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Judge in Lowell District Court Holds Man on Gun and Assault Charges

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. Massachusetts Assault Defense

Domestic Assault, Guns and the Issue of Bail

Anytime a domestic assault and battery case is arraigned in Massachusetts involving allegations of the use of a firearm you can be assured that a very high bail will be set by the judge. More likely, the individual charged with be detained under the dangerousness statute at least until a judge hears sufficient evidence to make a bail order that satisfies him that if released the public will be protected. Here, it comes as no surprise that the accused, Shaun Silva is being detained.

The Massachusetts bail statute requires that, among other things judges weigh the strength of district attorney’s case. Often allegations of domestic abuse are viewed as difficult to prove in that, as here, victims tend not to cooperate or they recant their complaint. Since the decision in Melendez-Diaz it is generally held that 911 calls alleging domestic assault and battery are inadmissible against the defendant, particularly where the victim is not cooperating with the prosecution. The exception is where the 911 call is made during the act itself. That seems to be the case here. During the 911 call the victim supposedly told Silva to get the gun out of her face. If true, that portion of the 911 call might be admissible at trial even if the woman is not cooperative. Thus, in the mind of the judge hearing the bail argument the tendency might be to hold Silva.

The Victim, If Uncooperative Might be Forced to Testify

Years ago, regardless of the viability of a privilege, Massachusetts domestic assault cases were not prosecuted where the victim did not want to go forward except in rare, extremely violent situations. Over time that has changed. Now, even if victims can assert a martial privilege or a Fifth Amendment privilege the prosecution will try to make its case. Here, it appears that the victim is not Silva’s wife, thus no marital privilege. There is no indication that a Fifth Amendment privilege exists either. No matter what position the victim takes in this case she will probably be subpoenaed and compelled to come into court and testify. This, coupled with the 911 call and the police actually finding a gun means that Silva needs strong criminal defense representation.

Domestic Assault and Battery Defense

While the Lowell Sun article makes this case look strong for the district attorney there will no doubt be some viable defenses for Silva. Having an experienced defense attorney will help. We have been defending these cases for nearly three decades. Call us at 617-263-6800 if you need help.