Harvard professor Ogletree to handle Galluccio appeal

An aide to the prominent professor e-mailed the Globe yesterday to say that Ogletree is reviewing the legal record and will work on filing a challenge, but has no further comment. Ogletree, who weighed the matter for about a week, did not respond to a phone call. An appeal would be filed with the state Court of Appeals.

Ogletree is considered one of the nation’s most influential lawyers and legal scholars. His clients have ranged from Anita Hill in 1991 during confirmation hearings before the Senate Judiciary Committee for Supreme Court justice Clarence Thomas, to Henry Louis Gates Jr., a noted Harvard scholar of African-American studies who accused police of racism after he was arrested last year in Cambridge.

George Hassett, the Quincy trial lawyer who has represented Galluccio, did not return calls seeking comment.

Galluccio, a repeat drunk driver, pleaded guilty Dec. 18 to fleeing the scene of a car crash in October and was sentenced to six months’ home confinement. A 13-year-old boy and his father were injured in the accident.

Under the conditions of Galluccio’s probation, he was barred from drinking alcohol and agreed to undergo random tests by a Sobrietor, an alcohol breath-screening machine installed on his home phone line.

On Dec. 21, immediately after a program manager for the office of the commissioner of probation installed the device, Galluccio was directed to blow into it and tested positive for alcohol. On Jan. 4, a district court judge sitting in Medford found at a hearing that Galluccio had violated the terms of his probation and sent him to jail.

The 42-year-old Galluccio, a Democrat and former mayor of Cambridge, resigned from the Senate the next day, but has insisted that he had abstained from alcohol since he pleaded guilty in the car accident. He initially blamed the positive test reading on toothpaste, saying the ingredients could have triggered a faulty result.

Several lawyers who defend motorists accused of drunken driving have questioned the reliability of the Sobrietor and say Galluccio should challenge the finding that he violated probation.

Thomas E. Workman Jr., a Taunton lawyer and electrical engineer who testifies nationally as an expert witness in drunken driving cases, said the Sobrietor uses less reliable technology than the alcohol breath-testing devices used inside police stations for motorists suspected of being intoxicated.

As a result, he said, Sobrietor test results cannot be admitted into evidence at a criminal trial. They can, however, be introduced at a hearing to determine whether someone has violated conditions of probation, because courts set a much lower threshold for finding a violation.

Workman also said he found it significant that Galluccio told the court before he was sent to jail that he had unsuccessfully asked probation officials to let him leave his home and go to the hospital for a blood test but was rebuffed.

Nonetheless, Workman said appeals of a violation of probation are rare and hard to win.

“The standard for finding someone in violation is very difficult to overturn,’’ he said. “The judge just has to say, ‘I find it more likely than not that the person violated the probation.’ ’’

Bridget Norton Middleton - a spokeswoman for the Plymouth County district attorney’s office, which represented probation officials at the hearing - rejected criticism of the Sobrietor yesterday. “We are confident in the evidence that was presented to the court and on which the court relied to find Mr. Galluccio in violation of his probation,’’ she said.

The office of the commissioner of probation has used the Sobrietor, manufactured by BI Inc. of Colorado, since 2001, said spokeswoman Coria Holland. About 175 criminal defendants in the state are monitored with the Sobrietor, she said.

Saltzman can be reached at jsaltzman@globe.com.