In December of 2016, WX, a 32 year old female nanny, with several client families in Andover, MA, was caught stealing from one of her client families. The family contacted the police. WX had been stealing expensive children’s clothing (with the tags still on them) from the family’s home and then selling the clothing online. The police filed an application for a criminal complaint for felony larceny over $250 against WX and the application was set up for a Clerk-Magistrate Hearing at Lawrence District Court. It was critical for WX to avoid having a criminal record – especially for stealing – as virtually all her client families did criminal record checks on WX before hiring her. No one will hire a thief.
WX contacted and retained Attorney Robert Lewin from North Andover, MA to represent her. Attorney Lewin spoke with the Andover PD police prosecutor to see if an agreement could be reached to avoid a criminal complaint from issuing. The prosecutor told Attorney Lewin that $1,700.00 worth of clothing had been stolen.
Fortunately for WX, the family from whom she stole loved her work as a nanny with the children. WX was patient, kind, instructive, and supportive with the children. The family was sad to have to fire her. Attorney Lewin explained to WX that if a criminal complaint was to be avoided – a long shot in this case – she would have to pay the $1,700.00 in restitution. WX asked if she could pay that over time; Attorney Lewin told WX that if she wanted to maximize her chances of making the case go away she would have to be prepared to pay the restitution in full on the day of the Court hearing.
On February 16, 2017 WX and Attorney Lewin appeared at Lawrence District Court for the hearing. The victimized parents were present for the hearing as well as the Andover Police Prosecutor. The parents explained to the clerk-magistrate what had happened. To everyone’s surprise the Mother then spoke of how sad they were to lose WX as a nanny. The mother spoke about how good she was with the children and the mother also spoke of how she understood that WX was not a wealthy woman. The mother asked the clerk-magistrate not to issue the criminal complaint. The Clerk-Magistrate was taken aback. The Clerk-Magistrate told everyone that he felt it was important that WX be charged so that she would have a criminal record so that if other families went to hire her and they checked her criminal record they would see that she was a thief. The mother pushed back. (Sometimes a lawyer has to know when to just shut up; the Mother (victim) was advocating for WX not to be charged. It is difficult for the Clerk-Magistrate to argue with the victim mother. If at that moment Attorney Lewin had intervened then the Clerk-Magistrate would have had an easy time in saying “Your client is a thief from innocent families and I am going to charge her.” Attorney Lewin and WX just sat quietly while the mother (victim) and the Clerk-Magistrate talked back and forth.) Finally the Clerk-Magistrate turned to WX and said: “You are a thief. You stole from an innocent family. My better judgment tells me that you should be charged. I have young children and I would want to know if any nanny that I hired had a criminal record. However, this mother has spoken so passionately on your behalf that I am going to take a chance on you. Again, this is against my better judgment, but I am going to take a chance on you.”
The Clerk-Magistrate then said that he would continue the Clerk-Magistrate Hearing for six months to August 17, 2017 and that the Application for Criminal Complaint would be dismissed on that date provided that WX pay the $1,700.00 in restitution immediately and that WX perform 20 hours of community service. Attorney Lewin then said that he would deliver the $1,700.00 check to the victims that day and that WX would perform the 20 hours of community service right away.
On August 17, 2017 (the six month date) the application for the criminal complaint for larceny by stealing was ordered dismissed by the Clerk-Magistrate. These Clerk-Magistrate Hearings are important. If the Clerk-Magistrate issues a criminal complaint then the accused person has to return to court for an Arraignment in front of a judge. Upon the holding of the Arraignment a criminal record is created. If the Clerk-Magistrate decides not to issue a criminal complaint then no criminal record is created.
Attorney Lewin has been a criminal defense lawyer since 1975 and for four years before that he was an Assistant District Attorney. One of the important lessons that comes with this level of experience is knowing when to simply say nothing. This case was a perfect example of knowing that when your winning to leave well enough alone.