Massachusetts Criminal Lawyer Blog

A 58 year old Woburn mother was accused of assaulting her 32 year old daughter in Woburn District Court. The mother insisted she was simply trying to prevent her daughter from going to the home of the daughter's child's father, a useless bloke who pays no child support. The daughter told the police that as the daughter was leaving the house her mother grabbed the daughter's pocketbook which the daughter had over her shoulder causing the daughter to hit the refrigerator and fall to the floor. The police report indicated that the mother was drunk. For years the Mother had put up with her daughter's substance abuse and the Mother was the primary caretaker of the daughter's child. The Mother's frustration with her daughter was understandable. On the day of the pre-trial hearing the Mother indicated she just wanted to get the case over with and plead guilty. Attorney Lewin insisted that she not plead to the case as he felt that no jury would convict her. The case was continued for trial and on Friday, April 16, 2010 the District Attorney's Office in Woburn District Court filed a nolle prosequi ending the case. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth; it is similar to a dismissal.

MD, a 52 year old man from Winchester, was accused of stealing his daughter's roommate's lap top computer. He was charged in Malden District Court with larceny over $250 (a felony). A conviction would have cost him his job. The police accused him of stealing the lap top from the victim's apartment and then giving it to his daughter's mother to sell. He absolutely denied any intent to steal and claimed that he had taken the computer in the mistaken belief that it belonged to his daughter. His daughter was moving out of the apartment and had enlisted the help of her father in moving her stuff out. He honestly believed that the lap top belonged to his daughter. In Massachusetts larceny requires proof of an intent to steal. The law in Massachusetts is that if you take another person's property in an honest and reasonable belief that another person on whose behalf you are acting had a legal right to the property - even if that belief was in fact mistaken - then you are entitled to be found not guilty because you lacked an intent to steal. MD's case was scheduled for jury trial on April 13, 2010. MD and Attorney Lewin appeared at Court ready for trial and the DA's Office dismissed the case.

On April 8, 2010, BT, a 46 yearl old salesman, appeared in Lawrence District Court charged with Assault and Battery and Assault and Battery with a Dangerous Weapon (a computer mouse) on his 44 year old wife (who happened to be a lawyer). Mrs. T exercised her marital privilege and signed an affidavit that had been prepared by Attorney Lewin to the effect that she would not testify against her husband and that she wanted the case dismissed. Before April 8, Attorney Lewin put Mrs. T in touch with the victim/witness advocate from the DA's Office so that the DA knew that she was not on board with the Commonwealth. After a brief hearing the case was ordered dismissed by the Judge in Lawrence at the pre-trial hearing. Although the DA's Office often takes the position that they will not dismiss Domestic Assault and Battery cases at the pre-trial hearing, with proper preparation the DA can sometimes be convinced to dismiss at the pre-trial and not require everyone to return to court for a trial date.

Two California Driver's Get Lucky In Massachusetts

MP, a forty year old man, had default warrants outstanding in criminal cases in Lowell District Court, Somerville District Court, Chelsea District Court and Woburn District Court. The warrants dated back to 1989 and 1990 when MP lived in Massachusetts. In mid 1990 he moved to California leaving all the warrants outstanding in Massachusetts. In 1991 he was convicted of rape in California and then served 16 ½ years in prison in California. In 2008 he was released from prison and tried to get a California license. His driving privileges in Massachusetts had been revoked because of all the warrants. Attorney Lewin filed Motions in all the Massachusetts Courts where he had outstanding warrants to get the warrants cancelled and to get the criminal cases dismissed. Every warrant from each court was cancelled and all the criminal charges were dismissed. After tying up some loose ends at the Registry of Motor Vehicles, MP's driving privileges in Massachusetts were reinstated on March 23, 2010 and he was then able to obtain a California license. MP never had to come to Massachusetts. Attorney Lewin was able to get all the cases resolved in his absence. MP is now driving around in his 1966 Chevrolet Super Sport!

JM, a fifty-eight year old chemical engineer, resides in California. In 1990 he came to Massachusetts to attend a course in Cambridge. While driving on Storrow Drive he was involved in a collision and did not stop. He was subsequently stopped by the State Police and issued a citation for Leaving the Scene of a Property Damage Accident. When his course in Cambridge was finished in he returned to California and never attended to the Leaving the Scene case. The case went into default status and a warrant issued against him. In 2009 JM went to renew his California license and California refused to renew it because of the outstanding warrant in Massachusetts. JM wrote to the Court (Charlestown District Court) and he called the Court and they told him he would have to come out to Massachusetts. JM retained Attorney Robert Lewin and within 28 days the warrant was recalled and the case was dismissed without JM having to come here. One trip to the Registry of Motor Vehicles cleared his Massachusetts Suspension and on March 25, 2010 California reinstated his driving privileges. JM is a happy camper.

Juvenile Delinquency cases are criminal cases where the offender is under the age of seventeen at the time of the offense. Juveniles face the same types of penalties that adults do - the system just gives some of those penalties different names. Juveniles found "delinquent" (guilty) can be fined, placed on probation, given suspended sentences, or given committed sentences. A juvenile who is committed is sent to a "secure facility" within the Department of Youth Services. Make no mistake about it, a "secure facility" is a jail with locked doors and bars on the windows.

Juveniles who commit serious felonies involving serious harm or the threat of serious harm to others can be prosecuted as "youthful offenders". Once the Juvenile Court determines that a juvenile is a youthful offender the court proceedings become public and the juvenile can be sentenced as if he/she were an adult. This can include a full adult state prison sentence.

2009 saw a spike in serious juvenile/youthful offender crime particularly in the Lowell and Lawrence areas. Attorney Lewin just finished a forcible rape case in Lowell Juvenile Court where a fifteen year old boy was accused of raping a five year old girl. The case was not a triable case as the boy had given a firm written detailed confession. The victim's family asked the Judge to impose a lengthy adult prison sentence; the District Attorney asked for a committed sentence. With the assistance of two very favorable psychological evaluations and reports Attorney Lewin was able to convince the Judge to impose probation with no sex offender registration. 2009 also saw two successfully defended gun cases in Lowell Juvenile Court by Attorney Lewin and he is presently defending a 16 year old high school student on a charge of Attempted Murder by Strangulation in Lawrence Juvenile Court.

Make no mistake about it, juvenile cases can be serious and require the same level of attention and skill and effort that any adult criminal case requires.

In Massachusetts there are two types of arrest warrants: Default Warrants and Straight Warrants.

DEFAULT WARRANTS

A default warrant is issued when a person fails to appear in Court after having been given notice to appear; for example, a person is arrested for operating under the influence and is brought to a police station. The police call in a bail commissioner who sets cash bail. The person puts up the cash bail and signs a "recognizance" form. A "recognizance" form is a "promise to appear" in a specified court at a specified time on a specified date. The person then fails to appear in court on that specified date and the court issues a default warrant.

STARIGHT WARRANTS

A straight warrant is issued when the police go to a court and ask the court to issue a criminal complaint against an individual and the police want to arrest the person rather than have him/her summonsed into court. The court issues a "straight" warrant to the police and the police go out and try to locate the person and arrest the person.

Another example of a straight warrant is when a person is on Probation and fails to report or respond to his/her probation officer. The Probation Officer can go to the Judge and ask the Judge to issue a straight warrant for the person's arrest.

WARRANTS CAN CREATE HAVOC!

Having a warrant outstanding against you can create havoc for you. Your license can be revoked. If you receive benefits from the government, your benefits can be shut off. If you are picked up on a default warrant it is unlikely you will be released until you are brought to court and brought before a judge. It is not unusual for the police to wait till the Friday afternoon of a long weekend to arrest someone on a warrant. The person will sit in jail Friday night, Saturday night, Sunday night, and Monday night and not be brought to court until Tuesday morning.

Attorney Lewin often gets calls from people with outstanding warrants and arranges to bring them before the judge before they get arrested and he gets them released.

If you have an outstanding warrant or warrants call Attorney Lewin. Completely private/confidential communications can be had over the phone or in person and we can bring you into court and get the warrant(s) cleared. If you have a family member who has just been picked up on a warrant call Attorney Lewin for prompt advice.

A Saugus man in his fifties who works in Boston had a confrontation with a younger man in his thirties in Boston that led to a brief fistfight. They did not know one another and the fight ended quickly and they each went their own way. The fight took place in the summer of 2009. Thereafter the Saugus man noticed the younger man at the train platform at North Station while waiting for his train. One October night the Saugus man got on his train and noticed the younger man get on the same train. The Saugus man took the train to his stop in Melrose and the younger man got off at the same stop. The Saugus man was concerned that the younger man was going to follow him to his home. The Saugus man had a dog leash in his jacket pocket with metal studs on it. The Saugus man confronted the younger man and proceeded to beat the younger man with the collar, clearly getting the better of the fight and causing some injury to the younger man. Someone called 911 and the Saugus man got arrested for assault and battery with a dangerous weapon (a felony). The Judge in Malden Court - who clearly felt there was more to the story than met the eye - ordered the case continued generally for six months to be dismissed. This disposition of a general continuance of the case was quite favorable as there was no admission of guilt or wrongdoing by the accused. His plea of not guilty remained in full force and effect and at the end of the six months the case will be dismissed. This is similar to a continuance without a finding, except that a continuance without a finding does require an admission that the evidence is sufficient to warrant a finding of guilty. In this case there was no admission.

What is a "Criminal Record"?

Records of criminal cases are kept in a number of different places in Massachusetts: these include the police department involved in the case; the District Attorney's Office or the Attorney General's Office; the Court or Courts where the case was prosecuted; the Massachusetts Board of Probation; and the Massachusetts Criminal History Systems Board. With certain very limited exceptions criminal records in Massachusetts are never expunged or destroyed. So, if you have been to court and your case was dismissed or you have been found not guilty the records of the case are not expunged or destroyed. The records of the case remain and they remain forever unless they are ordered sealed.

(1) The records of a criminal case kept by a police department - and these would include such things as the police investigative reports, police reports of witness statements and interviews, arrest reports, booking reports, etc. - are kept by the police departments for as long as the police department wishes to keep them. These records are unaffected by what goes on in Court. These records are also unaffected by any court order that the "court" record be sealed. Generally speaking, the public does not have access to most of these police records.

(2) Likewise the records of criminal cases prosecuted by the District Attorney's Office or the Attorney General's Office are kept for as long as the the respective office wishes to keep such records. Normally such records are maintained for decades and decades and are kept in State Archives. These records are unaffected by what goes on in Court. These records are unaffected by any court order that the "court" record be sealed.

(3) Records of Criminal Cases kept in the Clerk-Magistrate's Office of the Court: Every criminal case in every court in Massachusetts is given a case folder and a number. The case folder contains all the papers that are filed with the Court and all written orders, findings, and decisions that are generated by the Court. These case folders are called "Dockets" and they are maintained by the Clerk-Magistrate of the Court and they are kept in the Office of the Criminal Clerk-Magistrate of the particular Court. These are public records. In the Clerk's Office of the Court there is typically a card file cabinet (open to the public) where one can look up a person's name and find the Docket Number of all criminal cases in that Court under that person's name. Any member of the public can then request to see the Court Docket (folder) for that particular case and can purchase copies of all the papers in the Court folder. When a criminal record is ordered sealed, the court folder for that case is literally papered over so that it is no longer visible. (The folder is not destroyed, but it is taped closed and papered over.) The card in the card file for that case is also papered over.

(4) Massachusetts Board of Probation: The Massachusetts Board of Probation has a central office in Boston which services the entire state. Every Criminal Court in Massachusetts has a probation department that reports to the Board of Probation. The Board of Probation in Boston maintains the records of all criminal court activity for all persons who are charged in any criminal court in Massachusetts. Every person who has ever had a criminal case in any Massachusetts Criminal Court has a PCF Number. PCF stands for Probation Central File and a PCF is created upon arraignment. When a police department or a District Attorney's Office want to see if someone has a prior criminal record, an inquiry is made of the Board of Probation and the Board generates a copy of the PCF (Probation Central File) Record. This is a chronological listing of every criminal case in the PCF for the particular person. The listing shows for every criminal case the arraignment date, the court, the charge(s), and the disposition of the case. The PCF also includes a person's juvenile record and a person's record of civil abuse prevention orders. Many states do not have a centralized record keeping office for the whole state. Massachusetts does. The probation central file is generally available to courts and law enforcement agencies only. The probation central file is not available to the general public.

(5) Massachusetts Criminal History Systems Board: The Criminal History Systems Board (CHSB) is the state agency charged with making available criminal records to interested persons. Criminal Records are called CORI and CARI .(CORI = criminal offender record information) (CARI = Court Activity Record Information). The CHSB gets its information from the Massachusetts Board of Probation. Generally speaking the CHSB cannot give out criminal record information. There are exceptions: the Federal Government, Local, State, and Federal Law enforcement agencies have access to CARI and CORI. If an individual signs a release (for example to a prospective employer or to a college admissions department) then that prospective employer or college can request a copy of the person's CORI from the CHSB. When we talk about sealing records, this is the record (CORI and CARI) that we seek to make not available. Massachusetts has statutes that govern the sealing of records. Generally speaking the record of a conviction for a felony can be sealed after 15 years and the record of a conviction for a misdemeanor can be sealed after 10 years. There are certain drug crimes that allow for the sealing of the record immediately upon the completion of probation. The statutes provide that if a case is dismissed or a person is found not guilty, then the judge "may" order the record sealed. The case law in this area, however, has placed severe limitations on the power of a judge to order records sealed even when people are found not guilty or the case is dismissed. Generally speaking a judge is only supposed to order a record sealed if there is some "compelling governmental interest". The fact that the accused was innocent and was found to be not guilty and has no other criminal record is not enough for many judges. In 2009 we at Lewin & Lewin were successful in sealing the record of a woman charged with forcible rape of her adult boyfriend after the District Attorney dismissed the charges. In 2009 we were also successful in sealing the record of a woman who was charged with assault and battery on her husband in 2009 (that charge was dismissed) as well as another case the woman had dating back to 1999 (for assault and battery by dangerous weapon that was dismissed).

Sealing of criminal records involves either petitioning the Court where the case was prosecuted or petitioning directly to the Massachusetts Board of Probation.