Not a week goes by where someone doesn’t call me to ask about the significance of a continuance without a finding. The typical question is “will I have a record if my case was continued without a finding?” The answer to this is case specific. If someone tells you that a continuance without a finding (CWOF) means that you have no criminal record you have been given bad advice. CWOFs serve a purpose that can in some instances be very beneficial. Other times however the impact of a CWOF can be devastating. This post examines certain aspects of a criminal case disposition through a CWOF. Continue reading →
Having a pending criminal case in Massachusetts can be a very unsettling experience. You might not be able to sleep. You could have trouble concentrating at work. Your social life might be impacted. Most people simply can’t control the constant worrying. Consequently, I am often asked “how long will it be before my criminal case is over?”. The answer varies depending on your particular case. This article examines factors that may expedite or delay the process of resolving criminal cases. Continue reading →
Aside from lawyers not many people want to go to court. The thought of being called as a witness can be intimidating. The majority of people simply don’t want to get involved in criminal legal matters. Very few people want to testify against someone. No one wants to take time out of his or her day to wait around a courthouse, possibly for hours, only to be inserted into other people’s problems. As such, it is not surprising that I get asked the question: “if I get a summons or a subpoena do I have to go to court?”. This post examines answers to that question in Massachusetts. Continue reading →
At least once a week a potential client will come into my office to discuss a pending case and conclude the conversation by asking me what guarantees I can give him. My answer is the same each time. There are no guarantees in this business. There are times when lawyers, based on their experience have a pretty good idea how a case will resolve and may share these experiences with perspective clients. But lets face it. No one knows for sure how any case will end up. This post examines how good lawyers manage client expectations in criminal cases and what to watch out for when deciding who to hire to defend you.
The large majority of people arrested or summonsed in Massachusetts and charged with a crime are going to get arraigned. At this stage of criminal proceedings it makes no difference to most Massachusetts judges whether or not the person is innocent or guilty. As a matter of fact, this makes no difference to most district attorneys either. In truth however it should. Anyone who gets arraigned in Massachusetts gets a PCF number. PCF stands for Probation Central File. A PCF number will follow you forever regardless of conviction, dismissal or acquittal. If you can, you want to avoid being arraigned. Usually the only way to do so is through a pre-arraignment criminal defense investigation. This article discusses some steps that can be taken towards accomplishing this goal. Continue reading →
Massachusetts General Laws Chapter 218 §35A provides a mechanism through which people can apply for criminal complaints. The process is simple. Go down to the district court clerk’s office, ask for an application for a complaint and fill it out. If the complaint is for a misdemeanor, and in some instances a felony, the clerk issues a notice to the accused for a clerk magistrate hearing. At that proceeding the clerk magistrate hears evidence and makes a determination as to whether or not probable cause exists. If it does, a complaint can issue. Sometimes, people wrongly accused of a crime such as an assault and battery, use this process as a defense. The cross-allegation is commonly referred to a cross complaint. This post looks at how cross complaints work in Massachusetts. Continue reading →
Today’s Lowell Sun reports that a Dracut, Massachusetts man has been held pursuant to Massachusetts General Laws Chapter 276 Section 58A at least until a judge can hear the prosecution’s petition for detention on dangerousness grounds. The forty five year old man allegedly assaulted a woman with a handgun. She called the police. Officers responded, searched the home and found a loaded gun. The man has been charged with assault and battery with a dangerous weapon and possession of drugs that were found in his possession. Continue reading →
One of the crimes most frequently defended by Massachusetts criminal lawyers is the case of domestic assault and battery. The statute prohibiting the conduct is Massachusetts General Laws Chapter 265 Section 13A. Not many people are aware that the crime of assault and battery in Massachusetts is a misdemeanor, punishable by up to two and one half years in the house of correction and a one thousand dollar fine. The term “domestic” does not change the actual criminal charge. Rather, it is a description commonly used by lawyers and lay people alike in reference to someone in a relationship causing physical harm to the other person in that relationship. Massachusetts judges and district attorneys for some reason seem to view assault and battery cases of this nature as being more serious than other assaultive conduct; i.e. a fist fight. For this very reason anyone charged with hitting or threatening a domestic partner should not go into court without a lawyer.
Why Are These Cases Taken So Seriously in Massachusetts?
The answer to this question is simple. The risk of harm to the victim coupled with the consequences facing the accused trigger great scrutiny of these cases. As to the victim, the prosecution and judges want to make sure that they are safe. Domestic issues are emotional issues and rationality often takes a backseat to reason and logic when emotions are tested. Ensuring that the complainant is safe from further attack is the first order of business. On the other hand, someone needs to protect the accused to make sure that his or her rights are protected as well. Domestic assault and battery allegations prompt the issuance of restraining orders. A violation of a restraining order can in some instances be a felony. For instance, an assault and battery in violation of a restraining order is a felony that can result in a five-year prison sentence. This again is reason enough for anyone charged with this crime to be represented by a lawyer.
What if I Didn’t Do Anything and the Complainant is Lying?
The sensitivity and volatility of domestic assault and battery cases usually leads judges, at least initially, to side with the complainant. No judge wants to see his or her name in the paper with an accusation that they did nothing to protect a “victim” in a domestic case. So, absent effective representation they will render harsh judgments against the accused in the form of restraining orders, pretrial detention and stiff sentences. An experienced criminal defense lawyer, properly prepared, will be able to demonstrate to the judge in appropriate circumstances that the accusations are lies. This can be done by getting witnesses to appear in court to refute the charges, show a pattern of lies in restraining order affidavits, reveal illicit motives for the duplicitous complaints and more. There is always a reason for making a false complaint of domestic abuse and a skilled defense lawyer will demonstrate this to the judge or jury. Aggressive defenses in these matters are often necessary and a quick start on your defense can save you the trouble of trying to vacate restrictions on your life at a later time.
Why Do People Lie In Domestic Abuse Cases?
There are many reasons people lie in domestic assault and battery cases. Sometimes people want to control their partner. If the complainant fears that the accused is planning to leave them a restraining order or complaint of domestic abuse gives them control during the pendency of the case. They can lie and tell the judge that the defendant violated the restraining order if the defendant does not do as they demand. Sometimes people wrongly believe that an accusation of domestic abuse will give them the upper hand in a divorce or child custody proceeding. Other times, abusing the courts with false claims of abuse is a way of “getting even” with a cheating spouse. Other times it is done out of pure evil. A good criminal defense lawyer will work with you to expose the “victim’s” illicit motives and get you a proper result in court.
The Lawrence Eagle Tribune reports that the death of a Salem, Massachusetts man might be the product of a Domestic Violence incident occurring in Gloucester yesterday. A man in an apartment complex heard a noise loud enough to cause him to look outside. He then saw the victim on the ground in the parking lot. The victim was bleeding from his left side. The police responded and located a forty-three year old Haverhill man whose truck had either run over or somehow hit the victim. After questioning the man, James Hayes was released. Hayes is the father of the victim’s girlfriend’s daughter. A witness reports that Hayes had been arguing with the victim just before the incident. No arrests have been made nor have any charges been filed.
Lawyers Who Defend People Accused of Domestic Disputes in Essex County
This article highlights why prosecutors in Massachusetts take Domestic Violence cases so seriously. They are often afraid that death or serious bodily injury can result if the situation is not diffused. Oftentimes the district attorney will ask for a high bail or for detention pursuant to Massachusetts General Laws Chapter 276 Section 58A to make sure that the accused cannot get out of jail and further assault the victim.
Interestingly enough, in some counties in Massachusetts detention is requested on every case involving an incident of Domestic Violence. Placing form over substance in these matters is not, in my opinion a prudent way for prosecutors to proceed with Domestic Violence cases. Judges can become numb to routine detention requests. Prosecutors applying this strategy risk blending the more serious cases with the less serious cases. While some judges might routinely rubber stamp a request for detention others are liable to question the integrity of the prosecutors and release people who might actually deserve detention. The Massachusetts Criminal Lawyer you hire should be someone who is familiar with the practices of the district attorneys in the county where you are being prosecuted as well as with the judges who regularly sit there. Selecting the right lawyer to defend you can make the difference between freedom and being held in jail while waiting to have your case heard on its merits.
Here is something else that interests me about this case. Why did Hayes talk to the police? Most people believe that no harm can come from talking to the police if you have nothing to hide. Most Massachusetts Criminal Defense Attorneys disagree with that statement however. Police usually ask questions designed to elicit a particular answer. The questions are not usually open ended. They are pointed and innocent answers can be interpreted as representative of criminal responsibility. Again, my advice is to never talk to the police without first discussing matters with an Experienced Criminal Lawyer.
A six year old Lynn, Massachusetts girl needed shoes brought up to her elementary school. The girl’s mother, Rosilda Lopez was called and became upset. The twenty eight year old mother went to the school and hit the girl in the face two times. The reason: wearing the wrong pair of shoes. Another child witnessed the incident. This child told school officials. It turns out that a school surveillance camera caught Lopez committing the act. Lopez has now been charged with two counts of Assault and Battery in the Lynn District Court.
Lynn, Massachusetts Criminal Defense Attorney
So here is the question raised by this case. Just how far can a parent go in physically disciplining his or her child? The answer is not easy. Spanking is a form of Assault and Battery. Yet spanking has not been outlawed in Massachusetts. In 2007 there was a bill placed before the Massachusetts Legislature proposing a ban on spanking. That bill never passed. Nevertheless, in Massachusetts Assault and Battery cases are brought against parents who have hit their children. In my opinion the line between “spanking” and Assault and Battery has not been adequately distinguished by Massachusetts law. There is a proposed jury instruction which read that a “parent, or one acting in the position of a parent and who has assumed the responsibilities of a parent, may use reasonable force to discipline (his/her) minor child. However, a parent may not use excessive force as a means of discipline or chastisement.” Yet all of the Massachusetts cases that discuss spanking conclude that the conduct by the defendant was excessive and thus did not constitute spanking but rather an Assault and Battery. As a Massachusetts Criminal Lawyer I would be concerned any time law enforcement got involved in a matter that the parent characterized as a spanking. Chances are strong that such cases will be prosecuted and most judges will not be helpful to the defense in resolving the case.
Here however the situation is likely different. Lopez’s actions are not likely to be justified if 1) the videotape shows excessive physical conduct on her part and 2) if the reason was wearing the wrong pair of shoes. Additionally, the involvement of the Department of Children and Families will complicate the defense. Lopez will want to cooperate with DCF to prevent losing custody of her daughter. There is however a risk to doing so with a pending criminal case. Lopez has a Fifth Amendment privilege that most lawyers would advise her to invoke at least until the criminal case is resolved. The conflicting dynamic between the DCF case and the criminal matter will likely lead to an expeditious resolution of the Assault and Battery case.