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.

ATTORNEY SAM’S TAKE ON THE BEGINNINGS OF DOMESTIC VIOLENCE CASES

Massachusetts domestic violence cases cases continue to perplex many of their participants. This Boston criminal lawyer has discussed these cases many times. The reality of such cases makes the messages are worth repeating.

Romance can be a wonderful thing…however, as it is written by one of my favorite rap artists, BDG, “Life brings love, but not without hating”.  What might be simple anger in other circumstances quickly turns into the feeling of hatred when things go bad.  Unfortunately, these days, one of the tools in expressing said hatred, no matter how temporary, is the criminal justice system.

This would be bad enough.  This would be shocking enough.  However, what makes it worse is that it is a tool that very quickly takes on a life of its own and becomes out of control for both the complainant and the soon-to-be defendant.

As we celebrate freedom this week, it is timely to discuss the realities of these types of cases.

First, let’s admit what we all know is true.  Many domestic violence cases are real.  In the past, these cases were not taken very seriously by the criminal justice system.  It was akin to child discipline…namely, it was treated like a “private matter”.  As a result, a lot of people, mainly women, got beaten worse and worse until they finally ended up dead. Murdered by their “loved one”.

Finally, we woke up and realized that there was nothing less serious about a spouse beating a spouse than any other violent crime.  In fact, given the repetative nature and other issues these cases brought to light (such as battered spouse syndrome and the effects on any children who might be around) became treated more seriously than other assault and battery cases.

This was a giant step in the right direction.

However, our Justice System, like many of our societal systems, is not satisfied with such steps until they go way over the dividing line of common sense.  We do not take measured approaches.  We prefer pendulum approaches.

Enter the present-day imaginary couple, Lilly and Lou Loud. The Louds have voices that are rather easy to hear. Especially when they argue. And, whether our present day prosecutors prefer to recognize it, all couples argue. Sometimes loudly.

Suppose Lilly and Lou are having one of their more boisterous quarrels one evening. No hitting, no touching. Just loud arguing. Perhaps a door was slammed. Assume further that they are legally married and they have never had the police called to intercede between them in the past.

However, as I said, the Louds lived up to their name this particular evening.

Neighbors have had it and tonight they call the police to report the yelling and, thanks to the sound of slamming doors, they also report that they heard “banging noises”.

What happens?

Well, the police will come. They will come because a potential domestic violence incident has been reported. They must come. But that is not all.

When they get there, the Louds are not quite as loud as they were, but they are still pretty upset with one another. The officers separate the couple and each questions one of the spouses.

You may be surprised to learn that, no matter when the Louds prefer, someone is not going to be sleeping at home tonight. That has already been decided. In fact, most likely, someone is going to be a guest of the Commonwealth tonight.

“But, Sam, you said that there was no physical violence. Don’t the Louds tell the officers that?”

Let’s assume for this particular example that they both do. However, a domestic violence incident has been reported. After all, the neighbors did hear the sound of a slamming door.

“But, Sam, is anyone pressing charges?”

Yes.

“Who? Lilly? Lou?”

Nope. The Commonwealth. After all, all these officers know is that a domestic violence case was called in. These two…who happen to be the only eyewitnesses…say that there was no voilence, but maybe they are lying. Maybe Lou is lying because he beat Lilly and Lilly is lying because, since we assume Lou has beat her before, Lilly may be suffering from Battered Spouse Syndrome.

“So what happens?”

Very likely, Lou will be sleeping either in a cell or somewhere else out of the house tonight. Standard procedure in these cases, as most officers will tell you, is that somebody is getting arrested. Sometimes, though, if all goes really smoothly, they can simply be displaced.

Let’s assume that this did not happen on a Friday or Saturday night and that the courts are open the next day. One of the Louds, most likely Lou, will be scheduled for Arraignment on his new domestic violence assault and battery criminal matter. At that time, the charge will go on his record.

“Wait, Sam! You have often told us about the right to Clerk Magistrate’s Hearing to determine whether there is really probable cause for the complaint to issue.”

Yes, that is correct. However, there are two reasons why Lou is not going to get a Clerk’s Hearing. There is no right to such a hearing if the defendant was actually arrested, first of all.

“But what if he was not arrested but was just ‘displaced’ and given a summons?”

Well, then another little exception to the rule will come into play. There is no right to a Clerk’s Hearing in domestic violence cases!

So the complaint stands.

“What Happens Next?”

Check in with me on Wednesday. That’s right…holiday and all!

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