 402 Mass. 789 (1988). In LaFrance, a special con-

dition of the defendant's probation required that the defendant submit to

searches of her person, her possessions, and any place where she may be,

with or without a search warrant, on the request of a probation officer,

for the term of her probation. We held that, under both the Fourth Amend-

ment to the United States Constitution and art. }4 of the Massachusetts

Declaration of Rights, a warrantless search of the probationer required at

least a “reasonable suspicion that a search might produce evidence of wrong-

doing.” Id. at 790. Moreover, we held that there were some instances where

art. 14 would require a search warrant to conduct such searches.

8a

Cf. Commonwealth v. LaFrance, 402 Mass. 789 (1988)

(holding unconstitutional condition of probation which

allowed for warrantless searches).

A special condition of probation is not subject to the same

rigorous First Amendment scrutiny that is employed against

a statute of general applicability. The condition in the instant

case applies only to the defendant and is reasonably related

to a valid probation purpose. It serves what we believe, and

what several other courts and commentators agree,° are valu-

able punitive and deterrent purposes beyond those that would

be served through the imposition of a prison sentence alone.

In these circumstances, such a condition is permissible.°

5 See, e.g., Simon & Schuster, Inc. v. New York Crime Victims Bd., supra

at 119 (“The State has an undisputed compelling interest in ensuring

that criminals do not profit from their crimes”); United States v. Waxman,

638 F.Supp. 1245, 1246 (E.D. Pa. 1986); Filcik, Signs of the Times: Scarlet

Letter Probation Conditions, 37 Wash. U.J. Urb. & Contemp. L. 291

(1990); Note, The Modern Day Scarlet Letter: A Critical Analysis of Modern

Probation Conditions, 1989 Duke L.J. 1357.

® Many other conditions placing burden on otherwise constitutionally pro-

tected First Amendment or other rights have been upheld when applied to

probationers. See, e.g., United States v. Romero, 676 F.2d 406 (9th Cir.

1982) (probationer convicted of a drug offense prohibited from associating

with others convicted of drug offenses); Malone v. United States, 502 F.2d

554 (9th Cir. 1974), cert. denied, 419 U.S. 1124 (1975) (probationer con-

victed of gun exportation for Irish Republican Army prohibited from, inter

alia, visiting Irish pubs); Whaley v. United States, 324 F.2d 356 (9th Cir.

1963), cert. denied, 376 U.S. 911 (1967) (probationer convicted of imper-

sonating agent of Federal Bureau of Investigation while repossessing vehicle

prohibited from working as a repossessor); United States v. Tonry, 605 F.2d

144 (5th Cir. 1979) (defendant convicted of violating Federal Election Cam-

paign Act, inter alia, prohibited from running for office or participating

in political activity during probation); Markley v. State, 507 So. 2d 1043

(Ala. Crim. App. 1987) (probationer convicted of burglary and criminal

mischief at abortion clinic required to stay 500 yards away from the clinic);

Goldschmitt v. State, 490 So. 2d 123 (Fla. Dist. Ct. App. 1986) (probationer

convicted of drunk driving required to place bumper sticker on automobile

identifying his conviction); State v. Morgan, 389 So. 2d 364 (La. 1980)

(probationer convicted of prostitution banned from French Quarter in New

Orleans); State v. Harrington, 78 N.C. App. 39 (1985) (probationer con-

victed of drunk driving could not enter any premises licensed to sell alcoholic

beverages); State v. Sprague, 52 Or. App. 1063 (1981) (probationer con-

victed of harassment required to maintain 10 p.m. curfew).

Ya

In our view, the condition imposed was reasonably related

to a legitimate purpose of criminal sentencing. This defen-

dant, and other defendants similarly situated, are deterred

from seeking to profit directly or indirectly from criminality,

the moral foundations of our society are reinforced by the con-

dition, the defendant (and others like ker) are given to under-

stand that the crime committed and her successful, albeit

illegal, fugitive status of over twenty-three years will bring

neither reward, benefit, nor profit, and her rehabilitation and

understanding of the depth of her criminality are enhanced.

A condition similar to the one at issue here was upheld in

United States v. Terrigno, 838 F.2d 371 (9th Cir. 1988). In

Terrigno, the defendant was convicted of embezzling and con-

version of public funds from a federally funded counselling

center of which she was the executive director. Part of Ter-

rigno’s sentence included probation, a condition of which was

“[t]hat the defendant, during the period of probation, not

receive any financial renumeration or any other thing of value

from any speaking engagements, written publications,

movies, or any other media coverage dealing with her involve-

ment in this offense.” Id. at 373. Terrigno claimed on appeal

that the probation condition violated her First Amendment

rights.

The Court of Appeals for the Ninth Circuit concluded that

the condition did not restrict Terrigno’s right to speak but

merely prohibited her from receiving money for speaking

about her crimes during the term of her probation. Id. at 374.

“The trial court simply wanted to assure that Terrigno would

not profit from her crime by exploiting her story in the media.

The court’s concern with this possibility is reasonable in that

there had already been considerable media interest in the

trial. ...” Id. The court stated that the condition was

reasonably related to Terrigno’s rehabilitation because it

reminds her “in a very practical sense that ‘crime does not

pay.” Id. “We think there is likewise a reasonable nexus

between the public welfare and preventing her from

profiting from telling her story. At the same time we see no

10a

danger that the public will be denied the benefits of full

exposure of the facts of her crime and conviction nor that Ter-

rigno will be denied her [F Jirst [A]mendment rights of expres-

sion because the trial court’s condition only forbids Terrigno’s

making a profit, it does not restrict expression at all, and the

restriction obtains only during her probation term.”” Id. at

374-375.

The defendant's second argument concerns the portion of

the special condition that extends the prohibition on profit to

“({her] assignees and [her] representatives acting on [her]

authority.” She claims that this portion of the condition

impermissibly puts her in jeopardy for the actions of third par-

ties. She also claims that the condition burdens persons other

than herself even though they were not convicted of any

crime. Finally, she claims that this portion of the condition

is overinclusive because it lacks clear boundaries and is dis-

criminatory because it permits some third parties to profit

’ A condition of probation similar to the defendant's was also employed

in United States v. Waxman, 638 F.Supp. 1245 (E.D. Pa. 1986). In

Waxman, the defendant pleaded guilty to receipt of stolen property and

interstate transportation. The defendant was placed on probation with the

condition that he not profit financially or participate in a project from

which a friend or his family might profit, based on the sale of “any TV

or radio scenario.” Id. at 1246. The defendant sought a modification of the

condition on the grounds that it deprived him of his First and Fifth Amend-

ment rights and that the condition served purely punitive purposes. The

court concluded that the condition did not violate the defendant’s First or

Fifth Amendment rights because it did not prohibit him from speaking but

merely profiting from that speech. The court agreed that the defendant may

have been deprived of a property interest, “but it was not without due

process of law. Convicted felons frequently are deprived of property (and

liberty) interests.” Id.

The court also concluded that the condition was reasonably related to

the goals of probation in that the condition was not meant to punish the

defendant but served a rehabilitative, and deterrent, effect. “It is in his own

interest for Dr. Waxman to learn that society will neither tolerate criminal

behavior nor permit the criminal to profit from it when he can be prevented

from doing so. Second, it is also in the interest of other members of society

to learn by example that not only may they have to pay the piper but that

they cannot expect the piper to pay them for their memoirs.” Id.

lla

from telling Power's story and not others. There is no merit

to these claims.

Assuming, without deciding, that the defendant has

standing to raise the claims of third parties, we think it is clear

what conduct the condition prohibits regarding actions by

third parties. The defendant’s apparent confusion is merely

a result of her strained reading of the condition and specula-

tion as to its repercussions. See State v. Miller, 175 Wis. 2d

204, 212-213 (1993). One need look no further than the well-

established definitions of “assignee” and “representative” to

see that the condition restricts profit-generating activity only

by those third persons acting on the defendant’s behalf and

on her authority (representatives) and by persons to whom she

bestows the authority to pursue and enforce rights which

would otherwise be hers alone (assignees) .* The condition does

not restrict any third party from telling the defendant's story,

provided he or she is not acting on the defendant's authority

as her representative or as her assignee.

Finally, the defendant argues that the condition is uncon-

stitutionally vague.® She claims that it is unclear what

behavior the condition prohibits and that the condition

improperly leaves decisions to probation officers about when

she can and cannot speak. We agree that the defendant is enti-

tled to know what conduct is forbidden by her probation con-

dition. The constitutional rule against vague laws applies as

equally to probation conditions as it does to legislative enact-

ments. Griffin v. Wisconsin, 483 U.S. 868, 875-876 n.3

* Black’s Law Dictionary 118 (6th ed. 1990), defines an “[a]ssignee” as

“[a] person to whom an assignment is made; grantee,” and defines “[a]ssign-

ment” as “[t]he act of transferring to another all or part of one’s property,

interest, or rights.” Jd. at 119.

A “[rJepresentative” is “[a] person or thing that represents, or stands for,

a number or class of persons or things, or that in some way corresponds

to, stands for, replaces, or is equivalent to, another person or thing [o]ne

who represents others or another in a special capacity, as an agent, and

term is interchangeable with ‘agent.’” Jd. at 1302.

* The defendant makes no argument that the condition violates due

process in that it is disproportionate to the offense. See Commonwealth v.

Sanchez, 405 Mass. 369, 379-380 (1989). and cases cited.

12a

(1987). However, we believe the condition is adequately clear

so as to inform the defendant of what conduct is prohibited.

Of course, we are necessarily “[c]ondemned to the use of

words [and thus] we can never expect mathematical certainty

from our language.” Grayned v. Rockford, 408 U.S. 104, 110

(1972). In light of this fact, we are of opinion that the proba-

tion condition is as clear as possible. We have stated, in dis-

cussing vagueness in regard to statutes, that “if the language

which is challenged conveys sufficiently definite warning as

to the proscribed conduct when measured by common under-

standing and practices, it is constitutionally adequate.” Com-

monwealth v. Adams, 389 Mass. 265, 270 (1983), quoting

Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971).

That much can be said in the instant case.

The special condition of the defendant’s probation is

aftirmed.

So ordered.

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

Department: Superior Trial Court October 6, 1993

Division: Suffolk Probation

To: Power, KATHERINE =)

You have been placed on probation to 20 yrs.

You have been placed on probation to prob. 20 yrs. to com-

mence this date with a suspended sentence of as

Unless otherwise excused, you are required to return to

court on AS DIRECTED when a report on your probation

progress will be made.

If you fail to comply with any of the following conditions

of probation, now placed on you by this court, you may be

ordered to appear again in court, after due notice, and the

court may change the conditions, extend the period of proba-

tion or impose sentence. If you should fail to appear you may

be defaulted and a warrant for your arrest may be issued.

CONDITIONS OF PROBATION

(Strike out conditions not imposed by the Court)

1. You must obey local, state or federal laws or court order.

bo

You must report to your assigned probation officer at

such time and place as he/she requires.

3. You must notify the probation officer immediately of a

change of residence or employment.

4. You must not leave the Commonwealth without the

express permission of the probation officer. Such permis-

sion may be conditioned upon your agreement to waive

extradition.

SPECIAL CONDITIONS OF PROBATION

5. See ATTACHED CONDITIONS OF PROBATION.

l4a

6.

I have read and understand the above conditions of proba

tion and agree to observe them. I acknowledge receipt of a

copy of these conditions

SUPERVISING PROBATION

Orricer Wit Be: KATHERINE A. Power

Davin R. SuLLIVAN Probationer

725-824]

Davip R. SULI IVAN

Witness (Probation Officer) Make checks payable to

Signed original to

Probationer.

2 Signed duplicate in

folder.

5a

SPECIAL CONDITIONS OF PROBATION

You, your assignees and your representatives acting on your

authority are prohibited from directly or indirectly engaging

in any profit or benefit generating activity relating to the pub-

lication of facts or circumstances pertaining to your involve-

ment in the criminal acts for which you stand convicted

(including contracting with any person, firm, corporation,

partnership, association or other legal entity with respect to

the commission and/or reenactment of your crimes, by way

of a movie, book, magazine article, tape recording, phono

graph record, radio or television presentations, live entertain

ment of any kind, or from the expression of your thoughts,

feelings, opinions or emotions regarding such crime). This

prohibition includes those events undertaken and experienced

by you while avoiding apprehension from the authorities. Any

action taken by you whether by way of execution of power

of attorney, creation of corporate entities or like action to

avoid compliance with this condition of probation will be con-

sidered a violation of probation conditions.

SUPERVISING PROBATION

OFFICER WILL BE: KATHERINE A. Power

Davip R. SULLIVAN Probationer

725-824]

Davin R. SULLIVAN

Witness (Probation Officer)

Signed original to

Probationer.

X__ Signed duplicate in

folder.

l6a

October 29, 1993 Motion for Reconsideration of Special

Condition of Probation and Hearing is denied: Counsel is

referred to Suffolk Superior Probation Office to be reminded

of strict compliance to probation conditions imposed on

10/6/93. Court observes acknowledgement of defendant's

understanding of those conditions to probation office fol-

lowing this imposition as well as their publications to her and

counsel prior to imposition of sentencing.

/s/ Banks J.

attest Paul D. Nash. Asst. Clerk