Assault & Battery Charge On A Child Avoided At Clerk-Magistrate Hearing

On November 5, 2020, LT, a 43 year old firefighter in a town north of Boston, was at home with his wife and two sons, ages 5 and 6. The five year old son has behavioral issues and throws tantrums when he does not get his way. The family had supper together and the LT’s wife was getting the two boys ready for bed. The five year old began demanding to eat more. His mother told him no and he had a meltdown. Her was kicking and screaming. LT then got off the couch and went over to the five year old. LT told this son to stop screaming and LT started to count 10, 9, 8 … The boy then stood up, stuck his face out toward LT, and screamed at LT. LT had his right hand extended and swept three fingers across his sons cheek striking the boy’s neckline and chin line. LT then picked his son up and carried him into his bedroom and placed him down on the bed. The sweep across the chin/neck area had left very visible and distinct red marks on the five year old’s neck.

The next morning, with the red marks very visible, the five year old went to school. A teacher noticed the marks and asked the five year old what happened and he told the teacher that his father had hit him the night before. The teacher – being a mandated reporter- immediately called DCF and the police. DCF and the police went to LT’s home to investigate and they confirmed that what the boy told them was true.

The police contacted LT and asked him to come to the station. LT was interviewed at the station by the police and DCF and he admitted to striking his son. DCF opened an abuse case against LT and the police filed an application for a criminal complaint against LT at Lowell District Court. DCF told LT and his wife that LT could not be left alone with the boys or DCF would go to court to seek custody of the boys.

At this point LT consulted with and retained Attorney Robert Lewin from Andover. The potential consequences to LT in this situation cannot be overstated. His job as a firefighter was on the line. Attorney Lewin was able to obtain copies of the police reports. Attorney Lewin advised LT to take a parenting course and Attorney Lewin also worked with DCF. Because of Covid there was a delay in getting the Clerk-Magistrate hearing. Finally a hearing was scheduled on July 21, 2021. Before that date much was done to get the case in the best possible position for a favorable disposition: LT had completed the parenting course; DCF had agreed to allow LT to be alone with his children; DCF had closed its case; Attorney Lewin had spoken with the police prosecutor and had explained to the prosecutor all the steps that LT had taken with DCF; Attorney Lewin furnished to the police prosecutor the letter from DCF to LT stating that DCF had closed their case. Attorney Lewin advocated with the police prosecutor for NO criminal complaint to issue against LT at the hearing.

On July 21, 2021, LT, his wife and Attorney Lewin appeared at Lowell District Court for the Clerk-Magistrate Hearing on the Application for Criminal Complaint that the police had filed against LT alleging assault and battery on LT’s five year old son. Attorney Lewin explained to the Clerk-Magistrate the facts of the case. Attorney Lewin informed the Clerk-Magistrate that LT had worked with DCF, had completed a parenting course, and that DCF had closed its case against LT. Attorney Lewin furnished the Clerk-Magistrate with the letter from DCF closing the case. Attorney Lewin had LT’s wife present at the hearing so that she could tell the Clerk-Magistrate that she was satisfied that this would never happen again. Attorney Lewin asked the Clerk-Magistrate not to issue a criminal complaint against LT.

The Clerk-Magistrate asked several questions and then announced that he found NO probable cause that LT had committed a crime and the Clerk-Magistrate denied the police application for a criminal complaint.

Attorney Lewin explained to LT the benefits of that decision:

  • NO criminal complaint was issued against LT.
  • LT was NOT charged with any crime.
  • LT did NOT have to return to court to go before a Judge.
  • NO criminal record had been created.
  • NO entry will be made in the Criminal Offender Record Information (CORI) System under LT’s name.
  • Because he was NOT arrested, the were NO fingerprints taken and NO booking photo taken.

Attorney Lewin explained to LT that this was the very best possible result. LT and his wife thanked Attorney Lewin and all three left the Courthouse with smiles on their faces.

The case was won, in part, because it was carefully and completely prepared.

Attorney Lewin was an Assistant District Attorney from 1971 t0 1975. He has been practicing criminal defense law since 1975 and has an enviable record of success at Clerk-Magistrate Hearings in all types of criminal cases. There are very few lawyers who can match his level of experience and expertise. His years of dealing with the police and with Clerk-Magistrates have taught him how to connect with the police and with the Clerk-Magistrates in order to get winning results.

p.s. About a week after the hearing, Attorney Lewin received a very thoughtful Thank You note from LT. In the note LT wrote “Thank you very much for all your help and hard work”. For Attorney Lewin it just doesn’t get much better.


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