WK, a 50 year old engineer and his wife, lived in Andover. One Saturday evening in February 2013, after a night of dining out and drinking, WK and Mrs. K returned home. An argument ensued. According to the Police Reports WK punched his wife in the face giving her a swollen, black eye. The police reports further indicated that WK stuck his thumbs into his wife’s mouth and she bit down hard on his thumb breaking the skin. She grabbed a phone in an attempt to call 911; he grabbed the phone from her. She ran to the garage in her nightgown and bathrobe, got in the car, and fled to the Police Station. At the station, color photos were taken of her face and eye. Mrs. K gave a complete statement of what happened. The police were dispatched to the family home. WK was arrested and charged with Assault & Battery, Witness Intimidation, and Threat to Murder. According to the police report she told police he threatened to murder her. Also according to the police report when asked to give his version of what had occurred WK told police he “bashed” his wife. WK was held without bail over the weekend at the Middleton Jail. On Monday morning he was brought to Lawrence District Court and arraigned and released. He was ordered not to abuse his wife. The case was continued for a pre-trial hearing.
WK retained Attorney Robert Lewin. As often happens in these cases, as time passed Mrs. K decided she would not testify against her husband and she executed a marital affidavit that Attorney Lewin prepared. The parties appeared in Lawrence District Court for the pre-trial hearing and the Judge, after speaking with Mrs. K, accepted her exercise of her marital privilege and excused her from testifying. The D.A.’s Office refused to dismissed the case and the case was set down for trial.
On Wednesday, June 26, 2013 WK and Attorney Lewin appeared in Lawrence District Court ready for trial. Mrs. K was not present. Two Andover police were present. Attorney Lewin prepared a Motion in Limine to Exclude all statements made by the wife to the police at the police station. Attorney Lewin also prepared a Motion in Limine to Exclude the Photo the police had of Mrs. K. The basis for excluding the statements made by the wife to the police was that the statements were hearsay and that the statements were not “spontaneous utterances” (an exception to the hearsay rule). To the great surprise of the Defense the DA’s Office did not object to the Motion to exclude Mrs. K’s statements to the police. (The particular judge who was hearing the case would most likely have denied the Motion and would have allowed the statements into evidence; it was an unforeseen break in the case when the DA did not oppose the Motion.) The Assistant DA did object to the Motion seeking to exclude the photograph. Attorney Lewin argued that there was no way the Commonwealth could prove – given the witnesses on the State’s witness list – that the woman in the picture was the Defendant’s wife. Remember, Mrs. K was not present at the trial. The police were not allowed to testify as to ANY statements Mrs. K made to the police (including for example her name, address, and the fact that she was married to Mr. K). There was no witness who had knowledge (independent of what Mrs. K had said to the police) that the woman in the picture was Mrs. K. The Judge reserved a ruling on the Motion to Exclude the photo. A jury was chosen and sworn. The DA finally realized that the Commonwealth’s case had fallen apart and the Commonwealth said they could not go forward. Attorney Lewin immediately moved that all the charges be dismissed with prejudice. A dismissal with prejudice means the case can NOT be brought again. The Judge ordered all three charges dismissed with prejudice.
If convicted – given the injuries to his wife and given the judge who was presiding that day – WK would have been sent to the House of Correction in Middleton. In addition, he was from a European Country and would have been deported. Because of his status in the US he could not plead to the case and had to fight it. A bit of luck and some very creative lawyering saved the day for WK.