INDECENT ASSAULT & BATTERY ON A CHILD: THE STATE AND THE DEFENSE BOTH BLINK

SN, a 60 year old man from Methuen, was arrested and charged with Indecent Assault & Battery on a Child Under 14. The child was his 12 year old niece who complained that he had sexually assaulted her when she was 7 or 8 years old. SN vehemently denied the charge. Indecent Assault and Battery on a Child Under 14 is a felony punishable by up to ten years in the State Prison. A conviction requires Sex Offender Registration for up to life and GPS Monitoring with an electronic bracelet. In pre-trial discovery Attorney Lewin was able to discover a police report wherein it was reported that the child had told her sister that she may have been dreaming. During her SAIN Interview the child denied ever saying to her sister that she may have been dreaming. The sister, who lived in New Hampshire, refused to be interviewed by the defense. Attorney Lewin filed proceedings in Lawrence District Court to force the sister to appear in Lawrence District Court for the trial. Papers were sent to Salem District Court in Salem, NH and a hearing was set for a judge in NH to order the sister to appear in Massachusetts for the trial. The sister then agreed to appear at the trial. On Januray 31, 2011 all the parties appeared in Lawrence District Court and the case was called for trial. Both sides answered ready for trial. The Assistant District Attorney approached Attorney Lewin and offered to reduce the charge to simple Assault and Battery. Simple Assault and Battery is a misdemeanor that does not involve sex offender registration and does not involve GPS Monitoring. The DA offered straight probation on a plea to simple assault and battery. As he was required to do, Attorney Lewin conveyed the offer of the DA to SN. SN, who for weeks had had visions of going to state prison and of having to register as a convicted sex offender and of wearing an ELMO (Electronic Monitoring Device), took the DA’s offer immediately. He tendered what is called an Alford Plea. An Alford Plea is when you plead guilty but do not admit to having committed the crime. The Court accepted the Alford Plea to simple assault and battery and placed SN on straight probation. SN walked out of the Courthouse and went home. The DA blinked first when she offered the reduced plea to Assault and Battery with a sentence of Probation. Some Defendants would have read the offer as a signal that the State’s case was falling apart and would have refused the offer and gone to trial. SN saw that, but decided not to take the risk of going to trial. He blinked and took the plea. These are not easy decisions. We always tell clients “Don’t plead guilty to a crime you did not commit.” Sometimes, however, clients feel compelled to plead when an offer is made that is too good to turn down. That appears to be what SN thought in this case. It is hard to say that he was wrong. A felony conviction – which was certainly possible – meant jail time, sex offender registration, and GPS monitoring. With the plea to a misdemeanor he locked in Probation with no registration and no GPS. What would you have done? Would you have blinked?