TWO DOMESTICS IN TWO COURTS DISMISSED IN ONE DAY

Wednesday, April 17, 2013 was a busy day for Attorney Robert Lewin. At 9:00 AM Attorney Lewin appeared in Malden District Court representing DB, a 50 year old man charged with Assault and Battery on his wife. As happens in many cases of alleged domestic assault and battery, by the time of the pre-trial hearing in this case Mrs. B decided she did not want to testify against her husband. Mrs. B spoke with Attorney Lewin and Attorney Lewin prepared a “marital affidavit” in which Mrs. B swore that if called as a witness against her husband she would exercise her “marital privilege” and refuse to testify. In Massachusetts husbands and wives have a privilege not to testify against each other in a criminal trial.

The DA’s Office was unwilling to dismiss the case at the pre-trial hearing and a trial date of April 17, 2013 was set. On April 17, 2013 Attorney Lewin, DB and Mrs. B appeared in Malden Court. The case was called and Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin told the Judge that Mrs. B was present in the courtroom and was prepared to exercise her marital privilege. The Judge called Mrs. B forward and made inquiry of her as to whether she wished to testify or not and whether or not anyone had forced or coerced her into exercising her marital privilege. Mrs. B said she did not want to testify and no one had forced or coerced her into exercising her marital privilege. The Judge then accepted her exercise of her marital privilege. The DA said they could not go forward; Attorney Lewin moved to dismiss the case and the Judge ordered the case dismissed for lack of prosecution.

Attorney Lewin then left Malden Court and drove over to Cambridge District Court (now located in Medford just off Wellington Circle). HK, a 34 year old Egyptian national, was accused of Assault & Battery, Assault and Battery with a dangerous weapon (a headboard of a bed), Intimidation of a Witness, and Threat to Commit a Crime. According to the police reports HK and his 25 year old girl friend had gotten into a heated argument; it was alleged that HK got on top of his girlfriend and pushed her head into the headboard of a bed, took her cellphone, and threatened to kill her. According to the police report as she called 911 he fled the apartment. He was apprehended outside the apartment in his car. The girlfriend decided she did not want to see HK prosecuted; however, because they were not married she did not have a “marital privilege” and the government could force her to testify. In the police report there was an indication that the girlfriend had “pushed” HK; there was also a claim that the girlfriend had kicked HK.

Attorney Lewin prepared a “Fifth Amendment Affidavit” which HK’s girlfriend read and approved and signed. In the Affidavit the girlfriend swore that “the police report stated that she had pushed HK” and she also swore that she had learned that HK might testify that she had kicked HK. The DA wasn’t buying it. The DA did not believe that the girlfriend had a legitimate Fifth Amendment Claim.

On April 17, 2013 HK, his girlfriend, and Attorney Lewin appeared before the Judge in Cambridge District Court. Attorney Lewin told the Judge that the girlfriend was present in the courtroom and that she wished to exercise her Fifth Amendment Privilege. The Judge appointed a lawyer to speak with the girlfriend. The DA requested a Martin Hearing. A Martin Hearing (named after a case Commonwealth vs. Martin) is a hearing “in camera” which means a hearing with only the witness (the girlfriend in this case), her lawyer, and the Judge present. The DA, the Defense lawyer, and the Defendant are not present. At the hearing the Judge asks the witness questions about her testimony if she were to testify and the Judge makes a determination as to whether there is a valid Fifth Amendment Claim.

The Judge did this and after the hearing all the parties were called back into the Courtroom and the Judge announced that the witness in fact had a valid Fifth Amendment Claim and the girlfriend was excused from testifying. The DA then filed a nolle prosequi. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth. It is the same as a dismissal.

Both the case in Malden Court (marital privilege case) and the case in Cambridge Court (Fifth Amendment privilege case) went well because both cases were prepared and the witnesses (the wife in one case and the girl friend in the other case) were fully prepared. They both were prepared for the questions from the judge and they both fully understood the privilege they were exercising.