Perhaps because of our frustration with not solving actual criminal justice problems, we have convinced ourselves that the more we can define and characterize criminal behavior the more we are actually accomplishing something.


I have to admit that I think instead of accomplishing something, we are actually wasting time and deluding ourselves.


Long ago, we did not treat domestic violence cases seriously enough. Now, anyone associated with the criminal justice system can tell you that the pendulum has swung very far in the opposite direction.


An assault and battery case is, simply, an assault and battery case. The factors surrounding the alleged assault and battery come into consideration by a jury, prosecutor and judge. Certainly, a judge is going to treat a man convicted of beating his wife more seriously than a barroom brawl that simply got out of hand. Further, we would assume that the prosecutor would as well.


But that is not good enough now. Now, domestic violence matters get a great deal of public attention and the criminal justice system, which merely put into affect laws that are passed by our political legislators.   The primary concern that I have witnessed, now handling criminal cases in two states and from both sides for 20+ years is the overwhelming drive to avoid negative publicity.


Seeming proactive or “harsh” on crime gets one good publicity. Anything that would suggest the contrary gets bad publicity. It is really that simple.


And so we create for ourselves issues which our raised in  my recent interview with Massachusetts Lawyers Weekly. In practice, the machinations called for by the statute at issue are meaningless in terms of any attempt of smooth protection of the population or running of the criminal justice system.


In a matter in which the domestic background of a particular assault and battery case, a prosecutor is now to, both orally and in writing, indicate that the matter of the husband hitting the wife over the head with a hammer is being prosecuted as a domestic violence incident. One would have imagined that to be obvious. We go further, however, to necessitate the judge, upon hearing that a spouse struck another spouse with a blunt instrument is being prosecuted as a domestic violence incident, to repeat that the matter is being prosecuted as a domestic violence incident.


The absurdity is underscored when one sees that this case involved a criminal charge of assaulting a family member… definitionally a domestic violence matter.


Having now spent the time and effort and achieving statement of the obvious, nothing has changed in terms of the actual matter.


What has happened, of course, is that the defendant, still presumed innocent, is entered into a new registry which labels him as an abuser before, in any way, shape or form, he has been found guilty of being one. His name is immediately entered upon a list and will only be removed if he is either found to be not guilty or there is no finding of probable cause by the grand jury. Even the dismissal of all charges will not remove his name from that registry of abusers.


In other words, the system must, in about a year, prove the defendant not to be an abuser before the name can be removed. In the meantime, he will be presumed an abuser

…Albeit still presumed innocent of all charges.

This turns out to be of little to no concern to those involved in the system because it is not likely to garner any public outcry. It is merely a defendants rights that are being sacrificed and that is interpreted as furthering the cause of justice.


This opinion does not deal with any such Constitutional issues. Further, it does not address the issue of waste of time, effort and money involved.


Instead, it concerns itself with the dissection of terminology and finds that all is well because the judge must make an “independent” finding that the prosecutor does indeed allege domestic violence.


In other words, what has been accomplished through this appeal is that essentially if the prosecutors allegations involve anything involved in the wide latitude given to call a matter “domestic”, The court will perform its judicial responsibility of understanding English and Acknowledging that the prosecutor has indeed said what the prosecutor has already argued in telling the court what the case is about.


Of course, the prosecutor has had that obligation since time immemorial.


On the other hand, I suppose one might argue that we are now somehow safer because, in the event that a prosecutor should somehow label, for example, a drug deal on the streets of Boston as a “domestic violence incident”, the judge will catch the error.


It seems to be unclear what the judge might do in such an unlikely scenario. Perhaps simply say on the record that the prosecutor is wrong about it being a domestic violence matter.


How that might affect the drug charges is anybody’s guess.






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