DOMESTIC ASSAULT & BATTERY AGAINST WIFE DISMISSED IN LOWELL DISTRICT COURT

On February 3, 2013, JC, a 45 year old married woman, got into a heated argument with her husband. She had been drinking and eventually he ended up with a large bloody laceration to the back of his head. Some nick nacks got broken and a door got smashed. This was not one of her better nights. A call was made to the local police by JC’s daughter and JC got arrested and charged with Assault & Battery with a Dangerous Weapon (a felony) and Assault & Battery (a misdemeanor). The next morning JC appeared in Lowell District Court and was arraigned and released. Her case was continued for a pre-trial hearing to March 6, 2013. JC contacted Lewin & Lewin. JC does not drive so Attorney Robert Lewin made a house call to meet with JC and her Husband. Attorney Lewin explained the marital privilege to JC and her Husband and explained that if the Husband exercised his privilege not to testify against JC that it was possible the case would be dismissed. Every Husband and every Wife in Massachusetts has a privilege not to testify against their spouse at a criminal trial. This is called the marital privilege. JC retained Attorney Lewin. Attorney Lewin prepared and the Husband signed a marital privilege affidavit. Attorney Lewin contacted the District Attorney’s Office and sent them a copy of the Affidavit signed by the Husband. On March 6, 2013 JC and her Husband and Attorney Lewin appeared in Lowell District Court. Attorney Lewin gave the original marital affidavit to the Judge and explained the case to the Judge. Attorney Lewin told the Judge that the Husband was present in the Courtroom and wanted to exercise his marital privilege not to testify against his wife. The Judge asked the Husband if he wanted to refuse to testify against his wife and the Husband said yes. Attorney Lewin asked that the case be dismissed; the District Attorney objected stating that there was an independent witness (JC’s daughter) and that the Commonwealth could proceed with the case against JC without the Husband’s testimony. Attorney Lewin had previously interviewed the daughter and knew that she would testify that she was upstairs in her bedroom when the fight occurred and that she did not see any of the goings on between her mother and father. She heard loud shouting and that is what led her to call the police; but she did not see anything. The District Attorney asked that the case be continued for trial so that they could bring the daughter in. Attorney Lewin objected strenuously and told the Judge that the daughter had not seen anything and that her testimony would not help the Commonwealth prove the case against JC. Attorney Lewin suggested that the District Attorney call the daughter on the phone and speak to her (something they should have done earlier) so that the case could get resolved that day. The Judge agreed that that was a good idea. The District Attorney called the daughter and she confirmed that she had not seen anything, that she had been in her bedroom. The case was called again and the District Attorney filed a nolle prosequi. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth. JC and her husband walked out of the courtroom arm and arm and very happy. The case had been thoroughly prepared; the husband and the daughter had been interviewed at the start by Attorney Lewin and he knew what each of them was going to say.