Articles Posted in Domestic Assault Cases

Wednesday, April 17, 2013 was a busy day for Attorney Robert Lewin. At 9:00 AM Attorney Lewin appeared in Malden District Court representing DB, a 50 year old man charged with Assault and Battery on his wife. As happens in many cases of alleged domestic assault and battery, by the time of the pre-trial hearing in this case Mrs. B decided she did not want to testify against her husband. Mrs. B spoke with Attorney Lewin and Attorney Lewin prepared a “marital affidavit” in which Mrs. B swore that if called as a witness against her husband she would exercise her “marital privilege” and refuse to testify. In Massachusetts husbands and wives have a privilege not to testify against each other in a criminal trial.

The DA’s Office was unwilling to dismiss the case at the pre-trial hearing and a trial date of April 17, 2013 was set. On April 17, 2013 Attorney Lewin, DB and Mrs. B appeared in Malden Court. The case was called and Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin told the Judge that Mrs. B was present in the courtroom and was prepared to exercise her marital privilege. The Judge called Mrs. B forward and made inquiry of her as to whether she wished to testify or not and whether or not anyone had forced or coerced her into exercising her marital privilege. Mrs. B said she did not want to testify and no one had forced or coerced her into exercising her marital privilege. The Judge then accepted her exercise of her marital privilege. The DA said they could not go forward; Attorney Lewin moved to dismiss the case and the Judge ordered the case dismissed for lack of prosecution.

Attorney Lewin then left Malden Court and drove over to Cambridge District Court (now located in Medford just off Wellington Circle). HK, a 34 year old Egyptian national, was accused of Assault & Battery, Assault and Battery with a dangerous weapon (a headboard of a bed), Intimidation of a Witness, and Threat to Commit a Crime. According to the police reports HK and his 25 year old girl friend had gotten into a heated argument; it was alleged that HK got on top of his girlfriend and pushed her head into the headboard of a bed, took her cellphone, and threatened to kill her. According to the police report as she called 911 he fled the apartment. He was apprehended outside the apartment in his car. The girlfriend decided she did not want to see HK prosecuted; however, because they were not married she did not have a “marital privilege” and the government could force her to testify. In the police report there was an indication that the girlfriend had “pushed” HK; there was also a claim that the girlfriend had kicked HK.

On February 3, 2013, JC, a 45 year old married woman, got into a heated argument with her husband. She had been drinking and eventually he ended up with a large bloody laceration to the back of his head. Some nick nacks got broken and a door got smashed. This was not one of her better nights. A call was made to the local police by JC’s daughter and JC got arrested and charged with Assault & Battery with a Dangerous Weapon (a felony) and Assault & Battery (a misdemeanor). The next morning JC appeared in Lowell District Court and was arraigned and released. Her case was continued for a pre-trial hearing to March 6, 2013. JC contacted Lewin & Lewin. JC does not drive so Attorney Robert Lewin made a house call to meet with JC and her Husband. Attorney Lewin explained the marital privilege to JC and her Husband and explained that if the Husband exercised his privilege not to testify against JC that it was possible the case would be dismissed. Every Husband and every Wife in Massachusetts has a privilege not to testify against their spouse at a criminal trial. This is called the marital privilege. JC retained Attorney Lewin. Attorney Lewin prepared and the Husband signed a marital privilege affidavit. Attorney Lewin contacted the District Attorney’s Office and sent them a copy of the Affidavit signed by the Husband. On March 6, 2013 JC and her Husband and Attorney Lewin appeared in Lowell District Court. Attorney Lewin gave the original marital affidavit to the Judge and explained the case to the Judge. Attorney Lewin told the Judge that the Husband was present in the Courtroom and wanted to exercise his marital privilege not to testify against his wife. The Judge asked the Husband if he wanted to refuse to testify against his wife and the Husband said yes. Attorney Lewin asked that the case be dismissed; the District Attorney objected stating that there was an independent witness (JC’s daughter) and that the Commonwealth could proceed with the case against JC without the Husband’s testimony. Attorney Lewin had previously interviewed the daughter and knew that she would testify that she was upstairs in her bedroom when the fight occurred and that she did not see any of the goings on between her mother and father. She heard loud shouting and that is what led her to call the police; but she did not see anything. The District Attorney asked that the case be continued for trial so that they could bring the daughter in. Attorney Lewin objected strenuously and told the Judge that the daughter had not seen anything and that her testimony would not help the Commonwealth prove the case against JC. Attorney Lewin suggested that the District Attorney call the daughter on the phone and speak to her (something they should have done earlier) so that the case could get resolved that day. The Judge agreed that that was a good idea. The District Attorney called the daughter and she confirmed that she had not seen anything, that she had been in her bedroom. The case was called again and the District Attorney filed a nolle prosequi. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth. JC and her husband walked out of the courtroom arm and arm and very happy. The case had been thoroughly prepared; the husband and the daughter had been interviewed at the start by Attorney Lewin and he knew what each of them was going to say.

SD, a computer engineer, and his wife, also a computer engineer, immigrated to the US from India. They are both permanent resident aliens. Tensions developed in the marriage and one night Mrs. D called 911 and the police responded. She told the police that SD had struck her and thrown things at her. The police arrested SD and he was charged with Assault & Battery and Assault & Battery with a Dangerous Weapon. These are both deportable offenses. SD contacted and interviewed a number of lawyers and after much negotiation SD retained Attorney Robert Lewin. Attorney Lewin spoke with Mrs. D and he explained the marital privilege to Mrs. D. Fortunately for SD his wife decided that she would not testify against him. Attorney Lewin prepared a marital affidavit for Mrs. D in which she exercised her marital privilege. Attorney Lewin then contacted the Assistant DA handling the case and gave him a copy of the affidavit. On Wednesday, February 13, 2013 SD and his wife and Attorney Robert Lewin appeared in Malden District Court for a pre-trial hearing. Attorney Lewin put the Assistant DA in contact with Mrs. D and she confirmed that she did not want to testify against her husband. The case was called and Attorney Lewin explained the situation to the Judge. The Judge questioned Mrs. D to make certain that her exercise of her marital privilege was done freely and voluntarily. Attorney Lewin then asked the Judge to dismiss the case; the Assistant DA did not oppose and the Judge ordered the criminal charges dismissed. The threat of deportation is now completely removed. SD and Mrs. D have some work to do if their marriage is going to be salvaged, but the criminal case is gone.

On September 29, 2012 LF left his home to find his 17 year old daughter who had run off in the middle of the night with two unknown men. He found her and attempted to get her to get in his car. She resisted. He called the police and got himself arrested for assault and battery on his daughter.He went to Court the next morning to get arraigned. He tried to explain what had happened and that it was he who had called the police. His daughter was present at Court and tried to speak on his behalf but the DA and the Judge would not hear any of it. LF was arraigned; he was told to get a lawyer; and he was told not to abuse his daughter. His case was continued to November 28. LF retained Attorney Robert Lewin. It appeared from the police reports that the daughter had in fact assaulted (kicked) her father. It became clear that the daughter had a Fifth Amendment right to remain silent. Counsel was obtained by the daughter. The daughter’s lawyer recognized that the Daughter could herself be prosecuted for Assault and Battery and that it was in the daughter’s best interest to exercise her Fifth Amendment right to remain silent. Attorney Lewin spoke with the Assistant District Attorney and explained the situation that the daughter would not testify against her father and that the daughter would exercise her valid Fifth Amendment privilege not to incriminate herself.Normally, the District Attorney’s Office refuses to dismiss these cases at the pre-trial and insists that everyone come back for the trial date.On November 28, 2012 LF and Attorney Lewin appeared in Lawrence District Court for a pre-trial hearing. Attorney Lewin explained the situation to the Judge. The Judge called the daughter and her lawyer forward. The Judge inquired of the daughter regarding her Fifth Amendment privilege. The Judge accepted the Daughter’s exercise of her Fifth Amendment privilege. Attorney Lewin moved the Judge to dismiss the case right then and not make everyone come back on a later trial date. The DA relented and the Judge ordered the case dismissed. Getting the case prepared well in advance and making certain that all the necessary persons were present at the pre-trial brought about this very favorable result.

DK and LL had been in a relationship for several years and lived together at DK’s house. The relationship was good, except that LL had a big problem with DK’s ex-wife. On a beautiful spring day, the pair decided to take DK’s motorcycle for a nice day-long ride. They had a wonderful day together and returned home. That’s when trouble began. DK’s ex-wife called and began arguing with DK. LL was not happy with the manner in which DK handled the telephone, got angry with DK and began drinking. Within a matter of minutes, LL’s demeanor changed significantly, she became angry, intoxicated, and was yelling and screaming at DK. The pair separated–DK stayed downstairs and LL went upstairs. Eventually, DK went upstairs to go to bed. LL was not in the bedroom and DK crawled into bed and turned out the lights. Soon thereafter, LL approached and began yelling at DK and poking him in the back. She left the room and returned again shortly thereafter. As DK heard her walking towards him and then felt her hand touch his back again, he reached out with his arm to stop her. The next thing he heard was a loud crash. LL had fallen backwards and hit her head on a sharp marble fireplace next to the bed. There was blood all over the bed and the floor. LL ran into the bathroom, locked the door and called 911. The police quickly arrived at the house and arrested DK and charged him in the Malden District Court with domestic assault and battery. DK hired Attorney Joshua Lewin of the Law Firm of Lewin and Lewin to defend him against the charges. LL did not want DK to be prosecuted, but the Assistant District Attorney refused to drop the case and insisted that the case be prosecuted. DK and LL entered into an “Accord and Satisfaction”, which is a private civil agreement to settle the dispute without criminal charges. Such an agreement, however, requires that a Judge agree to dismiss the charges. In this case, there were photos of the crime scene showing substantial amounts of blood and a copy of the 911 call had been determined to be admissible in evidence. The Assistant District Attorney objected to the case being dismissed and the Judge indicated that his practice was to not dismiss these types of cases if the Assistant District Attorney objected. On January 24, 2012, the morning of trial, with all witnesses present in court, Attorney Lewin argued persuasively to the Judge that he should dismiss the case even though the Assistant District Attorney objected. There were lengthy arguments. Ultimately, Attorney Lewin persuaded the Judge to deviate from his practice and to dismiss the charges. The case was dismissed and DK walked out of Court without any penalties. There are many strategies for winning a domestic assault and battery case, including through the use of an ‘accord and satisfaction.’ The lawyers at Lewin and Lewin have a long track record of using these strategies to successfully defend their clients in assault and battery cases.

NF and her domestic partner of 23 years live together in Andover, MA. On September 21, 2011 the two women got into an argument; the argument turned physical; punches were thrown and a glass bowl got tossed and smashed. The partner called the police to get NF removed from the house. The police repsonded and saw the partner with a black eye and NF got arrested and charged with Domestic Assault and Battery and Assault with a Dangerous Weapon (a glass bowl). The police photographed the partner’s black eye. NF appeared in Court for an arraignment on the next morning and her case was continued for a pre-trial hearing to November 4, 2011. On Saturday morning September 24, 2011 NF and her partner met with Attorney Robert Lewin in Andover for a free initial consultation. During that initial meeting Attorney Lewin learned that NF herself had received several bruises in the fight and Attorney Lewin had photographs taken that day of NF’s bruises. Attorney Lewin prepared an Accord and Satisfaction and a Fifth Amendment Affidavit for the partner to sign. The partner did not want NF to be prosecuted and wanted the case dismissed. Massachusetts Law permits the accused and the “victim” in an assault and battery case to work out a financial settlement of the case. That financial settlemnt is called an Accord and Satisfaction. Upon the filing of an Accord and Satisfaction a judge has the discretion to order an assault and battery charge dismissed. The judge is not required to dismiss the assault and battery but the judge may order the assault and battery charge dismissed. Technically an Accord and Satisfaction does not apply in the case of a felony. Assault and Battery is a misdemeanor in Massachusetts. Assault with a Dangerous Weapon is a felony and technically an Accord and Satisfaction is not available for the felony charge. In addition to the Accord and Satisfaction Attorney Lewin also prepared a Fifth Amendment Affidavit for NF’s partner to sign. Because the partner had exposure herself to being prosecuted for Assault and Battery against NF, the partner had an absolute right not to incriminate herself and therefor an absolute right not to testify in the case against NF. On September 28, 2011 Attorney Lewin met with the Assistant District Attorney assigned to the case for a pre-trial conference. Although the DA’s Office recognized that the partner had a right not to testify the DA’s Office was unwilling to dismiss the case at the pre-trial hearing. As they always do, the DA’s office was insisting that the parties appear for a pre-trial hearing and that the case then be set down for trial on a date thereafter. On Thursday, September 29, 2011(8 days after the fight) Attorney Lewin had the case brought forward and Attorney Lewin, NF and her partner (the named victim in the case) all appeared in Court. Attorney Lewin presented the written Accord and Satisfaction and the written Fifth Amendment Affidavit to the Judge. The Judge asked if the partner was present in Court and Attorney Lewin had her come forward. The Judge then determined that the partner had a valid Fifth Amendment claim. The Commonwealth conceded that they could not go forward without her testimony. Attorney Lewin moved for dismissal of the charges; the Assistant District Attorney objected and asked that the case be set down for trial. Over the objection of the Assistant District Attorney the Judge ordered the case dismissed. It took just eight days from the date of arrest (September 21, 2011) to dismissal of all the charges (September 29, 2011). Both NF and her partner were thrilled that the case got disposed of so favorably and so quickly. The results in this case are common at Lewin & Lewin. We don’t sit back and wait for things to happen; we make things happen and we do it quickly.

SM, a 26 year old male bookkeeper, was charged in Malden Court with assault and battery on his girlfriend on March 1, 2011. The allegation arose from a fight that he and she allegedly had; she claimed in her affidavit for an abuse prevention order that he had pushed her up against a railing and grabbed her around the throat, choking her. She also claimed that he had banged her face into a door leaving her with swelling on her forehead for which she went to the hospital. SM had two prior domestic assault and battery charges on his record and four prior abuse prevention orders that had been taken out against him by four different women over an eight year period. The Middlesex County D.A.’s Office did not want to let go of this case. SM retained Attorney Robert Lewin. The police reports were reviewed along with the girlfriend’s affidavit; the reports and the affidavit did not add up. Ultimately the girlfriend told Attorney Lewin that SM had not assaulted her and that she had lied. Attorney Lewin put the girlfriend into contact with the Assistant D.A. The D.A.’s Office ultimately agreed to dismiss the charge against SM. On May 17, 2011 SM appeared in Malden Court. Attorney Lewin pressed for the dismissal to enter prior to SM’s arraignment. The significance of the dismissal entering prior to arraignment is that the charge does not go onto SM’s criminal record. Once the arraignment takes place a criminal record is created. As a result of this case not going onto SM’s record he will be eligible in May of 2012 to have his remaining criminal record sealed. SM and his girlfriend walked out of court arm in arm – go figure.