Massachusetts Criminal Lawyer BlogOn September 19, 2013 JP, a 64 year old retired electrician from Revere was at the Essex County Probate Court in Salem for a hearing in a divorce case with his wife. There was an outstanding abuse prevention order that was in effect that she had taken out against him. The order prevented JP from having any contact with his wife. JP was in the hallway of the courthouse waiting for his divorce lawyer. JP’s wife and three friends of hers were also in the hallway. At one point JP’s wife walked down the hallway to the lady’s room. When she returned she walked past JP and she claimed that he began to swear at her and make rude comments to her. JP’ wife returned to her friends and JP saw one of the friends take out her cell phone. JP walked out of the hallway and left the building. The courthouse security and the Salem Police responded to the courthouse; a warrant was issued for JP’s arrest for violation of an abuse prevention order. Subsequently JP turned himself in to the Court and was arraigned and released. JP then retained Attorney Robert Lewin. One of the people with JP’s wife had been videotaping JP while they were all sitting in the hallway. Attorney Lewin filed a detailed motion for a copy of the video. Attorney Lewin pressed the DA’s Office for a copy of the video and ultimately the DA’s Office responded that the video “no longer existed”. JP was terrified of going to trial; and insisted that he would not go to trial. Attorney Lewin explained to JP that in this case he should not fear going to trial that they had a great shot at winning the case. Attorney Lewin prepared JP at length for the trial. There were trial rehearsal sessions in the office. Attorney Lewin taught JP how to look at the Jury and how to give answers to questions to the Jury. Attorney Lewin summonsed 4 witnesses (2 police officers and 2 civilians) to establish that JP’s wife had made two prior false allegations of violations of the abuse prevention order. The jury trial took place in Salem District Court on January 13, 2014.Through cross examination Attorney Lewin was able to destroy JP’s wife and her witness with the video camera on the witness stand. JP took the witness stand and was ready and unshakeable. He came across as sincere and honest. The jury went out to deliberate and twenty minutes later they were back with a verdict of not guilty. JP was thrilled.
DUI 4th OFFENSE – DISMISSED
On November 8, 2012 in the early afternoon, DB, a 47 year old roofing company foreman, was pulled over by the Malden Police on the basis of an anonymous tip. He had just pulled out of the parking lot of a local bar in Malden where he had been drinking for about one and a half hours. He was asked to exit his vehicle which he did. He was asked to perform field sobriety tests and he refused. He was asked to submit to a breath test and he refused. Based on the observations of his condition by the police he was arrested and charged with operating under the influence. He was brought to the Malden PD where a check of his criminal record revealed that he had three prior convictions dating back to 1984. As a result of his refusing the chemical test he was immediately subjected to a lifetime loss of his license. Massachusetts law imposes a mandatory lifetime loss of license on anyone who refuses a chemical test following an arrest for OUI if that person has three prior convictions for OUI in his lifetime at the time of the arrest. DB also faced a potential 5 year state prison sentence or a 2 1/2 year sentence to the House of Correction. An OUI 4th offense carries a mandatory minimum 2 year sentence of which 1 year must be served before parole eligibility. DB retained Attorney Robert Lewin.
Attorney Lewin immediately got the police reports and reviewed them with great care. Attorney Lewin obtained the turret tapes from the Malden PD to hear the dispatch information that was given out to the officers in the street and in particular to the officers involved in pulling DB’s car over. The stop of DB’s car by the police did not seem right. Before the police can stop a motor vehicle on the roadway they must have a “reasonable suspicion based upon articulable facts that a crime has been, is being, or is about to be committed”. The police were claiming that they had received a “tip” that a man who appeared to be drunk was entering a motor vehicle behind the bar and was headed out onto the street. When the police dispatcher first gave out the call he said that a bank teller had witnessed the drunk man getting into the motor vehicle; when the officers pulled DB over they radioed the dispatcher as to who had given out the tip. The dispatcher radioed back that it was a bank customer. This created a real doubt about whether a tip had actually been received. Attorney Lewin filed a Motion for a Copy of the 911 Tape; no recording (such as a 911 call) of the tip was ever found or produced. Attorney Lewin prepared and filed a Motion to Suppress all the evidence obtained by the police following the stop of DB’s vehicle. This included the identity of DB as the operator of the vehicle and all observations of his condition. On January 6, 2014 (some 14 months after his arrest) there was a full evidentiary hearing in Malden Court on the Motion to Suppress the evidence. The Judge hearing the Motion made the following findings and rulings: “The police had no reasonable suspicion to stop the Defendant’s motor vehicle; the so-called reporting party was never identified; no description of the operator of the vehicle was ever furnished; there was no evidence of any reasonable suspicion to stop the driver of the Defendant’s motor vehicle.” The Judge then granted the Motion to Suppress ALL the evidence the police obtained following the stop of DB on the street. In other words the Judge threw out all the evidence on the grounds that the stop of DB’s motor vehicle was illegal. The Middlesex County DA’s Office filed a Motion to Reconsider which the Judge denied. On March 21, 2014 the DA’s Office filed a “Nolle Prosequi”. A “Nolle Prosequi” is a termination of the prosecution of a criminal case by the Commonwealth. The “Nolle Prosequi” reads as follows: “The motion to suppress was allowed and all evidence was suppressed. As a result, the Commonwealth cannot proceed.” Two hours ago DB and Attorney Robert Lewin walked out of Malden Court. DB, with a big smile on his face, thanked Attorney Lewin and asked Attorney Lewin to send him a copy of the “Nolle Prosequi” so that he could frame it.
WIFE ASSAULTS HUSBAND WITH KNIFE – CASE DISMISSED
On June 29, 2013 FW, a 41 year old Chinese woman threatened to kill her husband with a kitchen knife and struck him with her hands. He called 911 and the Reading police responded. Once the police arrived at the home it became readily apparent that FW was mentally ill and was experiencing a paranoid break with reality. Rather than arrest her the police submitted a Section 12 Petition (a mental health commitment petition) and brought her to Winchester Hospital, She was then transferred to a mental hospital where she remained in-patient for 44 days. She was diagnosed with paranoid schizophrenia. A regimen of medications was established and her condition improved markedly over the time she was in the hospital. The police filed an application for a criminal complaint for assault with a dangerous weapon (a felony) and for assault and battery to issue against FW in Woburn District Court. FW and her husband retained Attorney Robert Lewin. Attorney Lewin immediately had FW obtain copies of her hospital records. In addition Attorney Lewin obtained reports from FW’s mental health counselor. Attorney Lewin then reached out to the Reading Police and had a substantive discussion with the police about FW’s condition and her case. Attorney Lewin suggested to the police a resolution of the case that did not involve a criminal complaint being issued against FW at the hearing before the clerk-magistrate.The police agreed not to push for the issuance of a criminal complaint at the hearing before the Clerk-Magistrate. On March 18, 2014 Attorney Lewin and FW appeared before the Clerk-Magistrate at Woburn District Court. Attorney Lewin explained to the Clerk-Magistrate that he had spoken with the police ahead of time and the two sides were asking the Clerk not to issue the complaint. The Clerk wanted to see an updated report from FW’s counselor and Attorney Lewin had obtained a report the day before the hearing. Attorney Lewin gave the report to the Clerk who read it and then agree not to issue a criminal complaint against FW. The Clerk stated that if there are no reports of any law violations by FW over the next six months then on September 19, 2014 no one would have to return to court and the Application for Criminal Complaint would be dismissed and no charges would be issued against FW. As a result FW has no criminal record, was not charged, and did not have to appear in front of Judge. In these types of cases good communication between a criminal defense lawyer and the police prosecutor can be the difference between being prosecuted and not being prosecuted. Attorney Lewin’s five years as an Assistant District Attorney and his 39 years practicing criminal defense have given him the experience and know how to deal with all these situations. FW and her husband walked out of Woburn District Court very happy that FW was not charged.
PROBATION VIOLATION FOR INABILITY TO URINATE FOR DRUG TESTING
On February 26, 2013 KD, a 35 year old carpenter, was arrested for Distributing Cocaine and for Being Present where Heroin was found. On April 24, 2013 KD went to Lawrence District Court and the Cocaine distribution charge against him was continued without a finding for 18 months. The heroin charge was dismissed. KD was ordered to participate in a drug treatment program, to remain drug and alcohol free, and to be subject to random drug and alcohol testing. Shortly after the court date KD left the drug treatment program and for three months was among the missing. He did not report to probation; he was not being drug screened and he did not participate in the drug treatment program. He learned that there was a warrant outstanding for him and he turned himself into the court. The probation officer wanted to drug test him that day at Court and KD said that he was physically unable to urinate in the presence of another person. KD then went to the bathroom unattended and came back with a cigarette package full of urine that he claimed was his own. He got sent to Middleton Jail for a week. During the entire week at the jail he was unable to urinate in the presence of another person.
KD’s wife contacted Attorney Robert Lewin. Attorney Lewin went to the jail and met with KD and carefully documented KD’s complaint about being unable to urinate in the presence of another person. After 1 week in the jail it was clear to everyone that he was clean yet he still could not urinate in the presence of another person.
Attorney Lewin researched this issue and learned that Paruresis is a recognized medical syndrome of people who are unable to urinate in the presence of another person. The Probation Department was insisting that he submit to random drug/alcohol screening through the Essex County Office of Community Corrections (OCC). OCC will only do urine screening. Attorney Lewin researched other screening methods and proposed saliva screening. Saliva screening drug/alcohol kits are available for about $10.00 per kit (1 test per kit). KD ordered several kits and brought one into Probation. It took the probation officer about 30 seconds to read the instructions. A saliva test was administered to KD and he tested negative for alcohol and drugs. The probation officer liked the test; it was quick and easy and did not involve handling urine.
DOMESTIC ASSAULT & BATTERY WITH A DANGEROUS WEAPON CHARGE DISMISSED
On July 23, 2013, HL, a 50 year old Chinese National, was arrested for Assault and Battery and Assault & Battery with a dangerous weapon. HL and his wife, who live in Andover with their three children, got into a heated argument over money. It was alleged that HL grabbed a large book and began to hit his wife about her head with the book. She sustained minor cuts to her ear and arm. She called the Andover Police who responded immediately. HL had left the home but returned shortly after the police responded. The police spoke with HL’s wife who told them what happened. HL denied striking his wife. The police arrested HL and he was brought to the Andover Police Station. Assault and Battery with a Dangerous Weapon is a felony and is a deportable offense. Assault & Battery can be a deportable offense.This was of great concern to HL as he is not a US Citizen and he could be forced to return to China.
HL contacted Attorney Robert Lewin. Attorney Lewin immediately got the police reports and it became evident that if HL’s wife exercised her “marital privilege” and refused to testify against HL that the Commonwealth would have a difficult time proving their case. The Essex County DA’s Office is very hesitant to dismiss domestic Assault & Battery cases at the pre-trial hearing, even if the “victim” exercises her marital privilege. It is the “standard practice” of the Essex County DA’s Office to push the case to trial to see if the “victim” will ultimately chose to testify against their spouse. Attorney Lewin spoke with HL’s wife and she made it crystal clear that she wanted the case dismissed and that she would exercise her marital privilege and not testify against her husband.
Attorney Lewin prepared a marital affidavit for HL’s wife to sign wherein she stated that she would exercise her marital privilege and that she wanted the case dismissed. Attorney Lewin furnished the signed affidavit to the District Attorney and advocated for the DA’s Office to dismiss the case at the pre-trial as opposed to making everyone come back to court for a trial date.
HIT & RUN CASE DROPPED
KU, a 35 year old moving company owner, drove his pick-up truck to the Market Basket supermarket on the Lawrence/North Andover line. As he was pulling out of the parking lot he struck a parked car. He paused but then drove away. He drove home, left the pick-up truck at home, and drove his car to work. Two hours later he got a call from the North Andover Police. A witness had seen the accident and had seen KU leave and got the plate. At first KU denied it but then admitted to the officer that he had panicked and fled the scene. The North Andover Police issued a citation to KU for leaving the scene of a property damage accident. KU called Lewin & Lewin and spoke with Attorney Robert Lewin who told KU to immediately go to the Lawrence District Court and request a Clerk’s Hearing for the citation. KU did that and then retained Attorney Robert Lewin to defend the case.
Attorney Lewin went over to the Court and spoke immediately with the North Andover Police Prosecutor. Attorney Lewin obtained KU’s auto insurance policy to show that the damage to the other car would be completely covered. In addition Attorney Lewin obtained proof from the insurance company that the owner of the other vehicle had been completely reimbursed for his damages by KU’s insurance company. In many of these hit and run cases – particularly if there is no alcohol involved – the main concern of the police is making sure that the owner of the damaged vehicle or property is fully reimbursed. Attorney Lewin furnished all the insurance documents to the Police Prosecutor. Prior to the Clerk’s Hearing Attorney Lewin and the police prosecutor reached an agreement that they would recommend to the Court Clerk-Magistrate that no criminal complaint be issued against KU.
On Thursday, September 12, 2013, KU and Attorney Robert Lewin appeared in Lawrence District Court for the Clerk-Magistrate’s Hearing. Attorney Lewin and the Police Prosecutor explained to the Clerk-Magistrate that the victim had been fully reimbursed. The police prosecutor indicated to the Clerk-Magistrate that the police were satisfied. The Clerk then dismissed the application for criminal complaint. KU – although he was guilty of the offense – walked away without being charged. KU left the Court a very happy man.
ANOTHER ABUSE PREVENTION ORDER VACATED
VV, a 44 year old male immigrant from El Salvador, was in the US on a temporary work visa. In 2009 he married and shortly after getting married he bought a three family house in Lynn, MA and began the task of updating the house himself. He finished the first floor apartment and rented it out. He finished the second floor apartment and he and his wife and his wife’s son (from a prior relationship) moved into the second floor. He finished the third floor and his wife told him that she wanted him out of the house. When he refused to leave she went to Lynn District Court and applied for an abuse prevention order against him. She claimed that he had hit her. VV went into court and fought the order. After a full hearing the Judge granted the wife an abuse prevention order for one year. Thereafter, the wife reported to the police that VV had violated the order by going to the house and collecting the rent from the first floor tenants. A hearing was set up to determine whether VV would be charged criminally with violating the order. At that hearing the tenants came into court and testified that VV had not been to the house and had not collected the rent from them. The application for criminal complaint against VV was denied.
On September 4, 2013 the abuse prevention order came up for renewal hearing. On September 3, 2013 VV hired Attorney Robert Lewin to represent him at the renewal hearing. Working until 1:30 in the morning Attorney Lewin put together a memorandum for the Judge arguing that it was demonstrably true that VV’s wife lied under oath in Court. Attorney Lewin told VV to make sure the tenants came to court for the renewal hearing. On September 4, 2013 Attorney Lewin and VV appeared in Lynn District Court. VV’s wife was present. Attorney Lewin filed a notice of potential self incrimination. That was a notice to the Judge that if VV’s wife testified she could incriminate herself in the crimes of filing a false police report and perjury. VV’s wife went ahead and testified. Attorney Lewin cross examined her. VV testified and was a good witness for himself. At the end of the testimony it was clear that VV’s wife was not a credible witness. The Judge denied VV’s wife request to extend the order. The Judge wrote the following: “After two party hearing there is insufficient evidence to extend the order and the prior court order is terminated”.
With only 24 hours to prepare the case, Attorney Lewin did the work that had to be done and possessed the skill and knowledge to put together a winning case. As VV and Attorney Lewin were leaving the Lynn District Court VV turned to Attorney Lewin and said “God bless you Mr. Lewin!”; it just doesn’t get any better.
SALEM DISTRICT COURT CHARGES DISMISSED
GD, a man in his late thirties, was sitting one afternoon in his car in Beverly with his Mother. A group of people with young children walked by. As they walked by they said hello to GD. He responded, allegedly, by threatening to run them over with the car. It was then alleged that GD drove the car fast and erratically toward the group. GD was charged with two counts of Assault with a Dangerous Weapon (the car); Reckless Operation; and Disorderly Conduct. It appeared that GD suffers from paranoia and a personality disorder. GD was claiming that the car he was in was infested with spiders and that he was bitten.
GD went to Salem District Court and was arraigned on the charges. He – with the help of his family – then retained Attorney Robert Lewin. Attorney Lewin then thoroughly reviewed all the witness statements and the police reports.Something did not seem right with the reports. Attorney Lewin filed a DiBenedetto Motion to Dismiss all the charges. A DiBenedetto Motion is a request to dismiss a criminal charge when the evidence presented to the Clerk-Magistrate does not create probable cause.
On July 16, 2013 (30 days after his arraignment) GD and Attorney Lewin appeared in Salem District Court. The case was called and Attorney Lewin told the Judge the Defense was prepared to go ahead with the Motion to Dismiss. The Assistant DA asked for a second call which the Judge granted. After reading Attorney Lewin’s Motion and the police reports the Assistant DA agreed to a dismissal of all the charges. GD and his family left the Court very happy.
MURDER CONVICTION AVOIDED
In In October 2009 a group of men in their 20s got together at TB’s apartment in Lowell for some beer and weed. One of the members of the group, AH, knew of two drug dealers in Lowell and thought that an invasion of the drug dealers’ home would yield both drugs and money. AH recruited two other men to break in with him. A fourth man, JS, was recruited to drive the group to and from the drug dealers’ home. TB, who’s apartment they were all in donated several black hoodies to the enterprise and he donated a handgun. AH already had a handgun. With JS dtriving, AH and the two other men went to the area of the drug dealers’ home. JS parked and stayed in the car. AH and the other two men left the car and went to the home of the two drug dealers. AH entered the house and a fight broke out. AH shot and killed both drug dealers. with his gun. It was never established whether or not the other two men went in. AH and the other two men ran back to JS’s car and all four men returned to TB’s apartment. They got no drugs and no money yet all four were potentially on the hook for two murders. Under Massachusetts Law, broadly speaking, everyone who participates in the home invasion – including the driver of the car (JS) and the supplier of the hoodies and a gun (TB) is guilty of first degree murder and subject to a life sentence without parole. The evidence against AH (the shooter) was strong. The evidence against TB (the supplier of the hoodies and the gun) and JS (the driver) was medium to strong. The case against the other two men was weak to medium. All five men were indicted for two counts of first degree murder and a number of other charges. JS had a chance very early on – before he was charged – to cut a deal with the government and avoid the murder charge. His lawyer, from Lowell, let too much time go by and the state indicted JS for two counts of first degree murder and the home invasion. When the reality of the situation began to set in JS realized that he – at the age of 23 – could spend the rest of his life in prison and never see the outside of a prison cell again. JS’s family sought out a lawyer for JS and ultimately hired Attorney Robert Lewin.
Attorney Lewin reviewed all the evidence in the case and concluded that if JS went to trial there was a strong likelihood that he would be convicted of first degree murder and spend the rest of his life in prison. At first JS did not want to testify against the other defendants. JS’s family did not want him to testify against the other defendants. Attorney Lewin began the long and difficult process of explaining to JS and his family that even though he did not have a gun and he did not go in the apartment and he did not shoot anybody, he could nevertheless be found guilty of first degree murder and spend the rest of his natural life in prison. This can be a difficult concept to understand but it is the law. Attorney Lewin began a negotiation with the DA’s Office. The DA offered to reduce the murder charges to manslaughter, but the DA wanted a 12 to15 year sentence and JS would have to testify against the other Defendants. JS and his family and Attorney Lewin all agreed that the 12 to15 year sentence was too long, particularly if JS was going to testify.
The negotiations went on for over six months when finally an agreement was reached. JS would testify against the other Defendants and JS would plead guilty to two counts of manslaughter and receive a 7 year to 7 years and 1 day sentence. The trials of the other Defendants were separated. AH, the shooter, was convicted of two counts of first degree murder, and was sentenced to two life sentences without parole. He will never be free again. The other two men against whom the evidence was weak were both found not guilty and after spending three years in prison were released. They both dodged a huge bullet. Incredibly within two months both men were arrested for new crimes and are back in jail awaiting trial in the new cases.
Harassment Prevention Orders Vacated
LL, age 63, lives with his wife in a small, but pretty home in Methuen. EF and his girlfriend AW live next door in a similar small, but pretty home. From July 2011 to May 2012 disputes arose between LL and his neighbors. In particular, LL found it upsetting that EF would park his truck and boat trailer in the area partially in front of LL’s house. LL allegedly made threats to flatten the tires of his neighbors’ vehicles and allegedly made other threats and harsh and objectionable comments against the neighbors. In July 2012 EF and AW went to Lawrence District Court and each obtained an harassment prevention order against LL. The orders were good for one year. The orders came up for an extension hearing on July 23, 2013.
LL contacted and retained Attorney Robert Lewin. Attorney Lewin went out to LL’s house to view the neighborhood and to see the two houses. According to LL, since the orders had been entered a year earlier LL had had no contact with his neighbors. Under Massachusetts Law a party seeking to extend an harassment prevention order has the burden of proving that there is a current need for the order. (On the other hand, the fact that an existing order has not been violated is not by itself reason enough to vacate an order.) Attorney Lewin prepared LL to testify at the hearing.
On July 23, 2013 Attorney Lewin and LL and the two neighbors appeared in Courtroom 6 in Lawrence District Court. The two neighbors testified as did LL. Attorney Lewin had prepared a Memorandum of Law for the Judge and argued forcefully that the fact that the neighbors had obtained an order one year ago does not mean that they are entitled to an order today. Attorney Lewin argued that the neighbors had not produced sufficient evidence to prove that today they still needed an order. The Judge agreed and vacated both harassment prevention orders against LL.