On July 23, 2013, HL, a 50 year old Chinese National, was arrested for Assault and Battery and Assault & Battery with a dangerous weapon. HL and his wife, who live in Andover with their three children, got into a heated argument over money. It was alleged that HL grabbed a large book and began to hit his wife about her head with the book. She sustained minor cuts to her ear and arm. She called the Andover Police who responded immediately. HL had left the home but returned shortly after the police responded. The police spoke with HL’s wife who told them what happened. HL denied striking his wife. The police arrested HL and he was brought to the Andover Police Station. Assault and Battery with a Dangerous Weapon is a felony and is a deportable offense. Assault & Battery can be a deportable offense.This was of great concern to HL as he is not a US Citizen and he could be forced to return to China.
HL contacted Attorney Robert Lewin. Attorney Lewin immediately got the police reports and it became evident that if HL’s wife exercised her “marital privilege” and refused to testify against HL that the Commonwealth would have a difficult time proving their case. The Essex County DA’s Office is very hesitant to dismiss domestic Assault & Battery cases at the pre-trial hearing, even if the “victim” exercises her marital privilege. It is the “standard practice” of the Essex County DA’s Office to push the case to trial to see if the “victim” will ultimately chose to testify against their spouse. Attorney Lewin spoke with HL’s wife and she made it crystal clear that she wanted the case dismissed and that she would exercise her marital privilege and not testify against her husband.
Attorney Lewin prepared a marital affidavit for HL’s wife to sign wherein she stated that she would exercise her marital privilege and that she wanted the case dismissed. Attorney Lewin furnished the signed affidavit to the District Attorney and advocated for the DA’s Office to dismiss the case at the pre-trial as opposed to making everyone come back to court for a trial date.
On October 1, 2013 HL, his wife, and Attorney Robert Lewin appeared in Lawrence District Court. HL’s case was called in Courtroom 4 for a pre-trial hearing. Attorney Lewin put the Assistant District Attorney in direct face to face contact with HL’s wife. She told the DA she wanted the case dismissed. The case was called. Attorney Lewin informed the Judge that HL’s wife was present and that she wished to exercise her marital privilege. The Judge called HL’s wife forward and asked her a series of questions concerning her exercise of her marital privilege. The Judge determined that this is what she wanted to do and that no one had forced her into not testifying against her husband. The Judge then excused HL’s wife from testifying. The Assistant DA then said they could not go forward without her testimony. Attorney Lewin moved for a dismissal. The Judge then ordered the case “Dismissed upon failure to prosecute”. HL walked out of the Court a happy man.