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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.

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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.

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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.

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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.

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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.

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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.

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WK, a 50 year old engineer and his wife, lived in Andover. One Saturday evening in February 2013, after a night of dining out and drinking, WK and Mrs. K returned home. An argument ensued. According to the Police Reports WK punched his wife in the face giving her a swollen, black eye. The police reports further indicated that WK stuck his thumbs into his wife’s mouth and she bit down hard on his thumb breaking the skin. She grabbed a phone in an attempt to call 911; he grabbed the phone from her. She ran to the garage in her nightgown and bathrobe, got in the car, and fled to the Police Station. At the station, color photos were taken of her face and eye. Mrs. K gave a complete statement of what happened. The police were dispatched to the family home. WK was arrested and charged with Assault & Battery, Witness Intimidation, and Threat to Murder. According to the police report she told police he threatened to murder her. Also according to the police report when asked to give his version of what had occurred WK told police he “bashed” his wife. WK was held without bail over the weekend at the Middleton Jail. On Monday morning he was brought to Lawrence District Court and arraigned and released. He was ordered not to abuse his wife. The case was continued for a pre-trial hearing.

WK retained Attorney Robert Lewin. As often happens in these cases, as time passed Mrs. K decided she would not testify against her husband and she executed a marital affidavit that Attorney Lewin prepared. The parties appeared in Lawrence District Court for the pre-trial hearing and the Judge, after speaking with Mrs. K, accepted her exercise of her marital privilege and excused her from testifying. The D.A.’s Office refused to dismissed the case and the case was set down for trial.

On Wednesday, June 26, 2013 WK and Attorney Lewin appeared in Lawrence District Court ready for trial. Mrs. K was not present. Two Andover police were present. Attorney Lewin prepared a Motion in Limine to Exclude all statements made by the wife to the police at the police station. Attorney Lewin also prepared a Motion in Limine to Exclude the Photo the police had of Mrs. K. The basis for excluding the statements made by the wife to the police was that the statements were hearsay and that the statements were not “spontaneous utterances” (an exception to the hearsay rule). To the great surprise of the Defense the DA’s Office did not object to the Motion to exclude Mrs. K’s statements to the police. (The particular judge who was hearing the case would most likely have denied the Motion and would have allowed the statements into evidence; it was an unforeseen break in the case when the DA did not oppose the Motion.) The Assistant DA did object to the Motion seeking to exclude the photograph. Attorney Lewin argued that there was no way the Commonwealth could prove – given the witnesses on the State’s witness list – that the woman in the picture was the Defendant’s wife. Remember, Mrs. K was not present at the trial. The police were not allowed to testify as to ANY statements Mrs. K made to the police (including for example her name, address, and the fact that she was married to Mr. K). There was no witness who had knowledge (independent of what Mrs. K had said to the police) that the woman in the picture was Mrs. K. The Judge reserved a ruling on the Motion to Exclude the photo. A jury was chosen and sworn. The DA finally realized that the Commonwealth’s case had fallen apart and the Commonwealth said they could not go forward. Attorney Lewin immediately moved that all the charges be dismissed with prejudice. A dismissal with prejudice means the case can NOT be brought again. The Judge ordered all three charges dismissed with prejudice.

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On August 31, 2012, AS, a 67 year old retiree, went out for a few drinks at a local pub in Haverhill. Late at night he left the pub highly intoxicated, got into his SUV, and tried driving to his home in Methuen. In the center of Haverhill is a War Memorial which is situated on a grass plot. AS drove his SUV off the roadway, over the curb and sidewalk, into the War Memorial area. In the area was a homeless man sleeping a a bench. The front of AS’s SUV struck the bench going up over the bench over the homeless man sleeping on the bench. AS backed his car up and left the area as if nothing had happened. AS continued on his way eventually striking a roadsign and knocking it down. Once again he continued on his way. He travelled from Haverhill into Newton, NH where he drove off the road into a ditch. Witnesses had seen his car drive over the bench with the homeless man and called in his registration plate to the police. Other witnesses saw him strike the sign and called that into the police. A BOLO (Be On The Lookout) was put out by the Haverhill Police and picked up by the Newton, NH Police who had discovered AS in his car in the ditch. AS was removed from his car; he had urinated himself; he was arrested for DUI in NH. The Haverhill and Mass. State Police responded to NH to continue their investigation. It was not known if the homeless man on the bench would survive his injuries.

AS was charged with Aggravated DUI in NH (the Aggravatiung circumstance being a high Breath Test reading). In Massachusetts AS was charged with OUI/Negligent Operation Causing Serious Bodily Injury, Two counts of Leaving the Scene Property Damage, Leaving the Scene Personal Injury, two Counts of Aggravated Reckless Assault & Battery by Dangerous Weapon, and a number of civil motor vehicle infractions.

AS retained Attorney Robert Lewin. Attorney Lewin brought in Associate Counsel to handle the NH piece of the case.

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On December 3, 2009 MS, then 20 years old, was convicted of Assault & Battery with a Dangerous Weapon and Armed Home Invasion in Salem (MA) Superior Court. On the A&B D/W charge she was given a 2 1/2 year sentence to the House of Correction: 18 months to be served and the balance (1 year) suspended to August 2013. On the Home Invasion charge, which carries a 10 year mandatory minimum sentence to State Prison, she was given probation to August 2013. She served 9 months of the 18 month sentence and was paroled.

On April 22, 2013 MS – 4 months prior to the date her probation is to end – MS got arrested for a DUI in Haverhill. She blew a high breathalyzer. One of the conditions of her probation was that she was to remain alcohol free. She was clearly in violation of probation. MS was very frightened that her probation in the Superior Court would be revoked and that the Judge would sentence her to finish the one year suspended sentence that was still hanging over her head – not to mention the 10 year State Prison sentence that was hanging over her head.

MS was also concerned about the DUI case; her concern was that the Judge in Haverhill District Court would see that she was on probation for a very serious crime and that the Judge in Haverhill would give her a harsh sentence.

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On March 17, 2013 YH, a 23 year old foreign student in his Senior Year at Boston College, let his temper get the best of him. YH was looking for a parking space on Boylston Street in downtown Boston. A lady was preparing to back into a space when YH quickly pulled into the space. The lady got out of her car and asked YH to get out of the space. He did and drove around the block and found another parking space. YH got out of his car and then proceeded to walk back up Boylston Street. YH saw the lady’s car parked in the space. As YH walked by the car he took his keys and scratched the side of the lady’s car. He did not see that the lady was sitting inside the car. She immediately got out of the car and called 911. The police responded and took statements from both YH and the lady. Subsequently, YH received a Notice from the Boston Municipal Court that an application for a criminal complaint had been filed against YH by the Boston Police for Malicious Destruction to Property Over $250.00. This charge is a felony. If a criminal complaint issued against YH for the charge he could be deported. YH contacted the Office of Lewin & Lewin and met with Attorney Robert Lewin. Attorney Lewin explained to YH the importance of YH having a lawyer speak with the Boston Police prior to the hearing to see if a result could be negotiated that would avoid a criminal complaint from being issued against YH.

YH retained Attorney Robert Lewin. Within one hour of being retained Attorney Lewin called the Boston PD. The Officer in charge of the case worked the 4-11 shift and was due in at 4 the next day. At 4 PM the next day Attorney Lewin spoke with the officer in charge of the case. They worked out an agreement that if YH paid for the damage done to the car ($712.00) then the police would agree to recommend that the Clerk not issue a criminal complaint against YH. On Monday, May 20, 2013 YH and Attorney Robert Lewin appeared in the Boston Municipal Court in the Criminal Clerk’s Office. Attorney Lewin reported to the Clerk the agreement that had been reached between the police and the Defense. The Clerk felt the agreement was fair. The hearing was continued for 2 months for YH to pay the restitution of $712.00. Upon payment for the $712.00 in restitution the Application for Criminal Complaint will be dismissed and NO criminal complaint will be issued against YH.

As a result of this disposition YH was NOT charged; NO entry was made on his criminal record and this case will not impact his immigration status. This may sound like a simple case; the key to a successful resolution was contacting the police and working the case out with the police prior to the hearing. After practicing criminal law for 42 years (on both sides of the fence) Attorney Lewin knows what the police want to hear – and more importantly, what the do not want to hear.

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