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) 492 3000.

Massachusetts’ Domestic Violence Case Involves Weapon And Confession

Unfortunately, domestic violence of varying kinds are all too prevalent in today’s society. As a criminal defense lawyer in Boston, I have seen very disturbing situations. I have written many times in this daily blog about how easy it is to get arrested and how sometimes all it takes is to anger the wrong person. I have handled many times where allegations of domestic abuse and attempts to get restraining orders are, in my opinion, simply a matter of strategy to gain the upper hand in a relationship gone bad. However, domestic violence does indeed occur and does have to be handled seriously.

A rather interesting love story unfolded this past week. On Wednesday, Denise F., 36, of Dartmouth (hereinafter, the “Defendant”) was arraigned in New Bedford District Court on charges that included armed assault to murder, assault and battery, and assault and battery with a dangerous weapon.

According to police, the Defendant’s live-in boyfriend returned home late from his birthday party late Tuesday night. This, apparently, was not acceptable.

Shortly thereafter, the police arrived pursuant to a call to 911. They found the boyfriend bleeding from his abdomen, having been stabbed. Inside the apartment, police found a bloody knife on a kitchen counter, court records said. Near the knife was a note.

The note, allegedly written by the Defendant, was an apology. It read, “I’m truly sorry for doing this to you, but I don’t love you. I never did. OK.”

The boyfriend, it would appear, took the apology to heart. He refused to go to the hospital and refused to try to get a restraining order against the Defendant. Perhaps he felt somewhat responsible. After all, he had apparently been warned. He told the police that the Defendant had threatened that she would stab him if he was not home by 10 p.m. from his birthday celebration, court records said. Clearly, he had missed the deadline.

The police were not as forgiving as the wounded beau. They went to arrest her and, upon being questioned, she admitted that she “did something stupid” and stabbed her boyfriend. Scratching the surface even more, they found other layers of legal trouble. She claimed she had surprisingly recently lost custody of her children to the Department of Children and Families and attended counseling for anger management issues, according to police reports.

In court, prosecutors requested that the Defendant – whose criminal record consists of a dismissed assault charge – be held on $5,000 bail. The court, having more sense than the bleeding boyfriend, released her on condition she have no contact with the boyfriend and that she report to probation three times per week.

Samuel’s take:

Well, at least she said she was sorry. She is clearly doing well at those anger management classes.

Obviously, this is an extreme case…in many ways. However, the topics of restraining orders and domestic violence could take up more than a week of daily blogs. Let me point out a few things, though, to take you through the weekend.

The pendulum has swung in the opposite direction. Years ago, domestic violence was not taken seriously enough until victims ended up extremely hurt or dead. As a result, the criminal justice system has, as it often does, gone to the other extreme.

First of all, an assault upon a family member, or member of your household, is not simply an assault anymore. It is also domestic violence. It will, in most cases, be treated more seriously than a simple assault. While the case is pending, assuming you are not incarcerated, you will have to move out of the home and, of course, have no contact with the person you are alleged to have abused. Should that person not want to press charges (as seems to be the case with the boyfriend in today’s case), the police and then the prosecutor will likely press them anyway. Should the victim then want to stop the prosecution…that is usually near impossible except in rare circumstances.

Second, the domestic violence label will enhance any criminal, or even not necessarily criminal, act. For example, say a couple are arguing one night and somebody throws a plate. No, not at the other party, but at the floor or wall, breaking the plate. Somebody hearing the incident, or even one of the angry participants, may call the police. Upon arrival, in the old days, the police would most likely just calm everybody down and go their own way if they determined the situation not to be serious. Today, somebody is most likely is going to be a guest of the Commonwealth until arraignment. At least, somebody is leaving the house for the night.

There are reasons for this, of course. Some are good reasons and some are not so good. One of the reasons (you decide if it is good or bad) is the old rule of covering one’s law enforcement backside. “What if I let him/her go and somebody winds up dead tomorrow?”, the concern goes. Winding up on tomorrow’s paper as someone who “let the perp” get away who went out and killed someone is a prevalent concern in our system. After all, nobody gets criticized for being too tough on crime.

The subject of restraining order (or 209A) hearings could be a book of blogs in itself. The law looks at them as non-criminal proceedings. As such, many of the accused’s rights are thrown away. The hearings themselves vary, depending on the court, but the result is usually the same. The restraining order issues. Nope, it is not a criminal conviction. However, it goes on your record so that it will be considered strongly should you have a criminal justice problem in the future. Second, if there is an accusation that you contacted in any way a complainant in violation of the 209A Order, the result is criminal prosecution. Naturally, it would be wrong and extremely bad judgment to take such an action anyway, but this can include incidents like the complainant calling you and you speaking with her or him. Call them back? Await the Commonwealth bracelets of shame.

Once more, this blog can only scratch the surface on this subject; I have to get ready to go to court. However, take any allegations of domestic violence (true or not) extremely seriously. If you even suspect that someone is seeking a restraining order against you, get an experienced lawyer fast. You are likely going to need him.

One final note. I have handled many a case where the accused, upon receiving the summons for the 209A hearing asks the police officer, “Do I need a lawyer for this?” Usually, the answer given is “no”. True, there is no requirement that you have a lawyer with you as there is with a regular criminal case. However, by going alone, you are greatly increasing the chances that you will indeed end up needing one for your criminal case in the very near future.

Have a good and law-abiding weekend!

The full article of this story can be found at : http://www.southcoasttoday.com/apps/pbcs.dll/article?AID=/20081023/NEWS/810230332/-1/NEWS,

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