Massachusetts Criminal Lawyer Blog
For many years a feud had simmered between two brothers. The older brother is age 60 and the younger brother is age 38. On Saturday, January 26, 2019 the younger brother was helping another brother (this is a very large family) move out of a three family house owned by the older brother in Haverhill. The older brother had ordered the younger brother not to come onto the property. The younger brother ignored the order and was in the house helping the other brother move. During the moving process the hardwood floors got scratched, a wall got dented, and an exterior door frame got damaged. The older brother confronted the younger brother and the two brothers got face to face in the presence of about 4 witnesses. The younger brother reported to the Haverhill Police that the older brother then punched the younger brother in the face twice before the two men were separated by the witnesses who were present. According to the police reports the younger brother had visible cuts on his face from the punches.
The Haverhill Police filed an application for a criminal complaint for Assault & Battery against EJ, the older brother. EJ has a job working in a public school system and an assault & battery charge could have drastic consequences for his continued employment and his pension. EJ sought out an attorney. EJ contacted and met with Attorney Robert Lewin from North Andover. Attorney Lewin also met with EJ’s wife; she was present when this happened. Attorney Lewin fully prepared EJ and his wife for the Clerk-Magistrate Hearing.
On February 13, 2019 EJ and his wife and Attorney Lewin appeared in Haverhill District Court for the Clerk-Magistrate Hearing. The police prosecutor read the police report to the Clerk-Magistrate. The report clearly stated that EJ punched his brother twice in the face in the presence of four witnesses causing cuts to the face. The legal test for a Clerk-Magistrate is probable cause; if the Clerk-Magistrate determines that there is some credible evidence that the crime occurred then the Clerk-Magistrate may issue the criminal complaint. The Clerk-Magistrate does not determine if the accused is guilty or not guilty, but merely is there some credible evidence that the crime occurred. It is a very low threshold. EJ and his wife testified that EJ had not punched his brother. In addition Attorney Lewin presented photos at the hearing of the damage that the younger brother had caused to the property. Attorney Lewin also presented photos of EJ; the photos showed bruises on EJ where he had been grabbed by his younger brother.
The turning point in the case was when EJ’s wife testified that EJ and his brother were acting like two adolescent boys. EJ’s wife touched a chord with the Clerk-Magistrate. Attorney Lewin assured the Clerk-Magistrate that this type of episode would not repeat itself. At the completion of the hearing the Clerk-Magistrate denied the application for a criminal complaint. As a result EJ was not charged; he did not have to return to court; and – most importantly – he kept his criminal record clean.
Clerk-Magistrate hearings are an important opportunity to put an end to a criminal charge before any criminal record is created. EJ and his wife and Attorney Lewin left the Haverhill District Court very happy that EJ was not charged.