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.

Boston’s Supreme Judicial Court Upholds Prosecuting Attorney’s Refusal To Prosecute Sex Crime

Here’s something you don’t see every day…a prosecuting attorney who has to go to Boston’s Supreme Judicial Court to back him up in not prosecuting someone!

Middlesex District Attorney Gerry Leone has refused to prosecute former state Senator James Marzilli for an alleged assault of an Arlington woman last April. Leone said he found there was not enough evidence to prosecute Marzilli for Massachusetts’ indecent assault and battery charges.

The complainant is not happy. She has been fighting Leone all the way to force him to prosecute.

The complainant alleges that Marzilli drove her to her Arlington home from a fund-raiser in April and, while standing in her kitchen, grabbed her breast and crotch. But Leone said in August that there wasn’t enough evidence to prove the woman’s case “beyond a reasonable doubt,” which is the standard in criminal cases.

The woman then filed a private criminal complaint, the normal process of which being having a clerk magistrate’s hearing to determine probable cause to issue a criminal complaint. Apparently, the clerk found probable cause and a complaint issued.

But Leone again decided not to prosecute and refused to have Marzilli arraigned.

Yesterday, the Supreme Judicial Court backed him up. It wrote:

“A private party’s rights with respect to the criminal complaint process are limited to the filing of an application and court action on that application. Once a private party alerts the court of the alleged criminal activity through the filing of an application and the court responds to that application, the private party’s rights have been satisfied.”

Don’t think Marzilli is spending too much time in celebration, though. He has other problems. For example, Middlesex prosecutors are still pressing charges against him in the case of four other women who were allegedly assaulted in Lowell. In fact, he resigned after Leone’s office charged him with sexually harassing the four women in one day in Lowell last June.

He has pleaded not guilty in that case.

“Every decision we have made has been about doing the right thing based on the facts and the law,” a spokesman for the district attorney, Corey Welford, said in a statement. “With today’s decision, the state’s highest court has ruled that we have done just that.”

Welford also noted that prosecutors had “taken the significant step of indicting Mr. Marzilli for accosting multiple women in Lowell and continue to move forward with our prosecution of Mr. Marzilli on behalf of the victims in that case.”

The complainant’s attorney said her client had sought an arraignment to ensure that the charges showed up on Marzilli’s record.

“We thought it was important as a matter of public safety,” she said.

Attorney Sam’s Take:

In previous installments of the daily Boston Criminal Lawyer Blog, I have outlined for you that criminal cases, unlike civil cases, are in the control of the prosecutor. A complainant, or victim, is not in control of the matter once the case lands in the hands of the Commonwealth.

People are often surprised that, once they call the police, and someone is arrested, they cannot simply “take it all back” and refuse to prosecute. In most cases, they can be, and are, forced to cooperate with the prosecution.

This case is the “flip side” of that situation. Simply because a complainant has reported he or she has been victimized, the prosecutor does not have to prosecute if the determination is made that there is no way the case would be proven beyond a reasonable doubt.

A prosecutor’s first duty is to “do justice”. It is rare, however, to find prosecutors refusing to pursue a prosecution, particularly in the instance of a sex crimes case. In most cases, and as the clerk magistrate apparently found in this case, the mere testimony of the complainant is enough. Often, whatever the belief on the part of the Commonwealth, the case is prosecuted because of the omni-present fear of “what if I release him and he goes out and kills somebody?”

Certainly, grabbing someone’s private parts without their consent is indecent assault and battery. People have been prosecuted on less. However, we do not have all the facts that Leone did and the good ex-senator is to be presumed innocent…even though he is currently being prosecuted for doing similar acts to four other women.

Once a person is arraigned, the charge is entered on their record and there it stays, regardless of the outcome. It can be sealed, but, almost never expunged. This explains the statement by the complainant’s attorney about wanting it to be on Marzilli’s record.

One last thing. If you find yourself being accused of a sex crime, or any other crime, do not rely on the hope that the prosecutor will refuse to prosecute. It does not happen very often. And, no, usually the fact that you are already being prosecuted for the same type of crime does not get you a “freebie”. It gets you harsher treatment.

Get an experienced attorney to represent you as soon as possible.

The full articles of this story can be found at http://www.boston.com/news/local/breaking_news/2009/02/by_globe_staff_43.html and http://www.boston.com/news/local/breaking_news/2009/02/by_globe_staff_43.html

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