Articles Posted in Domestic Assault Cases

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CN, a 15 year old boy in the 9th grade at a local well to do Essex County high school, was in a dating relationship with 14 year old girl. In the fall of 2014 CN and the girl were “making out” According to the girl, CN stated that it would be fun to have rough sex and he scratched her on the back and hit her three times in the stomach. She told him to stop and she says that he did not. About one month after this incident the girl stated that she and CN had sexual intercourse. Word of this was spread to the school authorities who in turn notified the police. The police interviewed CN. CN told the police that he had never gotten physical with the girl and that the scratches had been an accident when he held her too tight. The police re-interviewed the girl. She stuck to her story and showed the police photographs of the injuries she allegedly sustained from CN. In addition she told the police that when she and CN would make out he would call her names like slut. Lastly the girl showed the police text messages from other girls stating that CN did the same things to them.

The police filed an application for a juvenile complaint for assault and battery against CN in the Essex County Juvenile Court. CN’s parents retained Attorney Robert Lewin from North Andover to represent CN. The application for complaint was scheduled for a hearing by the Clerk-Magistrate of the Juvenile Court. Attorney Lewin immediately contacted the police prosecutor and the coordinator of the Juvenile Diversion Program and advocated for CN’s case to be “diverted” out of the Criminal/Juvenile Justice System. The Essex County District Attorney’s Office runs a Juvenile Diversion Program. The purpose of the program is to allow a juvenile – in an appropriate case – to avoid having a criminal/juvenile record. If a juvenile is accepted into the Juvenile Diversion Program, the Juvenile Court Proceedings are suspended, no arraignment tales place, and no criminal/juvenile record is created. Upon successful completion of the Juvenile Diversion Program the criminal/juvenile charges are dismissed without any arraignment having taken place and no criminal/juvenile record is created. Because of the nature of the allegations made by the girl the police were hesitant to recommend diversion and actually wanted CN to be prosecuted in juvenile court for the alleged assault and battery. Attorney Lewin explained to CN and his parents that the case had to be prepared as if it were going to go to trial, but at the same time efforts to get the case diverted would continue. Attorney Lewin had several meetings with the police prosecutor and the Juvenile Diversion coordinator and advocated zealously for the case to be diverted.

On December 10, 2014 CN and his parents and Attorney Lewin appeared in Lawrence Juvenile Court. Attorney Lewin had had CN enroll in counseling with an adolescent counselor prior to the court date and Attorney Lewin had secured a favorable report from the counselor. At the hearing the Police were still somewhat reluctant to wholeheartedly endorse diversion, but they did not oppose it. The Clerk-Magistrate said she would recommend the case for diversion, but that the Diversion Coordinator would have the final say as to whether the case would be accepted into the diversion program. Because there was an allegation of boyfriend/girlfriend abuse everyone in the “court system” was reluctant to let the case go into diversion. Ultimately the Diversion Coordinator agreed that CN would be a good candidate for diversion and the case was accepted for diversion. CN is in the diversion program now and is doing well. The diversion program is designed to run for four to six months. It typically includes the Juvenile writing a letter on better decision making and – in a case of domestic violence – it almost always includes a program of counseling on teen dating violence.

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On July 14, 2014, JC, a 46 year old housewife from Tewksbury got drunk. When her husband got home from work she attacked him ripping his shirt off and throwing things at him. He called 911. The police responded. Photographs were taken by the police of the husband and of his torn shirt. JC was arrested. This was her second arrest for assaulting her husband. In 2013 she had been arrested and charged with domestic assault & battery by means of a dangerous weapon. In the 2013 case JC retained Attorney Robert Lewin and Attorney Lewin was successful in getting that case dismissed. Following her arrest she was brought to the Tewksbury Police Station; she was booked and held for court. JC again retained Attorney Robert Lewin. JC was arraigned and released and her case continued for a pre-trial hearing. Attorney Lewin met with JC’s husband and he agreed to exercise his marital privilege. In Massachusetts a spouse (husband or wife) may refuse to testify against their spouse at a criminal trial. The marital privilege only applies to testifying at a criminal trial. JC and Attorney Lewin appeared at Lowell District Court for the pre-trial hearing. JC’s husband was present at the pre-trial hearing and was prepared to exercise his marital privilege at the pre-trial hearing. The Judge ruled that the privilege could only be exercised at the trial and the case was continued to October 3, 2014 for trial.
On October 3, 2014 JC and Attorney Lewin appeared at Lowell District Court; the case was called and Attorney Lewin answered ready for trial. JC’s husband was present and was called forward. He exercised his marital privilege and the privilege was accepted by the trial judge (who happened to be the same judge who had refused to accept the privilege at the pre-trial hearing). The Assistant District Attorney stated that without the husband’s testimony the Commonwealth did not have sufficient evidence to prosecute the case and the case was dismissed. In this case there was a recording of the 911 call made by JC’s husband to the Tewksbury Police Department. In that recording the husband tells the police that he had been attacked by his wife, that she had ripped his shirt off, and that this had happened before. Normally speaking, 911 recordings are not admissible; they are hearsay evidence. One of the exceptions to the hearsay rule is that if the 911 call contains an excited utterance or if the statements made to the police are made for the purpose of quelling an ongoing emergency situation or for the purpose of determining if a person is in need of medical care then the contents of the 911 call are admissible at trial and can be used as evidence against the accused. Attorney Lewin prepared a lengthy and detailed Motion to Exclude the contents of the 911 Recording. The District Attorney agreed with Attorney Lewin’s analysis of the law and thus the Commonwealth did not go forward with the trial. JC was very fortunate that her husband did not want to go forward and she was fortunate that Attorney Lewin was able to convince the DA that the contents of the 911 call would not be admitted at trial; for the second time she walked out of the Lowell District Courthouse a free woman.

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On July 19, 2014 SI, a 46 year old letter carrier from Malden, asked his 16 year old son to get ready for bed. SI and his son got into an argument. The son told SI to go f__k himself. The son alleged that SI then struck the son across the forehead pushing the son into the wall. SI’s wife got between the two of them. SI’s daughter called 911. SI left the house. The police responded. The police took statements from SI’s son, daughter, and wife. The police applied for a criminal complaint against SI for assault & battery. The police also notified DCF (the Department of Children & Families); DCF came to the house and took statements from everyone, including SI. SI denied striking his son in the forehead. DCF was told that the son (who was 2″ taller than his father and 20 pounds heavier) got up in his father’s face and was screaming at his father. SI put his open palms against the son’s chest and simply pushed the son back from SI’s face. The DCF decided to UNsupport the allegation of abuse that had been made against SI. SI retained Attorney Robert Lewin to represent him at the hearing on the criminal complaint.
Prior to the hearing Attorney Lewin met face to face with the Malden Police Prosecutor. Attorney Lewin gave the police prosecutor a copy of the decision from the Department of Children & Families showing their determination NOT to support an allegation of abuse. In addition Attorney Lewin gave the police prosecutor a copy of a statement Attorney Lewin had taken from SI’s wife wherein she corroborated SI’s version of what had occurred. On September 16, 2014 Attorney Lewin, SI and SI’s wife appeared at Malden District Court for the hearing. Attorney Lewin had SI’s wife testify. After hearing the testimony of SI’s wife the Clerk-Magistrate DISMISSED the application for criminal complaint. As a result of this disposition SI was not charged with a criminal offense, no criminal complaint was issued against him, he was not arrested, and no criminal record was created. It was as if it did not happen. SI and his wife left the court pleased with the outcome of the case.
As in most criminal cases, preparation and communication are most important. Attorney Lewin had both SI and his wife prepared for the court hearing. Attorney Lewin had communicated fully with the Police Prosecutor before the hearing. “All the ducks were lined up” before SI and Attorney Lewin walked into the hearing room.

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On September 24, 2013 AC, a 33 year old female living in Malden with her 32 year old boyfriend (JR), learned that JR was using drugs. JR was sleeping. AC went into the bedroom and proceeded to wake JR up. This is where the stories diverge. According to the Malden Police Reports JR told the police that AC was standing over the bed with a large kitchen knife in her hand when she woke him up. When he saw the knife he ran to the bathroom and locked the bathroom door behind him. At that point AC began “stabbing” the door with the knife actually making a large hole in the door. AC then decided to run from the apartment. She left but then decided to go back. JR called 911. AC and JR struggled when she tried to get back in. The Malden Police responded to the scene and spoke to both JR and AC. The police arrested AC and charged her with Assault by Means of a Dangerous Weapon (the knife). There was a third party present in the apartment when all this happened, a girlfriend of AC. The girlfriend told the police that JR and AC had argued first and that JR had struck AC in the mouth causing her mouth to bleed and that he had also grabbed her arms causing her arms to bruise; it was only after JR had attacked AC that AC went into the kitchen and got the knife.

AC was arraigned on a felony charge of Assault by Means of a Dangerous Weapon. AC retained Attorney Robert Lewin. In order to level the playing field Attorney Lewin had AC apply for a criminal complaint against JR for Assault and Battery (the punch to the mouth and the grabbing of her arms) as well as an abuse prevention order. A criminal complaint was issued against JR and an abuse prevention order was entered against JR. This greatly leveled the playing field and gave AC leverage to defend against the Felony Assault charge. AC had a high powered job with a high tech firm in the medical field and a felony conviction would destroy her career.

As luck would have it JR just could not stay away from AC. He quickly violated the Abuse Prevention Order twice and found himself locked up. On March 10, 2014 the charge against AC was scheduled for trial. AC and Attorney Lewin showed up in Malden Court and answered ready for trial. JR – because he had three outstanding criminal charges – exercised his fifth amendment privilege against self-incrimination and refused to testify. The case against AC was dismissed.

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On January 4, 2014 LW, a Chinese national in the US on a work visa, was arrested at his home in Malden after his wife, also a Chinese national, called the Malden Police to report that he had shoved her and slapped her on the face. He was arraigned on the charge of domestic assault & battery in Malden Court on January 6, 2014 and his case was continued to February 11, 2014 for a pre-trial hearing. LW met with and retained Attorney Robert Lewin. Attorney Lewin explained how reluctant the Middlesex County DA’s Office was to dismiss domestic assault & battery cases. Attorney Lewin spoke at length with LW’s wife; she indicated that she did not want to testify against her husband and that she wanted the case dismissed. Attorney Lewin prepared a marital affidavit which LW’s wife signed. Attorney Lewin obtained an English translation of their Chinese marriage certificate. Attorney Lewin met with the Assistant DA and presented the Marital Affidavit to the Assistant DA and put LW’s wife in contact with the Assistant DA. On February 11, 2014 Attorney Lewin and LW and LW’s wife appeared in Malden District Court. Attorney Lewin explained to the Judge that LW’s wife was present in the court and that she did not want to testify against her husband. The Judge read the marital affidavit that Attorney Lewin had prepared that LW’s wife had signed. The Judge then questioned LW’s wife to make sure that she was not being forced into not testifying against her husband. The Assistant DA then relented and agreed to dismiss the case at the pre-trial hearing. As with many of these cases, the case was won in the preparation. The result of a dismissal was critical for LW because had he been convicted or even had his case been continued without a finding then he would have been subject to deportation back to China. Needless to say he was happy with the result and he was happy that it was obtained so quickly.

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On March 14, 2014, MR, a 39 year old woman and her husband, were in the waiting room of a psychologist’s office in North Andover. They were getting divorced and were litigating in the Probate Court who was going to get custody of their 9 year old daughter. The Probate Court judge had appointed the psychologist to investigate the issue of custody. On March 14, 2014 the psychologist wanted to speak to their daughter and then to MR and her husband. While the psychologist was speaking to their daughter MR went to use the bathroom. When she exited the bathroom MR claimed that her husband (a Doctor) pushed her to the floor. The Husband claimed that MR had stepped on his foot and then in a very controlled manner fell to the floor. He claimed he never touched her. When MR landed on the floor she screamed. The psychologist came out of his office. The psychologist, MR, and her husband all called 911. The police came. The police charged BOTH MR and her husband with domestic assault. The husband wanted for both MR and himself to exercise their marital privilege and not testify against each other and have both cases dismissed. MR refused. MR retained Attorney Robert Lewin. Attorney Lewin reviewed the police reports and felt strongly that the case against MR was very weak and that MR should go to trial. MR had had the presence of mind to take pictures of a cut on her elbow and a bruise on her leg that she had sustained when her husband threw her to the floor. Attorney Lewin made color enlargements of the photos. On July 29, 2014 the case against MR went to jury trial in Lawrence District Court. Attorney Lewin had thoroughly prepared MR for her testifying at her trial. MR was concerned that her husband was a “convincing talker” and “made a nice appearance”. Attorney Lewin told MR, not to worry about her husband that Attorney Lewin would deal with his “slickness” on cross examination. The trial began; the Husband testified and Attorney Lewin through cross examination was able to show that the husband was an angry man. The jury saw it. MR testified and followed all the lessons that Attorney Lewin had given her: she looked at the jury when she testified, she was polite but firm, she answered her questions with precision and confidence. The jury went out to deliberate at 12:47 PM; seven minutes later we were all back in the court room. The Jury had reached their verdict. MR was found NOT guilty. MR was thrilled. Attorney Lewin has been practicing criminal law since 1971. In 43 years of practice this was the quickest verdict that Attorney Lewin has had. As a Judge in Lawrence District Court said to Attorney Robert Lewin recently in another jury trial that ended with a not guilty verdict, “Bob, you still got your fastball”.

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On October 28, 2013 YL, a 27 year old male Chinese national in the US on a work visa, got into a heated argument with a female roommate (named HR) in their apartment in Malden. Both YL and HR were standing at the stove and they both had items cooking on the stove in pans. It was alleged that YL – in the heat of the argument – raised his pan off the hot stove, poured the water that was in the pan on the floor, and then threatened to hit HR with the hot pan. A third roommate got between YL and HR. YL and the third roommate then left the apartment and HR called the Malden Police. The Malden Police spoke with HR and seized the pan as evidence. YL returned to the apartment while the police were there; he was questioned by the police. According to the police report he admitted picking up the pan and pouring the water out but denied raising the pan and denied threatening HR in any way. The police arrested YL and charged him with Assault with a Dangerous Weapon. This charge is a felony and would subject YL to immediate deportation back to China.

YL retained Attorney Robert Lewin. Attorney Lewin spoke with the third roommate and her statement confirmed YL’s version of what had happened. Attorney Lewin learned that HR was going back to China for at least a three month stay and would be gone during the month of January 2014. Attorney Lewin also learned that the third roommate was moving out of the apartment and her address might not be known to the government. Realizing that bench trials (a trial by a judge alone without a jury) in Malden Court can be had quickly, when the case was called in Court on January 7, 2014, Attorney Lewin requested a bench trial for January 21, 2014. On January 21, 2014 YL and Attorney Lewin appeared in Malden Court and answered ready for trial when the case was called. The Commonwealth had the police present in Court, but neither the victim (HR) nor the third witness were present. Without one of the percipient witnesses present the Commonwealth could not go forward and the case was dismissed. A percipient witness is a witness who was present at the time and place of the alleged crime. Sometimes the timing is just right.

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On June 29, 2013 FW, a 41 year old Chinese woman threatened to kill her husband with a kitchen knife and struck him with her hands. He called 911 and the Reading police responded. Once the police arrived at the home it became readily apparent that FW was mentally ill and was experiencing a paranoid break with reality. Rather than arrest her the police submitted a Section 12 Petition (a mental health commitment petition) and brought her to Winchester Hospital, She was then transferred to a mental hospital where she remained in-patient for 44 days. She was diagnosed with paranoid schizophrenia. A regimen of medications was established and her condition improved markedly over the time she was in the hospital. The police filed an application for a criminal complaint for assault with a dangerous weapon (a felony) and for assault and battery to issue against FW in Woburn District Court. FW and her husband retained Attorney Robert Lewin. Attorney Lewin immediately had FW obtain copies of her hospital records. In addition Attorney Lewin obtained reports from FW’s mental health counselor. Attorney Lewin then reached out to the Reading Police and had a substantive discussion with the police about FW’s condition and her case. Attorney Lewin suggested to the police a resolution of the case that did not involve a criminal complaint being issued against FW at the hearing before the clerk-magistrate.The police agreed not to push for the issuance of a criminal complaint at the hearing before the Clerk-Magistrate. On March 18, 2014 Attorney Lewin and FW appeared before the Clerk-Magistrate at Woburn District Court. Attorney Lewin explained to the Clerk-Magistrate that he had spoken with the police ahead of time and the two sides were asking the Clerk not to issue the complaint. The Clerk wanted to see an updated report from FW’s counselor and Attorney Lewin had obtained a report the day before the hearing. Attorney Lewin gave the report to the Clerk who read it and then agree not to issue a criminal complaint against FW. The Clerk stated that if there are no reports of any law violations by FW over the next six months then on September 19, 2014 no one would have to return to court and the Application for Criminal Complaint would be dismissed and no charges would be issued against FW. As a result FW has no criminal record, was not charged, and did not have to appear in front of Judge. In these types of cases good communication between a criminal defense lawyer and the police prosecutor can be the difference between being prosecuted and not being prosecuted. Attorney Lewin’s five years as an Assistant District Attorney and his 39 years practicing criminal defense have given him the experience and know how to deal with all these situations. FW and her husband walked out of Woburn District Court very happy that FW was not charged.

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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.

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VV, a 44 year old male immigrant from El Salvador, was in the US on a temporary work visa. In 2009 he married and shortly after getting married he bought a three family house in Lynn, MA and began the task of updating the house himself. He finished the first floor apartment and rented it out. He finished the second floor apartment and he and his wife and his wife’s son (from a prior relationship) moved into the second floor. He finished the third floor and his wife told him that she wanted him out of the house. When he refused to leave she went to Lynn District Court and applied for an abuse prevention order against him. She claimed that he had hit her. VV went into court and fought the order. After a full hearing the Judge granted the wife an abuse prevention order for one year. Thereafter, the wife reported to the police that VV had violated the order by going to the house and collecting the rent from the first floor tenants. A hearing was set up to determine whether VV would be charged criminally with violating the order. At that hearing the tenants came into court and testified that VV had not been to the house and had not collected the rent from them. The application for criminal complaint against VV was denied.

On September 4, 2013 the abuse prevention order came up for renewal hearing. On September 3, 2013 VV hired Attorney Robert Lewin to represent him at the renewal hearing. Working until 1:30 in the morning Attorney Lewin put together a memorandum for the Judge arguing that it was demonstrably true that VV’s wife lied under oath in Court. Attorney Lewin told VV to make sure the tenants came to court for the renewal hearing. On September 4, 2013 Attorney Lewin and VV appeared in Lynn District Court. VV’s wife was present. Attorney Lewin filed a notice of potential self incrimination. That was a notice to the Judge that if VV’s wife testified she could incriminate herself in the crimes of filing a false police report and perjury. VV’s wife went ahead and testified. Attorney Lewin cross examined her. VV testified and was a good witness for himself. At the end of the testimony it was clear that VV’s wife was not a credible witness. The Judge denied VV’s wife request to extend the order. The Judge wrote the following: “After two party hearing there is insufficient evidence to extend the order and the prior court order is terminated”.

With only 24 hours to prepare the case, Attorney Lewin did the work that had to be done and possessed the skill and knowledge to put together a winning case. As VV and Attorney Lewin were leaving the Lynn District Court VV turned to Attorney Lewin and said “God bless you Mr. Lewin!”; it just doesn’t get any better.

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