GPS Monitoring

March 26, 2015

INDECENT ASSAULT AND BATTERY ON A CHILD – NOT GUILTY

On March 25, 2015, following a two day jury trial in Roxbury Municipal Court, HN, a 70 year old immigrant to the United States was found NOT guilty of three sex offenses in Roxbury Municipal Court. Attorney Robert Lewin represented HN and tried the case to a Suffolk County Jury. After the two day trial it took the jury only 40 minutes to find HN NOT guilty of Indecent Assault & Battery on a child under 14, NOT guilty of Lewd, Wanton and Lascivious Acts, and NOT guilty of Enticement of a Child Under 16 for a Sexual Act.
The case began almost one year ago on May 14, 2014. HN, then age 69, was retired and lived in the Dorchester section of Boston with his wife and one high school age son. They lived on the first floor of a two family house. HN’s landlord, the landlord’s wife, and their three children lived on the second floor. For the two years prior HN drove his son and the landlord’s youngest daughter (then age 13) to school every morning and he brought them home from school every day. On May 14, 2014 HN drove to the school to pick up his son and his landlord’s 13 year old daughter (Jane, a pseudonym). Jane got into the car. Jane testified that she got into the front seat and put the radio on and they were waiting for HN’s son to arrive so they could drive home. Jane testified that HN began to touch himself and began to masturbate; Jane further testified that HN reached across the front seat and began to rub Jane’s thigh. Jane testified that she the got out of the car. The next day Jane reported this to her best friend. In turn the police were notified and HN was charged with Indecent Assault & Battery on a child under 14 (the rubbing of Jane’s thigh), Lewd, Wanton and Lascivious act (masturbating in the car in the presence of a child) and Child Enticement (having Jane remain in the car while he performed a sex act). HN absolutely denied the allegations. HN sought out a lawyer and was referred to Attorney Robert Lewin in North Andover. After meeting with Attorney Lewin HN retained Attorney Lewin. Attorney Lewin began his case preparation and he could see cracks in Jane’s account of what happened. It took eight months to fully prepare the defense; every defense witness met with Attorney Lewin several times and was fully prepared to testify. Attorney Lewin brought the Defense witnesses into the courtroom prior to the trial and showed the witnesses where they would sit when they testified and how to direct their testimony toward the jury. Attorney Lewin thoroughly studied the “SANE” interview of Jane. (A “SANE” interview is an interview of the complainant that is conducted by a sexual abuse nurse examiner; the interview is recorded – video and audio – and the defense is given a copy of the interview.) On March 24, 2015 all the parties appeared in Court. Attorney Lewin had written out his opening and closing statements to the jury and had written out his cross examination of every government witness. No detail was left for chance. As the trial proceeded Attorney Lewin could see the looks on the faces of the jurors. Jane’s credibility as a witness was eroding with every question on cross examination. At the close of the Commonwealth’s case the Judge directed a finding of not guilty on the Child Enticement charge. On March 25, 2015 at 2:05 PM the jury went out to deliberate. At 2:45 PM the jury came in with NOT guilty verdicts on the remaining two charges. HN and his family were greatly relieved. Had he been found guilty he would have had to register as a sex offender for the next 20 years and he would have been subject to GPS tracking with a bracelet and he was looking at JAIL. HN, his wife and son gave Attorney Lewin a big group hug when they got outside the Courthouse. HN went home a FREE MAN. Attorney Lewin went home to his Sicilian wife who made him a big pasta dinner! It was a good day.

December 3, 2012

OPEN & GROSS DEFENDANT CATCHES BREAK IN LAWRENCE DISTRICT COURT

by Robert D. Lewin

It was a nice warm September day and JT was driving home in his car. He pulled into a parking lot in a State Forest in North Andover and began to masturbate in the car. A woman in an SUV pulled into the parking space next to JT. She looked over towards his car and he looked over at her. He continued to masturbate. She got out her cell phone and dialed 911. He backed his car up quickly and spead away, but not before she got his license plate. The police investigated. The police spoke to him and although he denied being in the parking lot he did tell the police he was the only person using his car that day. The woman ID’d his photo in a photo array as the man she saw masturbating. The North Andover PD charged JT with Open & Gross Lewdness (a felony). When the North Andover Police ran their data base they discovered that JT had a similar uncharged event from several years prior. This posed a major problem for JT – who is married and has a child. Two Open & Gross convictions requires Sex Offender Registration for 20 years and if he was placed on Probation the law mandates that he wear a GPS Tracking device during the term of his probation. JT retained Attorney Robert Lewin. Attorney Lewin met with the North Andover Police to see if prosecution for the old uncharged event could be avoided. Attorney Lewin also met with the Assistant District Attorney to try to work out a favorable plea bargain in the case. On November 29, 2012, Attorney Lewin and JT appeared in Lawrence District Court. After a full plea hearing the Judge ordered that JT’s case be continued without a finding for one year. JT agreed to have a mental health evaluation and comply with any recommendations for outpatient treatment. In one year if JT stays out of trouble the charge will be dismissed and JT will be eligible to request that the court record be sealed. Because the case was continued without a finding JT was not convicted and he does not have to register as a convicted sex offender and he does not have to wear a GPS Tracking bracelet. JT left the court very relieved

October 19, 2011

INDECENT ASSAULT & BATTERY-WOBURN DISTRICT COURT

by Robert D. Lewin

JN, a deliveryman for a home delivery service, made routine and frequent deliveries to a disabled woman at her home. One day while making a delivery she asked him to do a favor which he did. He told her he felt he deserved something for the favor. She went to give him a kiss on the cheek. He then kissed her on the lips inserting his tongue into her mouth. She retreated to her bedroom; he followed her and then proceeded to fondle her breasts (over her clothes), he lifted her shirt exposing her breasts, and he fondled her crotch area. He offered to show her his genitals but she declined. He then left. She was terrified. The matter was reported to the police. JN went to the police and confessed. He was summonsed to court and charged with two counts of indecent assault and battery on a person age 14 or over and one count of accosting and annoying a person of the opposite sex. A conviction of indecent assault and battery would have required (1) that JN register (for 20 years) as a sex offender with the Massachusetts Sex Offender Registry Board and (2) that JN wear a GPS device for the term of probation (if probation was imposed). JN retained Attorney Robert Lewin. JN did not want to go to trial but wished to resolve the case with probation without sex offender registration and without GPS Monitoring. JN was sent to

February 8, 2011

INDECENT ASSAULT & BATTERY ON A CHILD: THE STATE AND THE DEFENSE BOTH BLINK

by Robert D. Lewin

SN, a 60 year old man from Methuen, was arrested and charged with Indecent Assault & Battery on a Child Under 14. The child was his 12 year old niece who complained that he had sexually assaulted her when she was 7 or 8 years old. SN vehemently denied the charge. Indecent Assault and Battery on a Child Under 14 is a felony punishable by up to ten years in the State Prison. A conviction requires Sex Offender Registration for up to life and GPS Monitoring with an electronic bracelet. In pre-trial discovery Attorney Lewin was able to discover a police report wherein it was reported that the child had told her sister that she may have been dreaming. During her SAIN Interview the child denied ever saying to her sister that she may have been dreaming. The sister, who lived in New Hampshire, refused to be interviewed by the defense. Attorney Lewin filed proceedings in Lawrence District Court to force the sister to appear in Lawrence District Court for the trial. Papers were sent to Salem District Court in Salem, NH and a hearing was set for a judge in NH to order the sister to appear in Massachusetts for the trial. The sister then agreed to appear at the trial. On Januray 31, 2011 all the parties appeared in Lawrence District Court and the case was called for trial. Both sides answered ready for trial. The Assistant District Attorney approached Attorney Lewin and offered to reduce the charge to simple Assault and Battery. Simple Assault and Battery is a misdemeanor that does not involve sex offender registration and does not involve GPS Monitoring. The DA offered straight probation on a plea to simple assault and battery. As he was required to do, Attorney Lewin conveyed the offer of the DA to SN. SN, who for weeks had had visions of going to state prison and of having to register as a convicted sex offender and of wearing an ELMO (Electronic Monitoring Device), took the DA’s offer immediately. He tendered what is called an Alford Plea. An Alford Plea is when you plead guilty but do not admit to having committed the crime. The Court accepted the Alford Plea to simple assault and battery and placed SN on straight probation. SN walked out of the Courthouse and went home. The DA blinked first when she offered the reduced plea to Assault and Battery with a sentence of Probation. Some Defendants would have read the offer as a signal that the State’s case was falling apart and would have refused the offer and gone to trial. SN saw that, but decided not to take the risk of going to trial. He blinked and took the plea. These are not easy decisions. We always tell clients “Don’t plead guilty to a crime you did not commit.” Sometimes, however, clients feel compelled to plead when an offer is made that is too good to turn down. That appears to be what SN thought in this case. It is hard to say that he was wrong. A felony conviction – which was certainly possible – meant jail time, sex offender registration, and GPS monitoring. With the plea to a misdemeanor he locked in Probation with no registration and no GPS. What would you have done? Would you have blinked?

January 25, 2011

GPS GOES CRAZY

by Robert D. Lewin

A convicted rapist is on probation and is required to wear a GPS tracking device. As part of the GPS law he is prohibited from going to certain places; these places are called exclusion zones. On January 3, 2011 he was at home when his probation officer called him and told him that he had violated an exclsuion zone and the police were coming to arrest him. He exlaimed to his probation officer that he had not left the house and had not been anywhere near the exclusion zone (the home of the victim who lives across and down the street). Attorney Lewin called the Probation Officer and insisted that they check the accuracy of the GPS device. It turned out that the GPS device was giving off what are called “floating points”; these are points on the tracking maps that are not accurate. They are false tracking points. In this case the tracking points showed the offender literally walking across a pond. In addition the tracking points showed the offender moving a distance of 100 yards in 2 seconds. On Friday, January 7, 2011 after a full court hearing, the Probation Department admitted that the offender had not violated his GPS restrictions and the probation violation was dropped. The accuracy of the GPS tracking system can and must be called into question in these cases.