NF and her domestic partner of 23 years live together in Andover, MA. On September 21, 2011 the two women got into an argument; the argument turned physical; punches were thrown and a glass bowl got tossed and smashed. The partner called the police to get NF removed from the house. The police repsonded and saw the partner with a black eye and NF got arrested and charged with Domestic Assault and Battery and Assault with a Dangerous Weapon (a glass bowl). The police photographed the partner's black eye. NF appeared in Court for an arraignment on the next morning and her case was continued for a pre-trial hearing to November 4, 2011. On Saturday morning September 24, 2011 NF and her partner met with Attorney Robert Lewin in Andover for a free initial consultation. During that initial meeting Attorney Lewin learned that NF herself had received several bruises in the fight and Attorney Lewin had photographs taken that day of NF's bruises. Attorney Lewin prepared an Accord and Satisfaction and a Fifth Amendment Affidavit for the partner to sign. The partner did not want NF to be prosecuted and wanted the case dismissed. Massachusetts Law permits the accused and the "victim" in an assault and battery case to work out a financial settlement of the case. That financial settlemnt is called an Accord and Satisfaction. Upon the filing of an Accord and Satisfaction a judge has the discretion to order an assault and battery charge dismissed. The judge is not required to dismiss the assault and battery but the judge may order the assault and battery charge dismissed. Technically an Accord and Satisfaction does not apply in the case of a felony. Assault and Battery is a misdemeanor in Massachusetts. Assault with a Dangerous Weapon is a felony and technically an Accord and Satisfaction is not available for the felony charge. In addition to the Accord and Satisfaction Attorney Lewin also prepared a Fifth Amendment Affidavit for NF's partner to sign. Because the partner had exposure herself to being prosecuted for Assault and Battery against NF, the partner had an absolute right not to incriminate herself and therefor an absolute right not to testify in the case against NF. On September 28, 2011 Attorney Lewin met with the Assistant District Attorney assigned to the case for a pre-trial conference. Although the DA's Office recognized that the partner had a right not to testify the DA's Office was unwilling to dismiss the case at the pre-trial hearing. As they always do, the DA's office was insisting that the parties appear for a pre-trial hearing and that the case then be set down for trial on a date thereafter. On Thursday, September 29, 2011(8 days after the fight) Attorney Lewin had the case brought forward and Attorney Lewin, NF and her partner (the named victim in the case) all appeared in Court. Attorney Lewin presented the written Accord and Satisfaction and the written Fifth Amendment Affidavit to the Judge. The Judge asked if the partner was present in Court and Attorney Lewin had her come forward. The Judge then determined that the partner had a valid Fifth Amendment claim. The Commonwealth conceded that they could not go forward without her testimony. Attorney Lewin moved for dismissal of the charges; the Assistant District Attorney objected and asked that the case be set down for trial. Over the objection of the Assistant District Attorney the Judge ordered the case dismissed. It took just eight days from the date of arrest (September 21, 2011) to dismissal of all the charges (September 29, 2011). Both NF and her partner were thrilled that the case got disposed of so favorably and so quickly. The results in this case are common at Lewin & Lewin. We don't sit back and wait for things to happen; we make things happen and we do it quickly.
September 2011 Archives
JP, a 25 year old construction worker from Woburn, occasionally deals in weed. One day he got up to go to work. He left the house and worked at his construction job until noon. He then returned home for lunch and discovered that his house had been broken into and his two safes had been stolen. JP then did what any bright drug dealer would do - he called the Woburn PD to report the break. The police responded and JP invited them into the house. The police took note of the evidence of the break but then in "plain view" also noticed baggies, scales, seeds, cuff notes, and the aroma of fresh marijhuana. The police asked JP where the weed was and he opened a drawer and produced two bags full of weed. The police report noted that JP said "I can't believe they broke in and didn't steal the weed!". The police did not arrest JP but rather filed an application for criminal complaint against him at Woburn District Court for possession of class D (marijhuana) with intent to distribute. JP had a prior drug conviction. JP retained Attorney Robert Lewin. It took about 14 months for the hearing before the Assistant Clerk-Magistrate to get scheduled. On September 19, 2011 JP and Attorney Lewin appeared at Woburn District Court for the hearing. Attorney Lewin argued that this would be an appropriate case not to issue a criminal complaint but rather to resolve the case at the Clerk's hearing with no further criminal proceedings. The police prosecutor agreed with Attorney Lewin's suggestion and the Assistant Clerk-Magistrate ordered that the hearing would be continued for one year and if JP were in no further trouble then the application would be dismissed. As a result of this disposition JP was not charged, he did not have to go to court in front of a judge, no entry was made on his criminal record, and he did not face the mandatory 2 year loss of driver's license. (Massachusetts Law requires a mandatory loss of driver's license for ANY drug conviction - even if no car was involved.) As an Assistant District Attorney, Attorney Robert Lewin had been the chief prosecutor at the Woburn District Court for one year. Since leaving the District Attorney's Office in 1975 Attorney Lewin has been appearing in Woburn Court almost every week. He is well known, well liked, and well respected by the Judges, the Clerks, the police prosecutors and the Assistant District Attorneys in that court. JP felt his situation was hopeless and was not going to attend the Clerk-Magistrate's hearing but rather just wait for the criminal complaint to issue. Attorney Lewin told him there is always a chance to favorably resolve the case at the Clerk's Hearing and that is precisely what happened.
SN, a 23 year old Russian immigrant has a very heavy driving foot. Over the past three and a half years he has accumulated 11 "surchargeable events" on his driving record. Under Massachusetts Law any operator who accumulates 12 "surchargeable events" in a five year period becomes classified as a Habitual Traffic Offender (HTO) and loses his license for 4 years. After one year there is eligibility to apply for a hardship license. SN was driving home on Route 93 North in Methuen. According to the police officer who pulled him over, SN was going 91 mph in a posted 65 mph zone and the zone was a construction zone (the fines get doubled). The officer cited SN for speeding in a construction zone and for failure to keep right. The officer had followed SN for some distance and the speed was estimated, clocked, and lidar checked. These two infractions would put SN into the 12 surchargeable event range and he would lose his license for 4 years. SN drove for a living, which is part of the reason he accumulated so many tickets. SN retained Attorney Robert Lewin. On September 20, 2011 SN and Attorney Lewin appeared at Lawrence District Court for the hearing before the Clerk-Magistrate. At the beginning of the hearing the police prosecutor (a Massachusetts State Trooper) quite inappropriately referred to SN's driver record and stated to the Clerk that SN had a terrible record and that SN had just not learned. The prosecutor then stated that he did not have a copy of the citation. Attorney Lewin immediately asked that SN be found not responsible and the Clerk-Magistrate agreed and entered a finding of not responsible on the two violations on the ticket. At a hearing on a civil motor vehicle infraction citation the police must have a copy of the citation or report in order to go forward. In the absence of a citation or report the motorist is entitled to a finding of not responsible. The whole hearing played out in less than a minute and SN had no clue what happened until he and Attorney Lewin got outside the hearing room and left the Court and Attorney Lewin explained his good fortune.