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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: December 7, 2012

MASSACHUSETTS DOMESTIC ASSAULT AND MENTAL HEALTH CASES

In yesterday’s Attorney Sam’s Take, I mentioned that the typical law enforcement approach to cases which necessitate more care may be in the best interest of nobody.

I described a scenario involving assault with a dangerous weapon which was, to some extent, unavoidable given the ways such calls are answered.

There are other, less unavoidable, police habits which can make what would otherwise simply be a mockery of Justice into a more tragic and long lasting fiasco.

We have discussed the fact that law enforcement generally decides what the facts of a given case are before all the evidence is in. Further, we have described many incidents wherein the police simply assume that whoever called them first must be the “victim”. Law enforcement, both on the street and in the courtroom, seem to have suffered a collective hard blow to the head which knocked out the memory of life before they joined the side of the “angels”. In other words, the reality that many people fear, or simply do not trust, police officers.

In short, despite the reality that most of us experience, they do not believe that an innocent person might not run to their protection whenever something is wrong.

Terry Troubled has a mental health history. That history does not include violence toward others, but hurting herself. She is married to Carl Controller. Sometimes, Terry does not respond as Carl would prefer her to. While she is not being violent to anyone (including herself right now), she is not behaving properly again as far as Carl is concerned. Well, Carl knows how to get her "in line".

He picks up the telephone.

Carl calls the local police to explain that Terry is out of control and threatening to hurt him “again”. The officers believe that a person calling them for help must truly be the victim. Therefore, as they come to the house, they already “know” that they will be faced with a threat (Terry) and will have to rescue poor Carl.

The police arrive and the situation is somewhat calm. However, Carl is clearly upset and Terry is sitting somewhere crying. Carl meets the officers and explain that this is just a lull in the action and that they need to take Terry away to either a cell at the police station or lock her up for observation in a hospital.

Carl has done this a number of times in the past and, each time, it is the same result. Despite what Terry may tell the officers, she is not going to be believed. There is a track record here. There is no question but that Carl is being truthful.

Terry is going away. If she puts up a fuss, the officers will be violent. Likewise if she angers them…like any criminal defendant…she will be injured and may face additional criminal charges.

Nobody has any doubt about Carl’s credibility. He is simply the poor long-suffering husband. Even when the evaluation shows that she is not a threat weeks later…that will simply be interpreted as a response to Carl and the officers’ good work in keeping her safe.

Now, regardless of where the officers take Terry, let’s make a little change in the scenario. For example, what if the Carl/Terry relationship truly was one of domestic violence…only Carl was the one inflicting it on Terry.

In most cases, officers arriving at the scene of reported domestic violence simply assume that the man is the aggressor and worthy of the last name “defendant”. Luckily for Carl, though, he has figured out how to beat that angle. He has, long ago, when making his periodic calls to law enforcement, learned to include information that Terry has attacked him. Therefore, no matter what injuries are observed on either Terry or Carl…they will be perceived to be evidence of Terry’s vicious attacks upon her husband. She will end up in criminal court facing, at the least, criminal allegations of assault and battery.

“But, Sam, can’t Terry simply tell the officers that they have it wrong?”

Maybe. If this has happened many times before, she is not likely to waste her breath. If it is new, she can explain away…it will simply be taken as admissions on her part to be used against her at trial.

“You make the situation seem so dismal and out of control”.

Yes, I do. Many times, it is. However, do not get me wrong. This is not what happens each time police officers approach such a scene. It is, unfortunately, the norm, though and will remain so until we truly take redefine the term “investigation” for law enforcement and its political leaders.

The truth is that that in obvious situations, folks can be brought into court to be involuntarily committed for a time. And, for the most part, I believe that police officers want to do the right thing.

As we have discussed in the past, however, the “right thing” is subjective. With the situation like this, nuances are ignored in favor of good clear gut-pleasing responses.

Which make mincemeat out of any theory of Justice.

So…what does this have to do with you?

Well, if you or a loved one are ever in one of these situations, you are going to have to deal with the reality of it. As usual, my goal is to bring to you the fact that the law enforcement game (See my blog on this aspect from earlier this week) may not be as simple as you expect.

“What can I do about it?”

Aside from working to change the system, you should take your understanding of this reality as motivation to arm yourself when you find yourself facing such an instance. By “protection”, I do not mean guns, knives or other dangerous weapons. That would only make matters worse.

I mean only one tool that is available. The only one that has a chance of leading you through the nightmare with as little scars as possible.

An experienced criminal defense attorney.

In the meantime, though, have a great, safe and law-abiding weekend!