From the frontlines… Mutual 209A’s dismissed

Posted on July 23rd, 2006, by Dmitry Lev

A Somerville District Court judge refused to dismiss a criminal charge of assault and battery even though the complaining witness stated on record that she would not cooperate and wanted the charges dropped. The judge’s refusal stemmed from the fact that mutual 209A restraining orders were outstanding, and both parties sought evidentiary hearings to extend their 209A’s and oppose the extension of the one against them.

There appeared to have been two options. One was to leave both 209A orders in place and await the resolution of the criminal matter before filing motions to modify or vacate the 209A’s. The other was for both parties to agree to drop their 209A’s, in which case the judge would dismiss the criminal charge.

The judge’s approach seemed a bit counterintuitive. The obvious favored resolution for the criminal defendant (dropping both 209A’s and dismissal of the criminal charge) left both parties unprotected from one another. The other option would have carried the risk of a guilty finding for the criminal defendant while still leaving uncertain the fate of the 209A orders: even if the judge allowed the evidentiary hearings to proceed, the outcome may not have been favorable.

The parties, via counsel, agreed to proceed with the first option: they agreed to drop their mutual 209A orders, and the judge dismissed the criminal charge against the defendant. The parties walked out of the courthouse with no further legal proceedings pending. Happy ending? That remains to be seen.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders.  Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.

So what if the glove fits?

Posted on July 6th, 2006, by Dmitry Lev

In the decade since the infamous OJ Simpson case, few have stopped to think what was it that Simpson won and what was it that he lost. It is safe to assume that everyone (at least everyone who cares) knows that Simpson was found “not guilty,” and thereby acquitted of murdering his ex-wife and her lover. But the rumors of a second trial, which Simpson lost, were true indeed: the Goldman family successfully pursued a wrongful death civil suit against Simpson, and secured an award of $8.5 million, compounded by an additional $25 million in punitive damages later awarded by the jury.

What is a wrongful death civil suit? First, what is NOT a wrongful death suit. In the United States legal matrix, two systems work side by side: the criminal and the civil systems. The former, and one most familiar to the public, addresses wrongs against society at large — even though a specific victim is usually involved, the prosecuted individual is asked to “pay his debt to society” if found guilty. This debt may involve monetary fines or sometimes financial restitution to the family of the victim, or the victim himself if the case is not a homicide. Most frequently, however, the debt to society is paid through various restrictions on freedom: supervised or unsupervised probation, suspended sentences, or incarceration in state or federal prisons. Criminal cases are brought by some governmental body, usually a state, sometimes the Federal Government, against the accused. This is the reason for case titles such as “People vs. Jones” or “State vs. Smith.” The victim of the crime is not the one instituting the charges or bringing forth the case, though the victim (if alive) is often the government’s most important witness. To be found guilty, the accused person may choose to voluntarily plead his guilt, or may be found guilty as a result of a trial by a judge or a jury of his peers. At the trial the accused Defendant may not be forced to testify — this is the Constitutional protection against self incrimination. For a guilty verdict to be returned, the government must prove every element of the alleged crime as defined in the law “beyond a reasonable doubt.” In the vast majority of states, the jury must be in unanimous agreement to return a verdict.

On the other hand, the civil side of justice is generally about one thing, and one thing only: money. Here, guilt and innocence are not the terms of art, rather the question is whether the defendant is liable or not liable for the act or its consequences. A civil case of this nature would usually be brought by someone “wronged” by the act — the victim, if alive, or the victim’s family. Prosecution is, therefore, replaced by the Plaintiff — the injured party — just as in an auto accident or a medical malpractice matter. The burden of proof in a civil case is much lower than in the criminal system. “Beyond a reasonable doubt” is replaced with “preponderance of the evidence,” which means that the jury believes the version of the alleged events happened “more likely than not.” In other words, the jury only needs to be 50.1% sure that the Plaintiff’s story is true to find the Defendant liable. Furthermore, in many states the verdict need not be unanimous: some states require a 5/6 agreement while others only look to a 3/4 consensus among the jurors. Moreover, the Defendant in a civil case could be called to testify and the right against self incrimination would not apply.

After liability has been established, juries calculate damages. Simply, how much money would it take to restore the Plaintiff and compensate him for the injuries caused by the Defendant’s alleged acts? Many factors are taken into account in computing compensatory damages. Some are more concrete: the lost wages of the victim, his life expectancy, his financial contribution to the survivors; while others are not as clear, like loss of consortium — literally, compensation for loneliness and lack of sexual relations in a relationship. If the Defendant’s conduct is especially egregious, juries may be asked to come up with a punitive damages figure — a dollar amount awarded to the Plaintiff designed to punish the Defendant’s wallet for his acts, unrelated to Plaintiff’s actual financial losses. The Defendant in a civil case cannot be incarcerated, and generally law enforcement and criminal justice authorities are not even involved. The life and purpose of a civil case of this nature is money.

So what exactly happened to OJ? He was found not guilty in People vs. Simpson, the criminal proceeding. On the other hand, he was found liable in the civil proceeding of Rufo vs. Simpson. (Sharon Rufo was the mother of slain Ron Goldman.) The jury answered YES to seven questions focusing on Simpson causing deaths of Brown and Goldman, and him doing so with malice. That jury awarded $8.5 million in compensatory damages to the families of the deceased. That award was later increased to $33.5 million by an additional $25 million in punitive damages.

How do the civil and criminal cases interrelate? Evidence of a criminal conviction can be used in a later civil case, but not vice versa. As evident with Simpson, a “not guilty” finding in a criminal case can be followed by a finding of liability in a civil suit.

Attorney Dmitry Lev assists persons accused of committing crimes in Massachusetts. In addition, Attorney Lev counsels and represents defendants in domestic abuse (209A Restraining Order) matters and violations of these orders.  Law Offices of D. Lev may be reached at (617) 556-9990 for a free consultation regarding a specific matter.