ED, a 37 year old counselor from Manchester, NH had a problem. He would go to the shopping malls to the food court and sit in the food court among many other patrons (and children) and put his hands down his pants and masturbate. ED was observed in the North Shore Mall in Peabody on June 24, 2016. On that day a female patron and her young daughter were in the food court sitting at a table across from ED and observed that his hand was down his pants and he appeared to be masturbating. The woman got up and reported her observations to mall security. ED left the mall on that June date before mall security could confront him. The woman gave a detailed description of ED.
On July 1, 2016 (7 days after the June 24 incident) ED was again at the North Shore Mall in the food court. Based on the description that had been furnished by the witness on June 24, 2016 mall security observed ED in the mall and felt he may be the person that the witness described in the June 24 incident. Mall security began to observe ED. The security guard in his report wrote that ED sat at a table in the food court; that ED then put his left hand down the front of his pants and his hand was moving up and down in the area of ED’s genitals. The security guard continued that at one point ED’s eyes closed and ED’s legs were shaking. The security team then approached ED and confronted him. He said his hand was in his pocket.
ED was very lucky. The police could have arrested him; the police chose not to arrest ED but rather told him he would receive a notice from the Peabody District Court. The Police filed an application for a criminal complaint to be issued against ED for Lewd, Wanton and Lascivious Conduct. The application was set up for a Clerk-Magistrate Hearing on September 27, 2016. The purpose of the hearing is for the Clerk-Magistrate to determine whether there is probable cause to issue a criminal complaint. There was plenty of probable cause in ED’s case.
ED consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin stressed the importance of ED getting involved in treatment or counseling for this behavior. Attorney Lewin told ED that he would want an initial report from the counselor for use at the clerk-magistrate hearing to show that ED was in fact in treatment.
Attorney Lewin then reached out to the Peabody Police Prosecutor and had a lengthy conversation with the police prosecutor about the case and about ED. It is highly unusual for an application for a criminal complaint for a sex offense to be denied at a clerk-magistrate hearing.
On September 26, 2016 ED and Attorney Lewin appeared in Peabody District Court for the hearing. ED’s counselor had furnished a written report to Attorney Lewin. During the hearing Attorney Lewin made a lengthy pitch to the clerk-magistrate to not issue the criminal complaint but rather to hold the matter in the clerk’s office. The Clerk-Magistrate, after some discussion with Attorney Lewin and the police prosecutor agreed. The Clerk-Magistrate ordered the hearing continued for one year to September 12, 2017. ED agreed to remain in counseling and to furnish two interim reports from the counselor to verify that he remained in treatment. ED complied and on September 12, 2017 the application for criminal complaint against ED was dismissed without any criminal complaint ever issuing against ED.
As a result of this disposition Attorney Lewin explained the following to ED:
- ED was never arrested.
- ED was never charged. NO criminal complaint was issued against ED.
- ED has NO criminal record as a result of this incident. There is NO entry in the Massachusetts Criminal Record System (CORI) as a result of this incident.
- It is as if this incident never happened.
On September 12, 2017 ED called Attorney Lewin to thank him. ED is a happy camper!