Massachusetts Criminal Lawyer Blog

April 15, 2015

OBSTRUCTION OF JUSTICE CHARGE – NOT GUILTY – WOBURN DISTRICT COURT

DT, a 68 year old woman from North Reading was charged in Woburn District Court by the North Reading Police with obstruction of justice. The case arose from the following facts. A man in his mid thirties was found in the parking lot of an apartment complex in North Reading obviously suffering from a drug overdose. He was foaming at the mouth and had to be rushed to a local hospital for treatment. The police discovered the man’s cell phone in the parking lot and seized it and took it to the station to search for clues as to what drugs he was on and where he had obtained the drugs. Within one hour DT, who lives in the same apartment complex with her son who is heroin dependent, called the police station saying that she had lost her phone in the parking lot and was wondering if anyone had turned in a cell phone. DT’s son was known to the police as a drug user and the police felt that DT’s mother was trying to get the phone the police had seized to prevent the police from finding evidence in the phone against her son. DT went to the police station and said she was there to pick up her phone. The police asked her whose phone she was looking for and she then said the phone belonged to her son but she had referred to it as her phone because she paid for it. The police asked her for the phone number and she gave it to the police. The police dialed the number and it went to DT’s son’s voice mail. The police accused her of lying and misleading them. The police charged her with Obstruction of Justice. DT hired Attorney Robert Lewin from North Andover. Attorney Lewin met with DT and her son and got a detailed timeline of exactly what happened.
In fact DT’s son had lost his phone the day before. DT’s call to the police (which was recorded) where she inquired about “her” phone being lost was a legitimate call. There was no evidence that she or her son knew anything about the man with the drug overdose in the parking lot. Working with DT and her son, Attorney Lewin interviewed an independent civilian witness who was prepared to testify that DT’s son had lost his phone the day before. The Government’s case was a terrible case and Attorney Lewin went to the DA and asked the DA to dismiss the case. The North Reading Police had it in for DT because her son was a drug addict. They refused to dismiss the case. The case was set down for trial. On April 14, 2015 DT, her son, the independent witness, and Attorney Lewin appeared in Court and answered ready for trial. The DA came to Attorney Lewin and offered “pre-trial probation”; Attorney Lewin refused and said to the DA the case for her innocence is overwhelming. The case proceeded to trial. Three police officers testified. Attorney Lewin’s cross examination of the police was sharp and went to the heart of the case – that DT had absolutely no intention of misleading the police. At the close of the Commonwealth’s case it was obvious that DT was innocent. Attorney Lewin rested without calling a witness. The Judge (this was a jury-waived trial) immediately found DT NOT guilty. DT had been terrified about going to trial; she did not want to go to trial and even considered pleading guilty just to avoid a trial. Attorney Lewin told her not to plead guilty to something she did not do. DT, her son, and Attorney Lewin left the court together; DT felt like she had been given her life back.

March 30, 2015

MINOR IN POSSESSION CASE DIVERTED

by Robert D. Lewin

On February 17, 2015, DR, an 18 year old senior at a local high school was in the back seat of a car with several friends. The boys were drinking. The car was parked in an area that was closed and the police approached the car and observed DR kicking what appeared to be a bottle of whiskey under the front seat. DR was ordered out of the car, admitted to the police the bottle was his, and was charged with being a minor in possession of alcohol. He was not arrested; the police applied for a criminal complaint against DR and a hearing before a Clerk-Magistrate at Lawrence District Court was scheduled. DR had been accepted to a number of colleges and was still waiting to hear from other schools and was concerned that this case would get onto his criminal record and could affect his ability to go to college. DR’s parents retained Attorney Robert Lewin from North Andover. Attorney Lewin immediately contacted the police prosecutor from North Andover and explained the situation to him and advocated for the case to be diverted out of the criminal court system and to be sent to the “juvenile” diversion program. Even though DR was not a juvenile, the Essex County Juvenile Diversion Program will accept young adults in certain cases. Attorney Lewin also spoke directly with the people from the Diversion Program and they agreed that DR was an appropriate candidate for the diversion program.On March 26, 2015 DR, his mother and father, and Attorney Lewin appeared in Lawrence District Court for the Clerk-Magistrate Hearing. Attorney Lewin made a full presentation to the Clerk-Magistrate of all the good qualities and accomplishments in DR’s background and why he merited this opportunity to keep his record clean. The Police and the Clerk-Magistrate agreed and the Clerk-Magistrate diverted DR’s case out of the criminal court system and referred DR to the Diversion Program. As a result of this disposition NO criminal complaint was issued against DR and NO criminal record was created. It is as if the incident did not happen. DR and his parents left the Court very relieved.

March 30, 2015

DOMESTIC ASSAULT & BATTERY (STRANGULATION) DISMISSED IN LAWRENCE DISTRICT COURT

by Robert D. Lewin

On Sunday, January 25, 2015, TD, a 38 year old male mental health counselor, was arrested by the Methuen Police and charged with two counts of Assault & Battery on his wife. One of the counts alleged that TD had strangled his wife. On Monday, January 26, 2015 TD was brought to Lawrence District Court and was ordered detained (held without bail). A full detention hearing was scheduled for Friday, January 30, 2015. TD’s family contacted Attorney Robert Lewin from North Andover. Attorney Lewin obtained the papers in TD’s case from the Court and then went to the jail in Middleton to meet with TD. TD’s family retained Attorney Lewin and Attorney Lewin prepared a presentation for the Judge for the detention hearing. Attorney Lewin also met with the Assistant District Attorney assigned to the case.
Ever since the Jared Remy case (he killed his girlfriend while out on release in a domestic abuse case) the Courts have gotten much stricter in these cases. Pre-trial detention used to be very rare in these cases, now it is commonplace.
On January 30, 2015 TD was brought to court and a detention hearing was held. An agreement was reached between Attorney Lewin and the DA’s Office that TD could be released but that until the case was finished he could not go home and had to wear a GPS device. TD was released and went to live with a friend in Haverhill. The case was continued to February 13, 2015. On that date Attorney Lewin petitioned the Court to allow TD to go back home and to remove the GPS device. After a full contested hearing the Judge granted Attorney Lewin’s request and ordered that TD could go back home and that the GPS device could be removed. The case was set down for jury trial on March 30, 2015. Attorney Lewin met with TD’s wife and she signed a marital affidavit stating that she would not testify against her husband. On March 30, 2015 TD and his wife and Attorney Lewin appeared in Lawrence District Court. The case was called for trial. Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin told the Judge that TD”s wife was present in court and wished to exercise her marital privilege. The Judge had a discussion with TD’s wife and the Judge accepted her exercise of her marital privilege. The DA said the state could not go forward. Attorney Lewin then moved that the case be dismissed. The judge then ordered the case dismissed. This was significant for TD as a conviction or an admission of guilt of any type that he had strangled his wife would have cost him his job and potentially would have landed him in jail. TD (and his wife) left the Court arm in arm and happy that this ordeal was behind them.

March 26, 2015

INDECENT ASSAULT AND BATTERY ON A CHILD – NOT GUILTY

by Robert D. Lewin

On March 25, 2015, following a two day jury trial in Roxbury Municipal Court, HN, a 70 year old immigrant to the United States was found NOT guilty of three sex offenses in Roxbury Municipal Court. Attorney Robert Lewin represented HN and tried the case to a Suffolk County Jury. After the two day trial it took the jury only 40 minutes to find HN NOT guilty of Indecent Assault & Battery on a child under 14, NOT guilty of Lewd, Wanton and Lascivious Acts, and NOT guilty of Enticement of a Child Under 16 for a Sexual Act.
The case began almost one year ago on May 14, 2014. HN, then age 69, was retired and lived in the Dorchester section of Boston with his wife and one high school age son. They lived on the first floor of a two family house. HN’s landlord, the landlord’s wife, and their three children lived on the second floor. For the two years prior HN drove his son and the landlord’s youngest daughter (then age 13) to school every morning and he brought them home from school every day. On May 14, 2014 HN drove to the school to pick up his son and his landlord’s 13 year old daughter (Jane, a pseudonym). Jane got into the car. Jane testified that she got into the front seat and put the radio on and they were waiting for HN’s son to arrive so they could drive home. Jane testified that HN began to touch himself and began to masturbate; Jane further testified that HN reached across the front seat and began to rub Jane’s thigh. Jane testified that she the got out of the car. The next day Jane reported this to her best friend. In turn the police were notified and HN was charged with Indecent Assault & Battery on a child under 14 (the rubbing of Jane’s thigh), Lewd, Wanton and Lascivious act (masturbating in the car in the presence of a child) and Child Enticement (having Jane remain in the car while he performed a sex act). HN absolutely denied the allegations. HN sought out a lawyer and was referred to Attorney Robert Lewin in North Andover. After meeting with Attorney Lewin HN retained Attorney Lewin. Attorney Lewin began his case preparation and he could see cracks in Jane’s account of what happened. It took eight months to fully prepare the defense; every defense witness met with Attorney Lewin several times and was fully prepared to testify. Attorney Lewin brought the Defense witnesses into the courtroom prior to the trial and showed the witnesses where they would sit when they testified and how to direct their testimony toward the jury. Attorney Lewin thoroughly studied the “SANE” interview of Jane. (A “SANE” interview is an interview of the complainant that is conducted by a sexual abuse nurse examiner; the interview is recorded – video and audio – and the defense is given a copy of the interview.) On March 24, 2015 all the parties appeared in Court. Attorney Lewin had written out his opening and closing statements to the jury and had written out his cross examination of every government witness. No detail was left for chance. As the trial proceeded Attorney Lewin could see the looks on the faces of the jurors. Jane’s credibility as a witness was eroding with every question on cross examination. At the close of the Commonwealth’s case the Judge directed a finding of not guilty on the Child Enticement charge. On March 25, 2015 at 2:05 PM the jury went out to deliberate. At 2:45 PM the jury came in with NOT guilty verdicts on the remaining two charges. HN and his family were greatly relieved. Had he been found guilty he would have had to register as a sex offender for the next 20 years and he would have been subject to GPS tracking with a bracelet and he was looking at JAIL. HN, his wife and son gave Attorney Lewin a big group hug when they got outside the Courthouse. HN went home a FREE MAN. Attorney Lewin went home to his Sicilian wife who made him a big pasta dinner! It was a good day.

March 20, 2015

INDIAN IMMIGRANT SHOPLIFTING CASE DISMISSED

by Robert D. Lewin

DL, a 25 year old Electrical Engineer from India, came to the US several years under a work visa program for skilled engineers. On November 28, 2014 DL went shopping at Kohl’s in Chelmsford. He filled his shopping basket with a number of items and then went to the register to pay. He paid for all the items except a pair of shoes that he had “stashed” at the bottom of the shopping basket. All of this was observed on closed circuit television by a loss prevention officer. DL proceeded out of the store and was immediately stopped by the loss prevention officer. He was brought back to the store; the shoes were removed from the basket; and the Chelmsford Police were called to the store. DL saw his whole future going by him; a criminal record of any kind could cause his visa to be revoked and he could be sent back to India. DL was released from the store and was told that he would receive a notice from the court. DL contacted Attorney Robert Lewin of North Andover.

Attorney Lewin immediately contacted the Chelmsford Police and obtained a copy of the police report. For persons who are not citizens it is critical to try to get these cases resolved without a criminal complaint being issued. The police assured Attorney Lewin that this case was being set up for a Clerk’s Hearing; this is critical as the Clerk’s Hearing is the chance to resolve the case without the client being charged (i.e. without a criminal complaint being issued). DL subsequently received a Notice of Complaint Hearing

Attorney Lewin advocated on behalf of the client with the police. On March 20, 2015 Attorney Lewin and DL appeared at Lowell District Court for the hearing. Attorney Lewin explained to the Clerk-Magistrate the significance to DL of a criminal complaint not being issued. Attorney Lewin presented the Clerk with all the positive achievements that DL had made in his life. The police were on board with not having a complaint issue against DL. At the conclusion of the hearing the Clerk-Magistrate said that she would NOT issue a criminal complaint against DL; the hearing was continued for three months and as long as DL stays out of trouble the application for criminal complaint will be dismissed at the end of the three months and no one will have to return to court. As a result of this disposition it is important to note the following:

March 13, 2015

SHOPLIFITNG CHARGES DISMISSED

by Robert D. Lewin

NL, a 77 year old retired school teacher, and TN, her 75 year old husband, went shopping at a boutique store in Beverly recently. NL gathered up about $200.00 worth of merchandise that she wanted. Then she saw a purse that she just had to have. She took the purse and put it inside a shopping bag that she had. Subsequently she gave the shopping bag (with the purse inside) to her husband and directed him to go out of the store and to the car with the shopping bag; meanwhile she went to the register to pay for her other items. The loss prevention officers saw it all and brought both NL and her husband into the office. The Beverly police were called and responded to the store. The police told NL and TN that they had to stay out of the store and that they would receive a summons. The summons came. NL and her husband contacted Attorney Robert Lewin in North Andover. Because of their age and disabilities Attorney Lewin made a house call – he only does this with aged and infirm clients who do not have a way to get to his office. NL and TN were all nervous about having to appear in Court. Attorney Lewin told them not to worry, that he would get them a very favorable disposition. The case was scheduled for arraignment in Salem District Court on Wednesday, March 11, 2015. The day before the scheduled arraignment Attorney Lewin went over to the DA’s Office and explained the case to the DA. Attorney Lewin asked the DA to dismiss the case. The DA agreed. On March 11, 2015 NL, her husband, and Attorney Lewin appeared in Salem District Court. The case was called and Attorney Lewin explained to the Judge that the DA had agreed to dismiss the case. The Judge ordered the case dismissed. NL and TN were very relieved. The case got resolved both favorably and quickly due in part to Attorney Lewin going over to the DA’s Office and speaking directly with an Assistant DA before the Court date.

February 10, 2015

JUVENILE DOMESTIC ASSAULT & BATTERY ON GIRLFRIEND CASE DIVERTED

by Robert D. Lewin

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.

February 9, 2015

HIT & RUN CHARGE AVOIDED

by Robert D. Lewin

On November 30, 2014 NP, a 30 year old mother of two young children was driving north on Route 495 in Chelmsford. She had her two children in the backseat in car seats. One of the children started coughing and NP turned to look back to make sure the child was okay. When she turned, her car veered to the right and she saw she was about to strike a car in the lane to her right. She pulled the steering wheel to the left and avoided a collision – so she thought. The driver in the car to her right flashed his lights at her and waived for her to pull over. She refused and continued on Route 495 to Route 93. She then proceeded onto Route 93 North and noticed the other vehicle was still following her with his hazard lights flashing. Suddenly two state police cruisers pulled NP over. According to the State Police report the other driver claimed that NP’s vehicle had struck his vehicle and failed to stop. Also according to the State Police report NP admitted to the officer that she knew that she had struck the other vehicle. The trooper issued NP a citation for Leaving the Scene of a Property Damage accident. NP immediately hired Attorney Robert Lewin from North Andover.

The case got strange. NP insisted that she spoke with a female state trooper and that she told the female state trooper that she had NOT hit the other vehicle. There was no damage to NP’s vehicle.NP denied speaking with the male state trooper. It was the male state trooper who wrote the police report and who claimed that NP had admitted striking the other vehicle. Attorney Lewin secured photos of NP’s vehicle showing no damage. Attorney Lewin obtained confirmation from NP’s insurance company that NO claim had been made against her insurance company for damage to the other car. Attorney Lewin was able to confirm that there was a female state trooper on scene and who that female state trooper was. The female state trooper denied any interaction with NP!

On January 22, 2015 NP and Attorney Lewin appeared at Lawrence District Court for a Clerk-Magistrate’s Hearing. The State Police Prosecutor read the police report which included NP’s alleged confession. NP was well prepared and testified. She vehemently denied any contact between her car and the other car. NP denied making any “confession” to any police officer. Attorney Lewin presented photos of NP’s car showing no damage. The State Police had no photos of the other vehicle. In addition Attorney Lewin presented a copy of NP’s Insurance Coverage Page showing that her vehicle was fully insured and lastly Attorney Lewin presented evidence that no claim for damage had been made for any alleged damage to the other vehicle. Attorney Lewin argued to the Clerk-Magistrate that the police report was not credible and that the state had failed to prove that there had been a collision or any damage to the other vehicle. The Clerk-Magistrate agreed and denied the application for a criminal complaint that had been filed by the state police. NP was not charged. The case was won in great part because it was well prepared.

February 8, 2015

TRUCK DRIVER FOUND NOT GUILTY OF RECKLESS OPERATION AND ASSAULT WITH DANGEROUS WEAPON

by Robert D. Lewin

On December 11, 2013 NP, a 52 year old over the road truck driver (2 million accident free miles) was operating a tractor pulling 2 trailers from Manchester, NH to Southboro, MA. As he traveled down Rt.3 he crossed from NH into MA. He was following a woman driving a car in the middle lane. He pulled to the right travel lane and as he began to pass her she speeded up and refused to let him pass. He moved in behind her again and she braked causing him to brake and he then moved again back into the right lane and again she refused to let him pass. He then moved in behind her again and this time she braked hard; he checked his mirrors and knew the left lane was clear and he moved into the left lane (illegal); again she refused to let him pass. Now he moved from the left lane, to the middle lane, to the right lane. Once in the right lane he began to pass her. The lady told the police he drove the truck at her car causing her to swerve left away from the truck. She drove off the road into the grass median where her car came to rest. The truck meanwhile went into the breakdown lane and the second trailer went onto its right side and slid for a distance of about 300 feet. NP told the police that once he was in the right lane the lady swerved to the right toward his truck and then she swerved left and lost control. NP told the police he turned to the right to avoid hitting her car. The police charged NP with the following offenses: Reckless Operation, Assault with a dangerous weapon (the truck)(a felony), Following Too Close, Speeding, Marked Lane Violation, and Left Lane Operation. NP retained Attorney Robert Lewin of North Andover. A conviction would have cost NP his CDL and his livelihood. The State Police had a witness who claimed he was a truck driver who said he had seen the entire scene and in his opinion NP had tried to “kill the girl” in the car by swerving his truck at her. The girl’s boyfriend had been driving his pickup and he told the police that the truck had been tailgating his girlfriend.

On January 26, 2015 the case went to trial in Lowell District Court. A jury was chosen; the girl testified and the State Trooper testified. At the close of the Government’s case Attorney Lewin moved for a required finding of not guilty. The trial judge agreed that on the charge of Assault with a Dangerous Weapon the government had failed to put in any evidence that the girl was put in fear and the Judge ordered a finding of not guilty on the felony assault charge. NP – who had been painstakingly prepared to testify – then took the witness stand and testified. He was a great witness. He looked at the jury when he testified; he took his time; he knew the answer to every question he was asked. There were no questions for which he was not prepared. After he testified both sides rested. Attorney Lewin made an impassioned argument to the jury. The Judge then instructed the jury and at 1:00 PM the jury went out to deliberate. The judge excused everyone for lunch and instructed everyone to be back at the courtroom at 2:00 PM. When NP and Attorney Lewin returned from lunch at about 1:50 PM the court officer came over and told them there was a verdict. At 2:00 PM everyone assembled in the Courtroom. NP and Attorney Lewin stood up and the jury then announced their verdict on the reckless operation charge. They found NP not guilty. The Judge (who decides the civil motor vehicle infractions) then found NP not responsible of the speeding charge, the following too close charge, and the marked lane violation. The only charge NP was found responsible of was the Left Travel Lane Restriction Violation. NP and his family were thrilled with the result. The key to the win was in NP’s preparation to testify.

February 6, 2015

INSURANCE FRAUD CHARGE DISMISSED

by Robert D. Lewin

On April 21, 2011 FN drove her car to the supermarket in Lynn and went into shop. When she came out of the market the side of her car had extensive damage. The next day FN drove her car to a body shop and reported the accident to her insurance company. She filed a motor vehicle damage claim with the insurance company.The insurance company sent out an adjuster to examine the car; the damage did not appear to be consistent with FN’s account of what happened. The insurance company brought in an accident re-constructionist who thoroughly examined the car. The expert concluded that the car had been moving (and the wheels turning) when the car came into contact with a utility pole that was soaked in creosote. There was creosote on the wheels and the body panels consistent with the car striking a utility pole while the car was moving forward. The insurance company refused to make payment. According to FN the body shop fixed her car and did not charge her. The body shop then went out of business and FN sold the car.

Three years later(!) the Lynn Police charged FN with filing a false insurance claim and attempted larceny. FN retained an attorney from Boston; the attorney negotiated a “plea bargain” with the District Attorney’s Office that required FN to admit that she was guilty and that would have required her to be on probation for six months. FN called Attorney Robert Lewin in North Andover to get a second opinion. Attorney Lewin told FN that she was not guilty and should not be discussing plea bargains for a crime that she did not commit. FN the retained Attorney Lewin. Attorney Lewin spoke immediately with the District Attorney. After several discussions between Attorney Lewin and the District Attorney the DA agreed to dismiss the charges against FN.

On February 5, 2015 FN and Attorney Lewin appeared in Lynn District Court. Both criminal charges against FN were dismissed. FN left the courthouse smiling.