DOMESTIC ASSAULT AND BATTERY CASE TO BE DISMISSED

GD, a 33 year old British Citizen, lives with his wife and seven year old son in Middlesex County Massachusetts. None of them are US Citizens and he is here on a work visa. GD got into an argument/fight (depending upon whose version you believe) with his wife and the police were called to the house. The police separated GD and his wife.The wife told the police that GD had “pushed her to the floor” and had slapped the seven year old. The police arrested GD and he was charged in Ayer District Court with Assault and Battery on his wife and Intimidation of a Witness. The Domestic Violence Unit in the D.A.’s Office had reviewed the case and had “taken an interest” in the case. They wanted the case prosecuted and wanted a guilty finding on the Assault and Battery Charge. GD retained Attorney Robert Lewin. There are many tools available in this type of case and they were all used here. Because GD was a British Citizen and because he traveled outside the US often any type of probation was unacceptable as he might not be permitted to reenter the US the next time he left. Attorney Lewin spoke with Mrs. D (GD’s wife) and she agreed to exercise her marital privilege and not testify against her husband. Attorney Lewin also prepared and had Mrs. D sign an Accord and Satisfaction wherein she asked that the charges against her husband be dismissed. Massachusetts Law allows a Judge to dismiss an Assault and Battrey case if the “victim” comes before the Court and “acknowledges satisfaction” for her injuries. The Judge is not required to dismiss the case but has the discretion to dismiss the case. Attorney Lewin also prepared a Motion to Exclude the statements made by Mrs. D to the police on hearsay grounds. On April 14, 2011 the case was called for trial in Ayer District Court. The DA was going to proceed without the direct testimony of Mrs. D. The DA was going to attempt to get into evidence Mrs. D’s statements to the police. The Judge reviewed the Accord and Satisfaction but exercised his discretion not to dismiss the case. The DA suggested a continuance without a finding; Attorney Lewin said that was unacceptable as GD denied hitting or pushing his wife and he would not admit guilt to anything. The Judge suggested a one year term of “pre-trial probation”. Attorney Lewin said that this too was unacceptable as it may create immigration consequences for GD. Attorney Lewin said that the defense would agree to a general continuance of the case for six months – without any pre-trial probation – with the understanding that the case would be dismissed at the end of the six months. The Assistant DA in Ayer District Court had to call her superiors in the Domestic Violence Unit to get authority to agree to the general continuance of the case. The DA’s Office agreed and the case was continued generally to October 14, 2011 on which date it will be dismissed. There is NO probation and there are no immigration consequences to GD.
This case could serve as a law school text book case for issues in a domestic assault and battery case:

  1. Use of an Accord and Satisfaction to seek a dismissal of the charge.
  2. Use of a Motion in Limine to Exclude the Statements of the Complainant on hearsay grounds.
  3. Exercise of the Marital Privilege so that the injured spouse can refuse to testify.
  4. The differences between (1) a continuance of a case without a finding, (2) pre-trial probation, and (3) a general continuance of a case.

    Attorney Robert Lewin has been at this since 1971 and Attorney Joshua Lewin has been at this since 2003. They bring the level of experience and knowledge and toughness that is needed when the government seeks to prosecute an individual for a crime and when results matter.