Massachusetts Criminal Lawyer BlogDK and LL had been in a relationship for several years and lived together at DK’s house. The relationship was good, except that LL had a big problem with DK’s ex-wife. On a beautiful spring day, the pair decided to take DK’s motorcycle for a nice day-long ride. They had a wonderful day together and returned home. That’s when trouble began. DK’s ex-wife called and began arguing with DK. LL was not happy with the manner in which DK handled the telephone, got angry with DK and began drinking. Within a matter of minutes, LL’s demeanor changed significantly, she became angry, intoxicated, and was yelling and screaming at DK. The pair separated–DK stayed downstairs and LL went upstairs. Eventually, DK went upstairs to go to bed. LL was not in the bedroom and DK crawled into bed and turned out the lights. Soon thereafter, LL approached and began yelling at DK and poking him in the back. She left the room and returned again shortly thereafter. As DK heard her walking towards him and then felt her hand touch his back again, he reached out with his arm to stop her. The next thing he heard was a loud crash. LL had fallen backwards and hit her head on a sharp marble fireplace next to the bed. There was blood all over the bed and the floor. LL ran into the bathroom, locked the door and called 911. The police quickly arrived at the house and arrested DK and charged him in the Malden District Court with domestic assault and battery. DK hired Attorney Joshua Lewin of the Law Firm of Lewin and Lewin to defend him against the charges. LL did not want DK to be prosecuted, but the Assistant District Attorney refused to drop the case and insisted that the case be prosecuted. DK and LL entered into an “Accord and Satisfaction”, which is a private civil agreement to settle the dispute without criminal charges. Such an agreement, however, requires that a Judge agree to dismiss the charges. In this case, there were photos of the crime scene showing substantial amounts of blood and a copy of the 911 call had been determined to be admissible in evidence. The Assistant District Attorney objected to the case being dismissed and the Judge indicated that his practice was to not dismiss these types of cases if the Assistant District Attorney objected. On January 24, 2012, the morning of trial, with all witnesses present in court, Attorney Lewin argued persuasively to the Judge that he should dismiss the case even though the Assistant District Attorney objected. There were lengthy arguments. Ultimately, Attorney Lewin persuaded the Judge to deviate from his practice and to dismiss the charges. The case was dismissed and DK walked out of Court without any penalties. There are many strategies for winning a domestic assault and battery case, including through the use of an ‘accord and satisfaction.’ The lawyers at Lewin and Lewin have a long track record of using these strategies to successfully defend their clients in assault and battery cases.
Articles Posted in Assault & Battery
DOMESTIC ASSAULT DISMISSED IN LAWRENCE DISTRICT COURT
NF and her domestic partner of 23 years live together in Andover, MA. On September 21, 2011 the two women got into an argument; the argument turned physical; punches were thrown and a glass bowl got tossed and smashed. The partner called the police to get NF removed from the house. The police repsonded and saw the partner with a black eye and NF got arrested and charged with Domestic Assault and Battery and Assault with a Dangerous Weapon (a glass bowl). The police photographed the partner’s black eye. NF appeared in Court for an arraignment on the next morning and her case was continued for a pre-trial hearing to November 4, 2011. On Saturday morning September 24, 2011 NF and her partner met with Attorney Robert Lewin in Andover for a free initial consultation. During that initial meeting Attorney Lewin learned that NF herself had received several bruises in the fight and Attorney Lewin had photographs taken that day of NF’s bruises. Attorney Lewin prepared an Accord and Satisfaction and a Fifth Amendment Affidavit for the partner to sign. The partner did not want NF to be prosecuted and wanted the case dismissed. Massachusetts Law permits the accused and the “victim” in an assault and battery case to work out a financial settlement of the case. That financial settlemnt is called an Accord and Satisfaction. Upon the filing of an Accord and Satisfaction a judge has the discretion to order an assault and battery charge dismissed. The judge is not required to dismiss the assault and battery but the judge may order the assault and battery charge dismissed. Technically an Accord and Satisfaction does not apply in the case of a felony. Assault and Battery is a misdemeanor in Massachusetts. Assault with a Dangerous Weapon is a felony and technically an Accord and Satisfaction is not available for the felony charge. In addition to the Accord and Satisfaction Attorney Lewin also prepared a Fifth Amendment Affidavit for NF’s partner to sign. Because the partner had exposure herself to being prosecuted for Assault and Battery against NF, the partner had an absolute right not to incriminate herself and therefor an absolute right not to testify in the case against NF. On September 28, 2011 Attorney Lewin met with the Assistant District Attorney assigned to the case for a pre-trial conference. Although the DA’s Office recognized that the partner had a right not to testify the DA’s Office was unwilling to dismiss the case at the pre-trial hearing. As they always do, the DA’s office was insisting that the parties appear for a pre-trial hearing and that the case then be set down for trial on a date thereafter. On Thursday, September 29, 2011(8 days after the fight) Attorney Lewin had the case brought forward and Attorney Lewin, NF and her partner (the named victim in the case) all appeared in Court. Attorney Lewin presented the written Accord and Satisfaction and the written Fifth Amendment Affidavit to the Judge. The Judge asked if the partner was present in Court and Attorney Lewin had her come forward. The Judge then determined that the partner had a valid Fifth Amendment claim. The Commonwealth conceded that they could not go forward without her testimony. Attorney Lewin moved for dismissal of the charges; the Assistant District Attorney objected and asked that the case be set down for trial. Over the objection of the Assistant District Attorney the Judge ordered the case dismissed. It took just eight days from the date of arrest (September 21, 2011) to dismissal of all the charges (September 29, 2011). Both NF and her partner were thrilled that the case got disposed of so favorably and so quickly. The results in this case are common at Lewin & Lewin. We don’t sit back and wait for things to happen; we make things happen and we do it quickly.
DOMESTIC ASSAULT AND BATTERY DISMISSED
SM, a 26 year old male bookkeeper, was charged in Malden Court with assault and battery on his girlfriend on March 1, 2011. The allegation arose from a fight that he and she allegedly had; she claimed in her affidavit for an abuse prevention order that he had pushed her up against a railing and grabbed her around the throat, choking her. She also claimed that he had banged her face into a door leaving her with swelling on her forehead for which she went to the hospital. SM had two prior domestic assault and battery charges on his record and four prior abuse prevention orders that had been taken out against him by four different women over an eight year period. The Middlesex County D.A.’s Office did not want to let go of this case. SM retained Attorney Robert Lewin. The police reports were reviewed along with the girlfriend’s affidavit; the reports and the affidavit did not add up. Ultimately the girlfriend told Attorney Lewin that SM had not assaulted her and that she had lied. Attorney Lewin put the girlfriend into contact with the Assistant D.A. The D.A.’s Office ultimately agreed to dismiss the charge against SM. On May 17, 2011 SM appeared in Malden Court. Attorney Lewin pressed for the dismissal to enter prior to SM’s arraignment. The significance of the dismissal entering prior to arraignment is that the charge does not go onto SM’s criminal record. Once the arraignment takes place a criminal record is created. As a result of this case not going onto SM’s record he will be eligible in May of 2012 to have his remaining criminal record sealed. SM and his girlfriend walked out of court arm in arm – go figure.
KIDNAPPING/ASSAULT & BATTERY DANGEROUS WEAPON GETS PROBATION
On a warm night in April 2010 CL, a 48 year old businessman, took his then girl friend (ZM) to the beach to go fishing on Martha’s Vineyard. They were both drinking and an argument broke out between them. CL struck ZM several times and then placed her in his truck and began driving. She tried to get out of the truck but he held her in. They arrived at his house (on the Vineyard) and he brought her inside. The fight continued. He punched her about the head, face, and arms and then took her head and banged it into the glass covering the fireplace. CL then ran from the house, got in his truck and drove away. When ZM came to she called a friend who came and got her and took her to the hospital. Pictures were taken of her face and arms. They were bloody and bruised. The police were called. A warrant was issued for CL’s arrest for Attempted Murder, Kidnapping, Assault & Battery with a Dangerous Weapon, 3 counts of Assault and Battery, and one count of Intimidation of a Witness. CL left the Island and and contacted his busness attorneys who referred him to Attorney Robert Lewin. CL met with Attorney Lewin on a Sunday and retained Attorney Lewin. Attorney Lewin contacted the local police department on Martha’s Vineyard and then contacted the Assistant District Attorney assigned to the case. At first the DA’s Office was reluctant to discuss bail and took the position they wanted CL held without bail. After some negotiations a surrender agreement was reached that if CL appeared at Court the DA would agree to a $15,000 cash bail. Attorney Lewin and CL took the ferry across to Martha’s Vineyard and appeared in Edgartown District Court. CL was arraigned and released on $15,000 cash bail. An investigator was retained to look into ZM. Subsequently, the case was presented to the Grand Jury and CL was indicted for Kidnapping, Assault and Battery with a Dangerous Weapon, three counts of Assault and Battery, and one count of Intimidation of a Witness. The Grand Jury declined to indict on the Attempted Murder charge.CL’s wish was to stay out of prison. The case proceeded through court and in February of 2011 the parrties appeared in court to set a trial date. On that February date a major break occurred in the case. When CL appeared in Court, ZM was also in court. However, she was not there to watch the proceedings. She herself was under arrest. She was in cuffs and leg irons. She had been picked up on a detainer (warrant) that had been issued by the Feds for immigration violations. The Judge in Edgartown ordered her held for the Immigration and Customs Enforcement (ICE) agrents to pick her up, which they did. She was brought to Boston. Unfortunately for CL, the DA’s Office does have a “special relationship” with the ICE agents where they can get a person held in ICE custody brought to the Court to testify in a criminal case. Nevertheless, Attorney Lewin saw this as an opportunity to press the DA’s Office for a probationary dispositon of the charges. The DA’s Office balked. During the year that the case had been going through the Court the DA’s Office had always wanted a State Prison sentence. Now they were asking for a 2 year sentence to the House of Correction. CL did not want to go to trial but he was unwilling to plead to jail time. The negotiations continued and finally the DA’s Office agreed to a suspended sentence with Probation. On April 21, 2011 CL and Attorney Lewin appeared in Edgartown Superior Court and CL plead to the charges and received a 2 year suspended sentence with a three year term of Probation, concurrent on all the charges. His conditions of Probation include drug and alcohol counseling and completion of a batterers program. Wins come in all shapes and sizes. CL was so relieved not to be going to prison. A suspended sentence is a sentence that is imposed, but execution of the sentence is suspended for a period of time. If the probationer stays out of trouble during the period of the probation then the probation is terminated and the case is closed and the probationer never serves a day in jail. If the probationer violates any term of the probation then the probationer can be brought back to court, the probation revoked, and the suspended sentence put into effect. CL has to keep his nose clean for the next three years. CL had a choice: he could have rolled the dice and gone to trial. If the DA had been unable to get ZM to court the case would most likely have been dismissed. If the DA was successful in getting ZM to Court then a plea on the date of trial would have yielded a State Prison sentence most likely. If the case had gone ahead to trial the evidence against CL was strong and the likelihood is that he would have been convicted and given a substantial State Priosn sentence. Once the suspended sentence with probation was put on the table CL decided to take the plea, take the probation, and be done with it. In the circumstances this was a wise decision.
DOMESTIC ASSAULT AND BATTERY CASE TO BE DISMISSED
GD, a 33 year old British Citizen, lives with his wife and seven year old son in Middlesex County Massachusetts. None of them are US Citizens and he is here on a work visa. GD got into an argument/fight (depending upon whose version you believe) with his wife and the police were called to the house. The police separated GD and his wife.The wife told the police that GD had “pushed her to the floor” and had slapped the seven year old. The police arrested GD and he was charged in Ayer District Court with Assault and Battery on his wife and Intimidation of a Witness. The Domestic Violence Unit in the D.A.’s Office had reviewed the case and had “taken an interest” in the case. They wanted the case prosecuted and wanted a guilty finding on the Assault and Battery Charge. GD retained Attorney Robert Lewin. There are many tools available in this type of case and they were all used here. Because GD was a British Citizen and because he traveled outside the US often any type of probation was unacceptable as he might not be permitted to reenter the US the next time he left. Attorney Lewin spoke with Mrs. D (GD’s wife) and she agreed to exercise her marital privilege and not testify against her husband. Attorney Lewin also prepared and had Mrs. D sign an Accord and Satisfaction wherein she asked that the charges against her husband be dismissed. Massachusetts Law allows a Judge to dismiss an Assault and Battrey case if the “victim” comes before the Court and “acknowledges satisfaction” for her injuries. The Judge is not required to dismiss the case but has the discretion to dismiss the case. Attorney Lewin also prepared a Motion to Exclude the statements made by Mrs. D to the police on hearsay grounds. On April 14, 2011 the case was called for trial in Ayer District Court. The DA was going to proceed without the direct testimony of Mrs. D. The DA was going to attempt to get into evidence Mrs. D’s statements to the police. The Judge reviewed the Accord and Satisfaction but exercised his discretion not to dismiss the case. The DA suggested a continuance without a finding; Attorney Lewin said that was unacceptable as GD denied hitting or pushing his wife and he would not admit guilt to anything. The Judge suggested a one year term of “pre-trial probation”. Attorney Lewin said that this too was unacceptable as it may create immigration consequences for GD. Attorney Lewin said that the defense would agree to a general continuance of the case for six months – without any pre-trial probation – with the understanding that the case would be dismissed at the end of the six months. The Assistant DA in Ayer District Court had to call her superiors in the Domestic Violence Unit to get authority to agree to the general continuance of the case. The DA’s Office agreed and the case was continued generally to October 14, 2011 on which date it will be dismissed. There is NO probation and there are no immigration consequences to GD.
This case could serve as a law school text book case for issues in a domestic assault and battery case:
- Use of an Accord and Satisfaction to seek a dismissal of the charge.
DOMESTIC ASSAULT NOT GUILTY IN MALDEN COURT
JR dated a girl for 2 years. They got engaged and then he discovered she was cheating on him. They broke up. Within several weeks she started calling him on the phone. He would not take her calls. One Saturday night JR was out with friends and went to a night club. He left the night club and when he got out to his car there was a voice message from the girl. She said she missed him terribly and wanted him to come over. He drove to her apartment. She let him in. They talked and then ended up in the sack and made love. After the love they began to argue. He got upset and threw some things in her apartment. She told him to leave and he left. She then called the Everett Police and said that JR had assaulted her with a box cutter. The police went and arrested JR. He was arraigned in Malden Court and charged with Assault and Battery and Assault with a Dangerous Weapon (the box cutter). A review of the police reports showed that JR had never touched her (in any assaultive way). Attorney Lewin filed a Motion to Dismiss the charge of Assault and Battery. Assault and Battery requires proof of a battery; a battery is an unconsented to and intentional touching. There was no proof of such a touching and the Motion to Dismiss the Assault and Battery charge was granted. The DA’s Office offered to continue the Assault with a Dangerous Weapon charge without a finding. JR refused the offer and took the case to trial. At trial the girl testified that JR waved the box cutter at her and threatened her with it. JR testified that he had only picked up the box cutter and threw it into a closet and that he never threatened her with it. Attorney Lewin was able to impeach the credibility of the girl by shlowing that she had made a number of inconsistent statements to the police. On February 9, 2011 JR was found not guilty of the charge in Malden District Court following a jury-waived trial. Attorney Lewin and JR had met three times in the week and a half before the trial; JR was fully prepared to testify (and he did) and he was fully prepared to handle every question he was asked by the Assistant District Attorney on cross-examination. During their trial preparation sessions Attorney Lewin played the role of the District Attorney and grilled JR with questions. JR was ready and handled the DA’s questions with ease.
DON’T PLEAD GUILTY IF YOU DIDN’T DO THE CRIME
KL was married with one child. His wife had many issues including expecting KL to be at her beck and call whenever she wished. The marriage was floundering and KL moved out; she called KL often and demanded that he drop whatever he was doing and come take their child so she could “go out”. When he did not respond promptly enough she called the police and accused KL of assaulting her. The police came and arrested KL and charged him with Assault and Battery on his wife. He was arraigned in Woburn District Court and his case was continued. While that case was pending she called the police a second time and again accused KL of assaulting her. KL was arrested again and brought to Woburn District Court; the DA’s Office sought to have KL’s bail on the first case revoked and have him locked up while the cases were pending. (Right now – October 2010 – it can take 5 months to get a trial date in Woburn District Court.) KL was released on a cash bail which his father put up. KL retained Attorney Lewin. KL insisted he was innocent. As the time for trial drew near KL’s family became concerned about whether or not he should go to trial or perhaps “work out a plea deal”; Attornney Lewin insisted that Kyle not plead guilty but rather go to trial. Attorney Lewin made it clear to KL and his family (and to KL’s wife) that the evidence and the truth were on KL’s side and that KL would never plead guilty. On October 26, 2010 KL’s cases were called for trial in Woburn District Court. Attorney Lewin stood up and in a loud clear voice answered that KL was ready for trial on both cases. KL’s wife refused to testify; both charges were dismissed. Never plead guilty to a crime you did not commit.
BULLYING VICTIM EVENS THE SCORE AND WALKS
GP, an 18 year old from Wilmington, was being picked on and bullied by a fellow who at one time had been his best friend. The bullying reached the point where GP couldn’t take it any more. GP attacked the bully, knocked him down, and allegedly kicked him with a shod foot. GP emphatically denied kicking the boy. A boy who was present videoed the entire episode on his cell phone. The police applied for a criminal complaint against GP for Assault and Battery by Dangerous Weapon, a shod foot, and a hearing before a Clerk-Magistrate was scheduled at Woburn District Court. The crime is a felony in Massachusetts. GP retained Attorney Joshua Lewin. Attorney Lewin immediately contacted the Wilmington Police and then drove to the Wilmington Police Station and obtained a copy of the video. The video was not of the best quality but a careful review ov the video confirmed what GP had been saying that he did NOT kick the bully. With the video in hand Attorney Lewin approached the Police Prosecutor and an agreement was reached that no complaint would issue against GP. On October 26, 2010, GP and Attorney Joshua Lewin appeared at Woburn District Court for the Clerk-Magistrate’s Hearing and no criminal complaint was issued against GP. As a result of the case being prepared without delay prior to the Clerk-Magistrate’s hearing GP was not charged, he did not have to appear in front of a judge, and NO CRIMINAL RECORD was created.
ANOTHER ALLEGED DOMESTIC ASSAULT DISMISSED
EB, age 36, was arrested and accused of domestic assault and battery on his seventy year old father. EB consistently and emphatically denied that he had struck his father. Following his arraignment EB retained Lewin & Lewin. Attorney Robert Lewin sought out the father and spoke with him. The father came to the pre-trial hearing at Lowell District Court. Attorney Lewin put the father in direct contact with the Assistant District Attorney. The father told the Assistant DA that no assault occurred. The DA’s Office refused to dismiss the case at the pre-trial hearing!! This is the position the Middlesex County DA’s Office takes in virtually every domestic assault and battery case. Attorney Lewin requested a quick trial date. On Wednesday, October 13, 2010 litigation specialist Joshua Lewin from the firm of Lewin and Lewin appeared in Lowell District Court and answered ready for trial. The Commonwealth could not go forward and the case was dismissed.
Angry Mother With A Shoe
SD, a 68 year old mother, was angry that her son’s ex girlfriend had caused a number of criminal charges to be filed against her son (Kidnapping, Attempted Murder, Violation of an Abuse Prevention Order). The son was ordered held in $10,000 cash bail. In March 2010 the son’s case was on the Court list in Lynn District Court. Mother came to court wearing a pair of sandals. Mother saw the ex-girlfriend (a girl to whom the mother had been most generous over the last several years) and grabbed the ex-girlfriend by the hair, punched her in the head, and then allegedly took her sandals off and beat the ex-girlfriend with the sandals. Court officers and Lynn Police came running and put the mother in cuffs and arrested her. She was charged with Assault and Battery by means of a dangerous weapon (the sandals), Assault and Battery, and Threats. After considerable negotiations with the Essex County District Attorney’s Office, on June 7, 2010 the DA agreed to dismiss the felony count of Assault and Battery with a dangerous weapon and the count alleging Threats. The charge of Assault and Battery (a misdemeaonr) was ordered continued for nine months without a finding to be dismissed at the end of the nine months. As Attorney Lewin and the mother were leaving the Courthouse he told her to leave her sandals at home the next time she comes to Court.