The Police Respond
Attorney Kevin J. Mahoney has successfully defended hundreds of individuals accused of domestic assault & battery in the courts of Boston, Cambridge and throughout Massachusetts. In most cases, he is able to convince District Court judges to dismiss the charges. If not, he has an unmatched trial record of obtaining acquittals. Give Attorney Mahoney a call at 617-492-0055 to arrange a free consultation.
At one time, police officers responding to a domestic disturbance or altercation attempted to calm down or, if need be, restrain the husband or wife. The "fight" did not necessarily end in an arrest, even if the wife accused the husband of assault and battery. Police departments entrusted the responding officers with the responsibility of assessing the situation and with exercising their judgment regarding the necessity of an arrest. Society recognized that, perhaps, for the good of the family a domestic incident could be managed short of an arrest. By allowing officers to exercise some discretion in dealing with family disputes, police departments provided an invaluable service to the community and to the family itself.
Unfortunately, today, the cop on the beat, with his years of experience and training, is no longer trusted to evaluate the seriousness of a domestic dispute. Judgment has been usurped by policy -- policy created by those who, more than likely, have never walked the beat. These police officers, denuded of discretion and discouraged from developing their judgment, have now been reduced to programmed robots. The wise cop on the beat is now the regulation citing automaton.
Today, most Massachusetts police department guidelines actually require the officer to arrest the husband on nothing more than an unsupported allegation of assault and battery – even if the wife recants and pleads with the officers not to arrest him. The officers will make an arrest, even if the "assault and battery" amounts to no more than a push or a slap. To make a legally valid arrest, the police require no more than the accusation; they do not need any corroborating evidence, such as a bloody nose or even some bruising.
Such begins the couple's frustrating, if not frightening, and unwanted odyssey through the system.
The Booking
Once the police arrest the husband, they will bring him back to the police station for booking. Following booking, the police will summons the clerk to the station to set the bail. Unlike most citizens accused of misdemeanors, the clerk will likely deny bail to the male accused of domestic violence. The man will be kept overnight in a small jail cell.
The Arraignment
In the morning, he will be brought to courthouse where he will be arraigned on the charges. At that time, the prosecutor may or may not ask the Court to set bail or to hold him as a dangerous person. The husband will need to retain a lawyer.
District Attorney's officer moves the
court to detain the accused as a "Dangerous Person"
Despite the constitutional proclamation that a citizen accused of a crime is presumed innocent unless proved guilty before a jury of his peers, prosecutors may move the court, under G.L. c. 276, §58A (hereinafter "58A"), to detain the accused before his trial, in the county jail, for up to 90 days as a dangerous person.
Crimes for Which D.A. can move for Pre-Trial Detention
While a 58A is commonly associated with domestic abuse cases, a prosecutor can ask a court to detain a citizen if he is accused of:
- a felony involving "the use, attempted use or threatened use of physical force against the person of another";
- a felony involving a "substantial risk" that physical force against another may result (i.e., burglary, arson) – even if no person has actually been placed at risk of injury;
- violating a restraining order;
- a misdemeanor or felony involving "abuse" as defined in G.L. c. 209A;
- a drug offense which has a mandatory minimum sentence of three years or more; and,
- a third or subsequent conviction for motor vehicle offenses (usually drunk driving offenses).
The Accused is Entitled to a Hearing
Before the court can detain the accused at the request of the prosecutor, it must hold a hearing. The hearing should be held on the day the accused is first brought to court (usually for arraignment). However, the prosecutor may petition the court to continue, for up to three business days, the hearing. To obtain the continuance, the prosecutor must demonstrate “good cause” and there exists probable cause to believe the accused committed the offense.
The Hearing
At the hearing, the accused has the right to be represented by a lawyer, to cross-examine the prosecutor's witnesses, to call witnesses on his own behalf, and to introduce any other information relevant to the issue of dangerousness. The hearing itself is almost like a mini trial, with the judge making the rulings of law and finding the facts. Nevertheless, it represents an unparalleled opportunity for a defense attorney to learn much about the quantity and quality of evidence that the prosecutor is going to be able to marshal against the accused at trial. In fact, a skilled defense lawyer will recognize that "the trial starts today," and use the hearing to undermine the testimony of the prosecutor's witnesses for later use at the trial. Unfortunately, the rules of evidence do not apply at the hearings and the courts have been known to permit the prosecutor to introduce hearsay evidence.
Factors Judge Considers
According to 58A, a judge is to consider the following factors in deciding whether to grant the prosecutor's motion to detain the accused:
- the danger, if any, posed by the accused to a person or the community at large;
- the allegations of violence, if any;
- the potential penalty following a conviction;
- the accused's history of mental illness, if any;
- the accused's reputation, particularly for violence;
- the risk, if any, that the accused will attempt to obstruct justice or intimidate witnesses;
- the accused's criminal record, if any;
- whether the allegations include "abuse" as defined by G.L. c. 209A; and,
- the accused's history, if any, of violating restraining orders.
Standard Applied: Clear & Convincing
To detain the accused, the court must find by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community. Clear and convincing evidence is a less stringent standard than "beyond a reasonable doubt," which is very troubling. If the accused is going to being detained prior to be afforded his right to a jury trial, the standard of evidence should exceed "beyond a reasonable doubt." If the accused is as dangerous as prosecutors like to insist, they should be able to demonstrate conclusively the substantial risk of releasing the accused back into the community.
Judge's Options After Hearing
Following the hearing, the judge can:
- release the accused on personal recognizance (bail may be a separate issue);
- release the accused, but place specific conditions of release on him;
- order the accused detained for 90 days
As conditions of release, the judge may impose any number of the restrictions on the accused's liberty. These may include:
- restrict the accused's drug/alcohol use;
- require the accused to attend school or seek/maintain employment;
- restrict the accused's travel or associations with other individuals;
- order the accused to "stay away" from the alleged victim or a place (including his home); and,
- order the accused to surrender any firearms or other weapons.
Accused Can Appeal to Superior Court
The accused may appeal an order of detention or conditions of release to the Superior Court.
Accused Can be Detained for 180 Days
Because most citizens accused of a crime, even a very serious crime, are arraigned in District Court, it is the District Court judge who will usually rule on the prosecutor's motion to detain the accused. For those citizens being accused of crimes beyond the jurisdiction of the District Court, pre-trial detention can amount to six months of pre-trial incarceration. The District Attorney's Office will, usually toward the very end of the 90 days of detention, present its case before the grand jury for indictment. If the prosecutor secures the indictment, he will have the accused re-arraigned in Superior Court, where he will move the Superior Court to detain the accused for an additional 90 days! (The prosecutor will nolle pros (drop) the charges in District Court).
Alleged Violations of Conditions
If an accused is released on conditions and is accused of violating those conditions, the court will hold a hearing to determine if the accused, in fact, violated the conditions. If the judge finds that the accused violated a condition or conditions of release, he can order the accused detained for up to 90 days.
The District Attorneys Office
A husband and wife, or boyfriend and girlfriend, who reconcile after such an argument or fight often want the District Attorney’s Office to drop the charges. Unfortunately for many couples, the District Attorney’s Offices will not drop the charges at the wife or girlfriend’s request. Instead, an Assistant District Attorney -- usually fresh out of law school and wet behind the ears -- will be assigned the case.
The District Attorney’s Office will also assign a Victim Witness Advocate to contact the wife or girlfriend. If the wife informs the VWA that she wants the District Attorney's Office to drop the charges, it is the VWA's job to rescue the wife and/or "get her on board." The VWA, who knows little to nothing about the couple beyond the accusations, will likely attempt to persuade the wife or girlfriend that the male is a violent batterer from whom she needs protection. Rather than simply allow the couple to tackle their own problems, the District Attorney’s Office sets out to rescue the wife -- she can expect numerous telephone calls and correspondence from the District Attorney's Office and this VWA. Despite passionate pleas from the wife to drop the case, the Assistant District Attorney will not relent -- no matter how much stress it puts on the marriage or the family, particularly the family finances.
The Trial
Should a wife or girlfriend refuse to cooperate with the District Attorney’s efforts to prosecute the husband or boyfriend, the Assistant District Attorney will almost always take the case to trial, relying on the testimony of the responding police officers to secure the conviction. Although the wife’s or girlfriend’s statements to the police on the night in question are hearsay, most Courts will allow the statements into evidence under the “excited utterance” exception to the hearsay rule. The trial becomes an absurdity -- pursued only to satisfy a ridiculous office policy or the Assistant District Attorney's ego.
The Verdict
Amazingly, despite the fact that the prosecutor often proceeds without the benefit of the alleged victim’s testimony or cooperation, prosecutors routinely win these cases. A prosecutor's victory can be a calamity for the family: the husband now has a criminal record and may be sentenced to the House of Correction or to a lengthy (and expensive) period of probation; the couple have lost time from their jobs; the children have endured the trauma of watching their father put on trial; and, the family has incurred legal bills. In many cases, if not most cases, the old cop on the beat could have managed the dispute with a little commonsense and, most importantly, without making a minor incident into a potentially family crippling event.
Winning the Trial for the Accused
To insure his victory, a defense lawyer must be prepared to file a well researched motion in limine asking the trial judge to rule, pre-trial, that the alleged victim’s statements do not qualify as "excited utterances." If the judge denies the motion, which he often does, the defense lawyer must be fully prepared to win the trial. But just when the fortitude of the lawyer is most needed, it is then that he will likely recommend to his client that he plead guilty.
These cases can be won – and should be won. That the prosecutors are able to persuade juries comprised of good and solid citizens of the guilt of the accused without the supporting testimony of the alleged victim speaks poorly of the quality of representation afforded the accused. A prepared and skilled defense lawyer can be counted on to protect the accused against such an unjust verdict.
