This Blog and others like it have demonstrated in our discussions over the years the various avenues for potential abuse of the system, and how 209A Restraining Orders obtained upon false or unsupported allegations have been misused to create substantial problems for Defendants — everything from losing their homes, their belongings, their children, to being incarcerated.

The new law, closing the so-called loophole, EXPANDS the reach of restraining orders in Massachusetts substantially.  First and foremost, the relationship limitation is lifted.  Under the new law, it does not matter how the parties are related or even that they know each other.  It will now be possible to get a restraining order against a neighbor, store clerk, taxi driver, mailman, you name it.  Second, the new orders greatly expand the actions upon which the order may be granted.  As if “fear of imminent serious physical harm” under the old law wasn’t vague enough, the new law allows anyone who “suffers from harassment” to obtain the restraining orders.

In turn, harassment is defined as “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”  The definition of abuse in essence carries over from the old law: actual physical harm, attempted physical harm, or placing someone in fear of imminent serious physical harm.  As evident, in addition to acts of actual abuse, ANY three instances of ANY conduct that cause fear or intimidation will now meet the standard of the new law.  Unwanted sex acts, sex crimes, and acts of stalking are specifically listed as automatically qualifying acts requiring only a single instance.

The new law, which will be called Chapter 258E, is not meant to replace Chapter 209A.  It is meant to offer a separate and additional avenue of protection (or attack, depending on which side you are on).  The procedure of the 258E Orders is written to mimic the 209A procedure almost exactly: there are still the two stages of the hearing with a notice to the Defendant in the interim, the order has various degrees of intensity (no abuse, no contact, stay away, etc), the first extension of the order cannot exceed one year, but later a permanent order may be entered, the criminal punishment for a violation of the new orders is exactly the same as for a violation of a 209A order — up to 2.5 years in jail and/or a $5,000 fine, and the new orders will still end up in the State Domestic Violence Registry with ongoing uncertainty about exactly who is allowed to look at it.  It does not appear, however, that surrender of firearms to the police can be ordered under the new law.

The 258E Orders (I don’t actually know if that’s how they will come to be known) are civil proceedings, however violations of the orders are serious crimes.  This is a huge step up from the previous “equitable restraining orders” offered in the Superior Court, which, until now, were the only remedy available against a non-relative or against someone who is not a dating partner.  Those equitable orders were difficult to obtain, hard to navigate without attorneys, little or no assistance was available, and a violation of those orders merely resulted in a civil contempt of court, which rarely if ever meant jail time.

That was then.  258E is now.

As the new law takes effect and courts are able to flush out and streamline the procedures associated with issuing and litigating these orders, I will be able to offer a better front-line perspective that is more than mere theory.  Unfortunately, some day in the near future in some court in this Commonwealth someone will learn the hard way that even three text messages saying “boo” might just be enough to land someone in jail under the new law.  Now, we wait.

As the episode goes, one of the several interweaving plot lines was that of an alleged domestic assault and battery by a husband upon his wife. The allegation was that the husband threw a mug at her; a neighbor heard the commotion and called the police. We come to find out that the couple are artists and that this mug-throwing is accepted by both as a form of expression that is not only normal, but even necessary for their art.

At arraignment, the judge orders the husband not to return to the marital apartment and to have no contact with the wife at least during the pendency of the case. The wife is present in the audience during the hearing, and when she tries to speak up in her husband’s defense, the judge tells her to be quiet.

Just a few minutes after the conclusion of the hearing we find the husband and wife chatting it up in the hallway of the courthouse happy to be reunited after the husband’s overnight arrest. The husband’s defense attorney runs over, separates the two, and sternly warns her client that should the prosecutor learn of their contact, more trouble would be on the way. She advises him to stay at a men’s shelter, which he says might as well be prison.

The wife makes a good faith attempt to speak to the prosecuting attorney in an effort to persuade him to drop the case. In turn, he lectures her about battered women and asks for her cooperation before handing to her the complaint for her signature. In the wife’s words to the prosecutor, “Screw cooperation and screw your complaint!” She walks out without signing it.

The next morning we find the husband arrested again, this time for punching a police officer. It turns out that someone, likely the prosecutor, suspected that the husband might return to the apartment, thus violating the restraining order imposed by the court, so the police are sent to the apartment to check up on who might be there. When the husband is discovered at home, a struggle ensues, and the husband is arrested not only for a violation of the restraining order, but also for assaulting a cop.

The husband is held on a $10,000 bail which neither he nor his family are able to post. He tries to have a frank conversation with his attorney, but she must break the bad news to him that he is likely looking at a 4 year sentence for assaulting the cop, and that the restraining order would remain in effect the entire time, meaning his wife would not even be able to visit him in jail. To add massive insult to an already painful injury, the restraining order would remain in effect for three additional years after his release from jail. In short, the reality is that he would be unable to be with his wife for seven years… his wife, who begged the police not to arrest him both times, and who begged the prosecutor to drop the case — which he flatly refused to do.

We learn that the husband hanged himself in the jail cell the very next day.

The episode ends with a heated exchange between the prosecutor and the defense attorney about the destroyed lives and tragedies that arise out of the state imposing blanket rules on couples that never asked for help; rules that are heftily and swiftly punishable when violated, and all according to the prosecutor’s own version of “justice.” “All I care about is the odds,” said the prosecutor, implying that while in this particular case the husband might not have been abusive per se, in the vast majority of other similar assault cases the woman would have been better off with the court’s protection. In other words, the prosecutor thought he did the right thing.

Sadly the story is not at all unrealistic, and while the New York version of these domestic restraining order laws has its differences from our own 209A Orders here in Massachusetts, the destruction wreaked by them is very real, just as damaging and just as permanent as the seemingly fictional story portrayed on the show — a story that pull at the heart strings of all too many in Massachusetts whose lives took tragic turns for the worse thanks to the “help” of the prosecutors who in their blind and naive ignorance seem to think that they know better.

But what of that remorseful Plaintiff, or the couple that reconciled on Valentine’s Day, or that girlfriend who within a week realized that her boyfriend wasn’t really cheating and all those cell phone calls he was making in fact were to his mother?? Well, these Plaintiffs are encouraged to take a trip to the Clerk’s Office of the Court where the 209A order was granted, ask to go before a judge, and ask the judge to vacate (meaning: cancel) or at least modify the 209A Order. Strictly formally speaking, this kind of a request should be done via a written motion that is supported by an affidavit, but because of the relaxed procedural rules of 209A proceedings, many courts will allow a sympathetic Plaintiff to go before a judge without these formalities. Sometimes the Clerk will instruct the Plaintiff to write up a paragraph on a pre-printed form stating the reasons why s/he wants the order vacated, though the Clerk is only allowed to explain procedure as opposed to providing legal advice.

If the Plaintiff got this far, only two more barriers remain before the order can be modified or dismissed. The first will surely appear in the form of a Victim Witness Advocate (VWA). These folks are state employees who are usually not licensed to practice law, and they are available on hand at most courthouses. Their at least theoretical purpose is evident from the title: they are supposed to help victims and witnesses of crimes. In practice, however, these VWA’s instead of taking the victim’s side will at times take the side of the 209A Order itself, meaning they will advocate for the issuance and extension of the order whether the Plaintiff wants it or not. VWA’s, like Clerks, are not supposed to give legal advice and they are not supposed to play lawyer and try to represent the Plaintiff before a judge — that in itself would be a violation of a totally different set of laws. During the hearing, they are literally supposed to stand next to the Plaintiff and no more. However many times their services end up taking the form of poorly formed or outright wrong legal advice which leave Plaintiffs with an incorrect understanding of the procedures and the law, or needlessly worried about some nonexistent consequence.

In our example, when the Plaintiff comes to court wanting to have the 209A order vacated, the Victim Witness Advocate may get in the way and, through various tactics that could rise to intimidation or even threats, would talk the Plaintiff into turning around and leaving the restraining order in place. If the Plaintiff gets through this barrier, the second barrier will be the judge. Here, just as at the beginning when the order was first being sought, the Plaintiff will generally get her way and the order will be vacated or modified accordingly after a short hearing. The judges will usually inquire whether anyone has threatened or forced the Plaintiff into making a request to vacate the order, but in the end they will most often do as the Plaintiff asks. There is one situation, however, where judges will generally not abide by the Plaintiffs’ wishes but instead will leave the restraining orders in place unchanged. This situation is where there is an open criminal case against the Defendant, and especially so where the open criminal matter concerns the restraining order in some way: either an accusation of a violation of the order, a charge of assault and battery against the Plaintiff, or any other alleged criminal conduct towards the same person or persons who are involved in the restraining order case. Here a judge will either outright deny Plaintiff’s request to vacate the order, or advise the Plaintiff to return at some later date.

There is no law that prohibits the judge from vacating a restraining order during the pendency of a related criminal case, but judges tend to stick by this unwritten rule as a matter of practice. A reasonable approach for the Plaintiff in such a case would be to work with the Defendant’s criminal defense attorney who represents the Defendant in the open criminal matter, and to make that attorney aware of the parallel 209A issues. Some defense attorneys are hesitant to speak with 209A plaintiffs thinking that they are placing their client in violation — this is not the case. Defense attorneys are allowed, even obligated by their affirmative duty to fully investigate their clients’ criminal cases, to interview and speak to as many witnesses as possible, including the Plaintiff, if necessary. In certain cases it may be wise for the attorney to “put it on the record” and inform the court that the attorney intends to have contact with the Plaintiff in the 209A matter. All of these details are for the attorney to sort out. It is important to note, however, that the attorney is not allowed to serve as a conduit for communications in cases where the 209A order prohibits direct or indirect contact. In other words, the attorney may ask the Plaintiff what happened on a certain date and time or the attorney may provide certain information about the Defendant’s ongoing criminal matter, but the attorney may not say to the Plaintiff, “Joe Defendant told me to tell you that he’s sorry.” If the police are notified, that would almost certainly be prosecuted as a violation of the 209A prohibition against indirect contact if this prohibition is a part of the order. Simpler still, the Plaintiff may simply refuse to speak with the Defendant’s attorney. But for that remorseful Plaintiff, a speedy resolution of the Defendant’s criminal matters is the key to getting a hesitant judge to act to vacate a 209A restraining order.

For a more detailed overview of the relatively new law allowing expungement of 209A Orders, see Green Light to Expunge. In short, expungement may only be had in cases that where “fraud on the court” was perpetrated. This fraud must be proven by “clear and convincing” evidence, which is a rather high standard of proof, though not as high as “beyond a reasonable doubt.” The plaintiff coming forward a year later, saying “I made a mistake, I shouldn’t have gotten this restraining order” is not going to meet the expungement requirement. Nor will the plaintiff saying “my husband’s future career prospects are now at risk” be sufficient to expunge. This type of buyer’s remorse may be enough to get an existing order vacated, which is usually done in any event at the request of the plaintiff, but buyer’s remorse will not be enough to expunge.

What, then, is fraud? The legal definition used in Massachusetts courts is, “where a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense,” taken from a 1994 case of Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29. Well, Gesundheit! In a 209A case, let us take two extremes and allow the splendid variety of real life cases to fill in the rest. If the plaintiff accused the defendant of throwing the family cat at the plaintiff on December 5, 2004, but in fact many people can testify that the family never had a cat, on top of that the judge can observe that the defendant has no arms due to a birth defect, and on top of that there are plane tickets showing that the defendant was in Morocco on that date — here there is an excellent chance of establishing that the 209A order was obtained by fraud on the court. An extreme case, no doubt. On the other hand, the plaintiff merely failing to show up to the 10 day hearing will never in itself be sufficient to establish fraud.

But what of buyer’s remorse? If a plaintiff admits to lying in her affidavit or testimony, will that be sufficient to meet the fraud standard? While there has been no case law discussing this exact situation, it is more than likely that the plaintiff’s outright admission to having lied will suffice to establish fraud. (This is very different than the plaintiff saying that she merely exaggerated, and that the defendant did not punch her but merely pushed her — there is still physical abuse here!) Should every remorseful plaintiff run to court and admit that they may have lied? Consider the risk to the plaintiff. Affidavits in support of restraining orders are signed under oath. All testimony in 209A proceedings is taken under oath as well. Perjury, of course, is the act of lying under oath in a judicial proceeding, which in Massachusetts is a felony punishable by up to TWENTY YEARS in the state prison. Is every little lie made during the course of a restraining order hearing going to be prosecuted to the fullest extent, or even prosecuted at all? As a practical matter, no. But that risk, that exposure is out there, and must be carefully weighed.

On a slightly different note, on the bottom of the second page of a 209A order in the section that is checked when the order is vacated there is a statement to the effect that “all records of this orders will be destroyed by law enforcement agencies.” THIS IS NOT EXPUNGEMENT. This is merely something that police departments do internally to avoid falsely arresting someone for a violation of a 209A order that no longer exists. This does not apply to the Statewide Domestic Violence Registry, and does not affect CORI records or what appears on certain types of background checks. Sure enough, there forever lives a record of even a vacated 209A order unless it is expunged for fraud or until our legislature designs a better system.

In any civil proceeding, including a 209A hearing, the burden of proof lies on the plaintiff, and this burden is called “preponderance of the evidence.” In theory, this means that after taking into account all the evidence, the finder of fact, which in a 209A case is the judge, is left to believe that it is more likely than not that the plaintiff was “abused.” Sometimes this is also referred to as the “more than 50% standard.” (As a point of reference, consider the standard of proof in a criminal matter: “beyond a reasonable doubt” — a much tougher burden to meet.) Now, at the initial 209A ex-parte hearing there is only one set of facts for the judge to consider — the plaintiff’s. Here, a 10 day restraining order will almost always be granted, unless the plaintiff’s facts are so unbelievable and so out of this world, that the story cannot add up even if unchallenged. On the other hand, at the 10-day hearing, if the Defendant appears, objects to the extension of the order, and cross examines the plaintiff (through an attorney or without) or gives his/her own testimony, the judge would then be left with having to weigh two sides of a story, and this is where it becomes crucially important whether the plaintiff has met the burden of proof.

The reality is that few judges are strict enough to hold the plaintiff to the true “preponderance of the evidence” standard. The majority of judges work off a foggy case-by-case approach that rests almost entirely on hunches, one-sided conclusions, and some outright illegal assumptions. I have seen examples of the following in our courts:

* Judge will grant a 209A any time the Defendant owns firearms, even if 100% legal, and even without evidence that the guns have ever been used or threatened to be used
* Judge will grant a 209A on uncorroborated statements by the plaintiff alleging abuse that took place a year or more prior to the hearing
* Judge will grant a 209A restraining order on testimony that the plaintiff is afraid (afraid of what??) but without inquiring into whether the fear is rational, reasonable, or based on some concrete facts as opposed to general apprehension
* Judge will limit, or outright disallow, the cross examination of the plaintiff or the testimony of the defendant or defendant’s witnesses. How, then, can there be two balanced sides to the story? Good question.

In essence, the burden seems to fall on the defendant and the burden becomes a negative one: to disprove abuse or fear thereof. This burden is compounded by the limited legal options that the defendant has before and at the hearing. Unlike a usual civil proceeding, the defendant could not have subjected the plaintiff to a deposition-style interrogation ahead of time in order to prepare for the court hearing, and there is usually no time and no set procedure for obtaining documents or issuing subpoenas. Defendants are also often shocked to find out that their opportunity to present their story, their “day in court” that they were expecting at the 10-day hearing, usually becomes a rushed 5 minute showdown where the defendant is lucky to get the chance to fully and thoroughly address the court, let alone to cross examine or to call witnesses.

Faced with the task of having to prove a negative, let us revisit that defendant who wanted to call his roommate as a witness, because that roommate could “prove” that there has never been any abuse. That roommate may testify that he has lived with the defendant for the entire applicable time period, that there has always been peace in the home, and that this roommate has never seen the defendant raise his voice, let alone his hand, at anyone. But it is easily established on cross examination or by judge’s inquiry that the roommate was not at home 24/7, and was not with the defendant 24/7. The roommate likely stepped out to the bathroom for at least 5 minutes at some point! And this already leaves a window where potential abuse could have taken place. The rest of the roommate’s testimony to attempt to disprove abuse becomes almost irrelevant.

The above example is, of course, very black and white. It is entirely possible that the roommate’s testimony could be considered by the judge as evidence of other issues in the case, like motive, bias, past behaviour, etc. But it is rather clear that proving lack of abuse through eyewitness testimony is next to impossible. There was always that minute, hour, second, or evening when the witness was not there. And who knows what could have happened then… Or so thinks the court.

As for judges who misplace the burden of proof and incorrectly place it upon the defendants, essentially requiring them to prove a negative, these judges must be sternly but respectfully reminded of the law which dictates that the plaintiff carries the burden. And when that fails, there is always appeal, but that was a topic of another day’s discussion.

What does all of this have to do with 209A Restraining Orders? Simply this. Let us say the Plaintiff testified that there has been ongoing physical abuse. The testimony, the Plaintiff’s words, THAT IS EVIDENCE. There need not be bruises, police reports, or photographs. The Plaintiff’s mere story IS EVIDENCE. Now, naturally, some evidence could be more believable than other. In law this is called “indicia of reliability.” And, of course, the Defendant can present his/her own evidence to the contrary through the Defendant’s own testimony, through the testimony of witnesses, or perhaps with exhibits. The Judge, who acts as the finder of fact in a 209A case, will then weigh all the evidence, decide what degree of credibility to assign to what, and make his/her decision accordingly. The Judge’s assessment of credibility of the Plaintiff, the Defendant, and the witnesses usually comes from merely observing their demeanor and the manner in which they answer questions. Obviously if someone contradicted himself or got caught in a lie while testifying, it is a safe bet that their credibility with the judge is shot.

While in a Criminal matter certain types of evidence are not allowed (generally to protect the Defendant on various constitutional grounds), in a 209A Restraining Order matter the customary rules of evidence are not followed strictly; and the rules, if any, are generally very loose and up to the judge’s individual tastes. This, while making the Plaintiff’s testimony a bit less predictable, can at times help the Defendant, because certain kinds of evidence, for instance, hearsay, is actually allowed (with some limitations) in a 209A matter.

I have seen numerous Defendants who have attempted to represent themselves in 209A Restraining Order matters lose their cases abysmally by standing before a judge and proclaiming that “there is absolutely no evidence of abuse, please do not extend this order,” mistakenly assuming that absence of photographs or hospital records means that there is no evidence. And this could be after the Plaintiff just finished a 15-minute tirade about all the abuse that has allegedly taken place. Which way will the judge decide? The judge has heard actual evidence only from the Plaintiff. The Defendant’s arguments, while perhaps appropriate at some other point during the hearing, did not actually contain any new evidence for the judge to evaluate. These Defendants learned their lesson on evidence in a very raw way.

Attorney Mighell is truly a blogging pioneer with Inter-Alia nearing its fifth anniversary as of this writing. Tom is also the publisher of the well known Internet Legal Research Weekly newsletter that as of today is entering its seventh year of publication.

In addition to numerous contributions to the world of legal technology, Attorney Mighell is involved with the American Bar Association TECHSHOW, legal industry’s premier technology conference and expo. In 2008, Tom will be serving as TECHSHOW’s Chair.

For the sake of consistency, let us say that the alleged “victim” in a criminal domestic assault and battery case is named She. Let us also identify the remaining cast of characters and the powers that they hold. In a criminal matter, She is not a party to the case. The parties are the Commonwealth and the Defendant, thus the reason all criminal cases are entitled Commonwealth v. whoever. It is the Commonwealth aka the government aka the District Attorney’s Office aka the prosecution that pursues a criminal case against the Defendant. She is simply a witness whom the prosecution hopes to use to meet its goals.

When it is said that She is “pressing charges,” this could mean one of two things. Either she requested that the Commonwealth seek a criminal complaint against the Defendant (this is done via an Application for Criminal Complaint, which results in a Clerk’s Hearing), or, if the complaint had already issued because of an arrest or a police report, “pressing charges” may mean that She is cooperating with the prosecution, probably by agreeing to testify against the Defendant.

Only the Commonwealth can truly “press charges” by acting on and pursuing a criminal complaint. But only the Court can “drop the charges” by dismissing the case. The Commonwealth can ask the Court to dismiss the case, and the Court usually follows the Commonwealth’s request. All She can do is make the Commonwealth aware of her wishes and intentions with regards to the case. The Commonwealth may or may not abide by her wishes.

In a scenario most favorable for the Defendant, She will ask the Commonwealth and the Commonwealth will ask the Court and the Court will agree to dismiss the case. If the Commonwealth refuses to ask the Court to dismiss the case, She could make the Commonwealth aware that She does not wish to testify against the Defendant. Here, the Commonwealth can do several things. The Commonwealth can attempt to force her to come to court via a subpoena. A disregard for a subpoena could land her in more trouble than the Defendant. If She comes to court, but refuses to testify, the Court may find her in contempt, which could lead to fines or even jail time. There are at least two legal ways for her to get out of testifying. She could plead the 5th Amendment, but only if certain aspects of her testimony (such as lying to the police) could reasonably incriminate her. In addition, if She and the Defendant are married, She has the right to refuse to testify against the Defendant under the law of spousal privilege, codified in Massachusetts General Laws Chapter 233 Section 20(2).

There has been much ongoing academic debate about whether the spousal privilege applies where one spouse is the Defendant and the other is the alleged victim. Many prosecutors and even a few judges are confused by another similar provision of Massachusetts evidence law that concerns only conversations between spouses, and this portion of the law contains exceptions in cases of certain crimes, including domestic assault and battery. On the other hand, the section of the law described in the preceding paragraph, the one that gives the spouse a choice of whether or not to testify, applies only to criminal cases, and the few exceptions focus on cases of child abuse and incest. There is no exception for domestic assault on the spouse. This means that if the alleged victim and the Defendant are married at the time of the trial, the victim spouse has the right to refuse to testify and neither the prosecution nor the Court can force her to do so.

Clearly, without the testimony of the main witness, the Commonwealth doesn’t have much of a case. Police reports are not evidence, they are hearsay, and the police likely arrived on the scene too late to have witnessed anything. The Commonwealth can attempt to find other witnesses, perhaps neighbors or children (to whom the spousal privileges do not apply) and subpoena them to testify to what they saw or heard. From a practical perspective, these subpoenas are a lot more likely to be issued if the case is in Superior Court rather than in District.

Sometimes, and more frequently in Norfolk County, the Commonwealth may decide to pursue a case without the cooperation of the alleged victim. The prosecution may be able to introduce into evidence sworn testimony from a prior hearing, such as the dangerousness hearing in the same case, or a parallel 209A hearing. This is where the Defense Attorney would argue that the evidence should not be admitted, and there may be several legal bases for that argument. Two recent Supreme Court cases also allow usage of 911 tapes, but only if the call was made while the “emergency” was taking place, as well as statements made to the police in the heat of the moment. I will save the legal background of these Supreme Court cases and the discussion of the 6th Amendment Confrontation Clause for a later date.

Finally, if the Commonwealth is out of witnesses and there are no more legal rabbits to pull out of the prosecutor’s hat, the Commonwealth has no choice but to ask the judge to dismiss the case. There is simply no evidence to put before a jury, and in Massachusetts this is called “nolle prosequi,” which is Latin for “we shall no longer prosecute.” But the Commonwealth won’t give in quickly and will likely pressure the Defendant to accept a plea under the threat of an imminent trial. This is where the experience of the Defense Attorney comes in handy to help the Defendant decide whether or not to call the prosecutor’s bluff.

I witnessed this exchange take place not so long ago in the Boston Municipal Court:
Rookie Prosecutor: “Your Honor, I am going to dismiss this case.”
Judge: “You’ve promoted yourself to a judge?”
Rookie Prosecutor: “Pardon?”
Judge: “You’ve given yourself power to dismiss cases?”
Rookie Prosecutor: ….
Judge: “Are you asking ME to dismiss this case?”
Rookie Prosecutor: “Oh! Yes, Your Honor, I apologize. The Commonwealth would ask the Court to dismiss the case.”
Judge: “Case dismissed.” Smirk.

But let us not confuse a criminal case with a 209A Restraining Order case. Here, the case is deemed civil, She is the Plaintiff, a party to the case, and the Commonwealth is not involved. But, once again, only the Court can dismiss or modify a restraining order, and all She can do is ask the Court to do so. Up until two weeks ago I would have said that in every case where the Plaintiff asks for a 209A Order to be dismissed, the judge will do so after a few questions to make sure that the Plaintiff is no longer afraid of imminent serious physical harm from the Defendant and is not being pressured into making the request. Well, two weeks ago in Wrentham District Court, a judge flat out refused to vacate a 209A Restraining Order despite the Plaintiff’s convincing requests and promises that She was no longer afraid, that she overreacted, and that the 209A Order was not necessary to begin with. Let us hope that this incident was isolated and that it is the exception that makes the rule.

As evident from this discussion, “dropping the charges” is not as easy as it sounds, and it is not up to the alleged victim to do so. Calling the police or filing an application for a criminal complaint opens up a can of worms that can be very hard to close.

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.

For the sake of this discussion, assume that the Plaintiff took out a 209A Restraining Order against the Defendant, and the order does not allow the Defendant to have any contact with the Plaintiff and also requires the Defendant to stay away. It is legally impossible for the Plaintiff to violate a 209A order. The only person who can be in violation is the Defendant, despite the fact that the Plaintiff may have been the one to initiate contact. Further, the Plaintiff cannot decide to temporarily “suspend” the restraining order or “authorize contact just this one time.” Regardless of what the Plaintiff may say or do, only the court can modify the terms of the restraining order and if the Plaintiff truly wants to communicate, s/he should go to court and ask the judge to vacate the restraining order altogether, or at least modify it to allow contact. Until such action is taken by the judge, any contact by the Defendant, even at the request of the Plaintiff, is a violation of the restraining order which exposes the Defendant to arrest, being held without bail pre-trial, 2.5 years in jail if convicted, monetary fines up to $5,000, and other nasty consequences.

For the Defendant, the best thing to do if the Plaintiff calls is to say nothing and hang up immediately. Any conversation, even if it’s about the fact that the Plaintiff should not be calling, is technically a form of prohibited contact — violation of the order for which the Defendant can be arrested and prosecuted. If the Plaintiff e-mails or sends a text message, do not reply, no matter how temping it may be. If the Plaintiff shows up at the Defendant’s home, do not open the door. If the Plaintiff shows up at the Defendant’s work, try to avoid all contact and have someone else ask the Plaintiff to leave. If the Plaintiff shows up at a public place where the Defendant just happens to be, such as a restaurant, club, or park, the Defendant should leave immediately.

No matter how good the Plaintiff’s intentions are, or seem to be, any responses by the Defendant are violations of the restraining order, and therefore serious crimes under the law. Even if the Defendant merely remains on the phone and “lets the Plaintiff talk,” the Defendant is still committing a violation. Each phone call, e-mail, or text message to which the Defendant replies is considered to be a separate violation. If the Plaintiff continues to initiate contact or expose the Defendant to the risk of violating the order, it is at times advisable for the Defendant to notify the local police. It is always advisable for the Defendant to keep his/her own attorney apprised of these instances.

Short of obtaining a reciprocal restraining order, there are not many things the Defendant can do to “punish” the Plaintiff for initiating contact. But it is important to document the Plaintiff’s instances of initiating contact, because should there be an allegation of a violation and a future criminal proceeding against the Defendant, the fact that the Plaintiff initiated the contacts could possibly serve as a mitigating factor and lessen the strength of the prosecution’s case.

In short, 209A violations are a one way street that only the Defendant can cross.

How about not. In Massachusetts, a 209A domestic abuse restraining orders can be issued only when the alleged abuser is a “family or household member.” Interestingly enough, that short definition also includes those who “are or have been in a substantive dating or engagement relationship,” whether or not they are actual household members. What exactly is a substantive dating relationship was explored recently by the Court of Appeals in an unpublished opinion on the matter of Sullivan v. Watkins, 05-P-1552 (November 15, 2006).

The court set out some rather concrete factors for determining whether a relationship is, in fact, a substantial one. Whether the justices of the court apply this reasoning to their personal lives will for now remain a judicial secret. Meanwhile the factors are: 1) the length of time of the relationship; 2) the type of relationship; 3) the frequency of interaction between the parties, and 4) if the relationship has been terminated by either person, the length of time that elapsed since the termination. Further, judicial guidelines encourage judges to give the term “substantive dating relationship” a broad meaning in order to achieve the statute’s purpose.

As the story is told, Plaintiff Shawna Sullivan was seeking a 209A Restraining Order against one Paul Watkins. On the record, Sullivan stated that the two “went out here and there” and had “gone out to eat plenty of times.” Well, the meals must not have been particularly memorable, because Sullivan could not recall a single restaurant or occasion for their dates when asked. Apparently Sullivan’s allegations of fear of imminent physical harm did not include any evidence of Watkins ever having threatened her, neither physically nor verbally. Her affidavit in support of the ex-parte order was based solely on seeing Watkins’ truck driving by her house. According to the Court, “if anything, this record reveals a few casual dates.”

Bottom line: the 209A order was vacated by the Court of Appeals. What remains are two frightening thoughts. First, that Sullivan actually thought she could get a restraining order based on what pretty much amounted to nothing. Second, that Sullivan was right – she did get the order just as she sought. It was initially issued out of Malden District Court by, coincidentally, Judge Sullivan. (I presume that Plaintiff Shawna Sullivan and Judge Mark Sullivan are not related. If, by chance, they were, the judge should have immediately recused himself from the case.) The positive thought is that, once again, the recourse was a successful appeal, and kudos to Watkins for pursuing this matter all the way. Kudos also goes to the Court of Appeals: while their definition of substantive dating is a bit dry, they got this particular case just right.

What’s most surprising about this incident are the actions of the District Court judge. While other 209A matters at times rest on more subjective issues, like the judge’s finding of facts or placing credibility with one side’s testimony versus another, here the issue is one of clear black letter law and its application.

“Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.” MGL Ch 209A, Sec 3.

Seems rather straightforward. The case was an unpublished Massachusetts Court of Appeals matter, Docket No. 2005-P-1760 (October 23, 2006), Scholwin v. Scholwin.

Sad and unfair.  What to do?  Political and legislative pressures aside, the more immediate and effective way of handling the cases of 209A’s being granted without proper consideration of the facts and the law is this: APPEAL, APPEAL, APPEAL.  While the process is costly and lengthy for the client, and tedious and time consuming for the attorney, two good things come out of a successful appeal.  First, depending on the specifics of the case and the nature of the relief sought, the lower court judge’s decision may be reversed, remanded,  or the 209A order could be vacated altogether.  Second, the lower court judge gets a figurative slap on the wrist and another tally on his “reversed” scoreboard.

Judges don’t like to be reversed.  It sends a strong message to the judge, “Hey, Your Honor, you made a mistake!” The next time that judge hears a 209A case, s/he is bound to approach it more carefully. Being overturned once is unpleasant, but being overturned two, three, four times on the exact same issue could affect a judge’s reputation enough to make them think twice.

Clients are hesitant about appealing orders that only last one year. All things considered, the order will probably expire on its own by the time the Appeals Court decision is rendered. But a Defendant who loses in a 209A case must at least consider an appeal and discuss it with their attorney.  Allowing judges to hand out 209A orders based on theatrical tears alone with no repercussions only reinforces the already rampant  carte blanche in this area.  By keeping judges in check with well planned and well argued appeals, the era of free-for-all 209A’s may just near its final curtain.

For the sake of this discussion, let us assume the “best” case scenario: that no children are involved, that no actual violence or abuse ever took place, that the relationship was winding down in any event, and that the boyfriend was thinking of leaving on his own. A sore spot and the cause of his past immobility, i.e. the reason he has not left sooner, is literally immobility — of his furniture. Say he spent $10,000 of his money on a living room set, bedroom set, electronics, and the obligatory 45 inch flat panel LCD TV. As soon as that restraining order goes into effect and the boyfriend is woken up by the police at 6:00am, in his morning stupor he will be lucky if the police give him 5 minutes to gather his essentials and depart.

While I understand that virtually no one reads these materials in anticipation of a 209A being issued against them, I still feel obliged to share what I think the “5 Minute Essentials Grab List” ought to be:

1. Grab your cell phone WITH THE CHARGER!
2. Grab your day planner or PDA or wherever you keep phone numbers and important contact information
3. Grab your check book, ATM cards, Credit Cards
4. Grab your Passport, social security card, green card, whatever gives you the ability to work and travel
5. Grab your laptop, work briefcase, tool bag, uniform, suit, whatever you need to continue working
6. Grab your prescription medicine

I consider the above list to be essential for most people not to get stuck in desperate need of something inside the residence that they can no longer access. And setting up the police appointment to go and get more things, while may be allowed under the terms of the order, usually ends up being an exercise in futility: chances are the apartment has been rearranged and things won’t be found as easily, if at all. Still, most people worry about grabbing their toiletries and underwear. Come on. Those are the easiest and cheapest items to replace.

What about that furniture? Hold on. More importantly, our boyfriend from the above scenario should sever all financial ties with the girlfriend. A word of warning, in certain situations with children and spouses, financial support is a part of the restraining order, and severing certain financial ties may be a violation. In some instances the ousted spouse is ordered to continue making mortgage payments on the home where he can no longer live. I won’t address that injustice at the moment. In our case, severing financial ties may mean changing passwords and PIN numbers on bank accounts and credit cards to which the girlfriend may have access. If she is an authorized user or a co-signer on an account, her name should be removed. If she is a joint account holder the bank won’t remove her name or allow the account to be closed without her permission. That’s fine. At the least, the boyfriend should withdraw any money from the joint accounts that he feels is rightfully his, that he deposited, or that he earned.

While shutting off utilities to the residence is a violation of the order, it is important for the boyfriend to let the utility companies know that he is no longer responsible for those accounts. Some companies may offer to disconnect the power, phone, etc. This is dangerous territory! The actions must not be viewed as interfering with the residence.

Are we up to the furniture yet? No. In our case, the lease was joint, meaning both persons are responsible for the payment of rent. This responsibility is usually “joint and several,” which means that should the girlfriend fail to pay rent, the landlord can technically come after the boyfriend to collect it despite the fact that the boyfriend no longer lives there and, further, cannot live there because of the 209A Order. The way to handle the situation is to talk to the landlord. Some might be more understanding than others and agree to remove the boyfriend’s name from the lease without a penalty or a buy-out. Others will not cooperate, especially if the credit application was approved based largely on the boyfriend’s income. This situation is tough, and there are no black and white answers here.

It should be noted, however, that if the lease is in the boyfriend’s name alone, he can usually institute an eviction proceeding against the girlfriend, which, if successful, would allow him to have the 209A order modified to allow him to move back in after she is gone. Then, hopefully, the furniture is still there. Same for the TV. In theory, the 209A Order should not affect title or ownership of property, or impair other available legal remedies.

But if the lease is joint and the girlfriend is not leaving, the boyfriend may consider the following:

1. Get an attorney to speak to the girlfriend or to her attorney about reclaiming the furniture. A compromise of sorts may be achieved.
2. Be careful asking a friend to contact the girlfriend! This may be viewed as a prohibited contact under the Restraining Order, which would be a violation.
3. The boyfriend may have several civil causes of action available to him against the girlfriend to reclaim the furniture. This is an adversarial and lengthy process, especially if ownership is disputed.

Then comes the time to actually fill out the change of address card to get the boyfriend’s mail properly forwarded. And he should deal with that cell phone family plan.

Naturally, most 209A cases are not about furniture. Usually emotions run high, vengeance is in the air, and children may be involved. At times a 209A extension will be opposed and fought in court successfully. At other times the parties will reconcile and the girlfriend will ask the court to drop the order. Sometimes, however, a 209A could be an ironic blessing in disguise when it serves as a catalyst to a long overdue and much needed breakup. In those instances, furniture may just be the main concern. Well, good riddance.

In March of 2006 the Massachusetts Appeals Court ruled on a case that’s been dragging for four years, and the ruling shed light on an issue that’s been dragging on the minds of falsely accused 209A Defendants for much longer: does a District Court judge have the inherent power to expunge a 209A Restraining Order from the statewide domestic violence registry when the order was obtained through fraud on the Court. In short, perhaps surprising but much welcomed: YES. The case was Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006).

The case commenced when a couple (for reference, court designated pseudonyms of Jones and Adams will be used) obtained mutual 209A Restraining Orders against one another, which were later extended for one year. Sometime during this time period, after Jones was charged with violations of the 209A Order and criminal harassment in two different courts, Adams filed a motion to vacate the 209A Order against her and to expunge all records of the order. Here ensued the typical game of judicial ping pong. The judge granted the motion to vacate after finding 19 statements made by Jones to be false, but denied the motion to expunge. Adams filed a second motion to expunge the now vacated 209A Order, which the Commissioner of Probation (the office maintaining these records) opposed. The judge granted Adams’ motion to expunge, but the Commissioner filed a motion to reconsider. The judge denied the Commissioner’s motion, and the Commissioner appealed claiming that the judge had no authority to allow the expungement. The Commissioner argued that, while the Legislature specifically authorized and directed the development and implementation of a system containing records of all issuances and violations of 209A orders in Massachusetts, there was no provision for expungement of data because, according to the Commissioner, the purpose of the system was to preserve “complete information about a Defendant.”

The Commissioner was correct in that the 209A Law did not contain any provisions allowing for expungement of even incorrectly issued orders. While it is no surprise and no secret that the 209A statute is a poorly written and overly broad piece of legislation, short of the legislature specifically saying that no expungements are allowed, this vagueness left a hole and an opportunity for judges to make some good law on top of bad, for a change. This is exactly what the Appeals Court decided to do by returning to the lower court judges the power that was never expressly taken away by Chapter 209A, but which the judges were timid to exercise in 209A settings: the power to fix judicial errors and to attempt “to secure the full and effective administration of justice” when there has been a finding of fraud on the court. In such instances, said the Appeals Court quoting various earlier cases, “lack of statutory authorization is immaterial,” moreover, such power “cannot be restricted or abolished by the legislature.”

In this case, vacating the 209A Order against Adams is insufficient to protect the integrity of the courts and does not send an appropriate message to the public. Vacating the order leaves a record of the order in the system. Not only does this leave a permanent mark against Adams, but it also leaves, in perpetuity, a record of a fraudulently obtained court order. Although labels such as “dismissed” or “closed” are applied to records in the system, no explanation is provided as to why the order was dismissed or the case closed. Many vacated 209A orders are vacated because of the victim’s failure to prosecute. Law enforcement officials will not be notified that the order was vacated because it was obtained by fraud on the court. Rather, they may presume it was vacated because of the victim’s failure to prosecute or because of insufficient evidence. The perpetuation of a fraud amounts to a defiling of the court itself when law enforcement officials rely on inaccurate information produced by the court. Just as vacating the order is an insufficient remedy in those circumstances, sealing the record of the order is equally inadequate. When records are sealed, they do not disappear. While sealed records become unavailable to the public, the raw data continues to be available to law enforcement officials (police, probation officers, and courts). Law enforcement officials would retain access to information that is inaccurate and misleading and was obtained through fraud on the court. Therefore, sealing would not remedy the defiling of the court.

Id. at 731-732 (citations omitted).

Bravo? Can we run and request that all vacated 209A orders now be expunged? Not quite. First, the court made it clear that only orders procured through fraud on the court are subject to expungement. As an example of the type of orders NOT to be expunged the court cited the Vaccaro v. Vaccaro case, where a 209A order was vacated because there was not enough evidence to extend it, as opposed to an order initially obtained by fraud. 425 Mass 153 (1997). The court said that, in the case of a merely vacated order or a dismissal for failure to prosecute, but where there is no finding of fraud, there exists “value” to law enforcement officials in retaining records of its issuance.

Second, the court set out a rather stern definition of what it considers fraud, namely “where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Adams, at 729-730 (citations omitted).

Third, the court spoke of the timing for a motion to expunge, ruling that 209A defendants “have adequate opportunity to assert [the fraud] argument” at the 10 day and the extension hearings. “If the judge does not make a finding of fraud on the court, the defendant will have no basis for a subsequent motion to expunge the record of the order from the system. Nothing in G. L. c. 209A, or in this opinion, requires a hearing on a defendant’s motion for expungement. Furthermore, the ‘clear and convincing evidence’ standard of proof required for demonstrating a fraud on the court finding will necessarily limit the number of instances when expungement may even be considered as an appropriate remedy.” Id. at 736-737.

Far short of an open floodgate, the Adams case seems to offer an ever so slight crack in the door for expunging certain 209A orders when backed by strong evidence of fraud and brought at the precisely right time.

Less than six months after the Appeals Court decided Adams, much closer to the daily reality of 209A Orders, Judge Gregory Flynn in the Waltham District Court rendered a decision applying the new standards from Adams. The case was Chamberlain v. Khanlian, Waltham District Court Docket No. 0651-RO-99. Here the Plaintiff failed to appear at the 10 day hearing and the 209A Order against the Defendant expired on that day. Another 11 days after that, the Defendant brought a motion to expunge the record alleging fraud on behalf of the Plaintiff. The Defendant supported his motion with several affidavits that set out facts in support of the fraud. The Plaintiff failed to appear at the hearing on the motion to expunge, but the Commissioner of Probation appeared and opposed the expungement in this case as well, though this time claiming that its sole purpose in opposing the motion was to make sure that the standards set out in Adams are followed.

“In light of the allegations made in the relevant pleadings, the factual support presented by the accompanying affidavits, the failure of the petitioner to appear to be heard on the allegations of fraud, the court is clearly convinced that the original restraining order was granted only upon a fraudulent set of facts presented to the Court,” wrote Judge Flynn. “Accordingly, in conformity with the standards set forth in Commissioner of Probation v. Adams, the motion to expunge was allowed.”

This being an “unpublished” District Court case, no further light into Judge Flynn’s reasoning or rationale is shed from his brief decision. It is interesting to note, however, that seemingly the timing standards set in Adams by the Appeals Court were not met here. In Adams, the Appeals Court noted that the Defendant’s only opportunities to raise allegations of fraud would be at the 10 day hearing or any further extension hearings. Here the 10 day hearing came and went without a motion to expunge. Yet, Judge Flynn still allowed the expungement when the motion was brought 11 days later. It is also interesting to note that both defendants in the two cases discussed above were women, and both had career motivated reasons for seeking expungements: one was an attorney while the other was a licensed pharmacist.

Whether other judges will see Adams as Judge Flynn did, and whether dozens of the falsely accused men in Massachusetts will be able to obtain relief from this turn in the law — only time will tell.

“The history behind disenfranchisement in the United States was closely tied to racial motives and attempts to prevent newly freed slaves from taking part in the political process,” says Dmitry Lev, an attorney who has researched felon disenfranchisement. “Minorities still face a heavy disparate impact resulting from disenfranchisement laws, as statistically there is a greater number of minority felons.”

The article was written by Willian Dean Hinton and published in the August 24, 2006, edition.

The issue raised in the story, and one on which I expand here, is the inconsistency in the restrictions on convicted felons’ ability to vote among states. Any restriction on felon voting (”disenfranchisement”) is problematic because it is a state measure and its implementation and reach vary greatly among states. Thus, felons convicted of identical crimes in different states may have opposite outcomes on their ability to vote in the next election, whether federal or state. The opposite extremes are the states of Florida and Maine: in the former, convicted felons lose their ability to vote for life, while in the latter felons can vote while still imprisoned. Other states track everywhere in between.

Aside from having an obvious impact on the voting rights of minorities, disenfranchisement does not satisfy any of the four commonly recognized purposes behind punishing criminals: incapacity, rehabilitation, restitution, or deterrence. By analogy, certain felons are prohibited from buying guns because society perceives them as dangerous. Therefore, society imposes a narrow (and arguably not very effective) incapacity on that felon by restricting his right to freely purchase a gun. So too, by taking away a felon’s right to vote, society sends a message that the felon is dangerous to the political process and to democracy because he may have a say in electing politicians more inclined to support the felon’s causes. In other words, exercising the most fundamental right in a representative government structure becomes a threat if the causes turn unpopular.

It must also be noted that crimes come in two varieties: malum prohibitum and malum in se. The former is literally “wrong because prohibited” while the latter is “wrong in itself.” A large percentage of felons have been convicted of malum prohibitum crimes: various small drug offenses. These crimes are essentially victimless, do not infringe on the rights of others, do not cause pain, suffering, or death of those around. To classify these in the same category as felons who were convicted of malum in se crimes (murder, robbery, rape, kidnapping, etc) is clearly wrong, and to impose the same life long ban from the political process on both groups of felons is outright suspicious considering that malum prohibitum crimes are mostly political fruits. It is also interesting to note that malum prohibitum acts are generally criminalized by the political right, while the political left would be the clear winner if disenfranchisement laws were to be repealed.

There are two types of jurisdictional requirements that must be met in order for a court of law to have the authority to rule on matters: subject matter and personal jurisdiction. Subject matter simply means that a court has the authority to hear a particular kind of case. Personal, or in personam jurisdiction, means that a court has the authority to assert power over a specific person, usually the Defendant.

In Massachusetts, Chapter 209A Section 1 grants subject matter jurisdiction to hear 209A Restraining Order cases to Superior, District, Probate and Family, and Boston Municipal Court departments. In cases where there is only a dating relationship between the parties, Superior Court does not have jurisdiction. Thus, subject matter jurisdiction is usually not an issue in 209A Cases.

On the question of personal jurisdiction, the Court spoke in Lamarche v. Lussier, 65 Mass. App. Ct. 887, in April 2006, clarifying this issue. In this case, the Plaintiff was a native of Massachusetts while the Defendant was from New Hampshire. The couple had a 2 year dating relationship, during which the Plaintiff moved to New Hampshire to live with the Defendant. Shortly thereafter, the Defendant relocated to the State of Washington on a Navy assignment, and the Plaintiff followed. A child was born, and after a brief return to New Hampshire, the Plaintiff remained in Washington. After the relationship ended, the Plaintiff relocated to Massachusetts permanently.

Immediately upon the Plaintiff’s return to Massachusetts, she sought a 209A Restraining Order claiming various threats and fears based in part on the Defendants Navy connections. All of these alleged threats took place while both parties were in Washington.

Generally for personal jurisdiction to exist, the Defendant must have been served with the court papers, and have had sufficient contacts with the state so that the assertion of jurisdiction by the Court meets basic due process and fairness standards. There is no set minimum number or types of contacts that are required; the Court will analyze these issues on case by case basis.

The most obvious contact with a state is residence. When the Defendant resides in the state where the court sits, personal jurisdiction is likely established. The other strong but less obvious basis for jurisdiction is waiver. This is when the Defendant does not reside in the state, but comes to defend and litigate the case and does so to conclusion without raising lack of jurisdiction as an objection. The Defendant is deemed to have “waived” his lack of jurisdiction defense because by litigating the case he has voluntarily submitted to the jurisdiction of the Court. In the words of the Court, common factor in waiver of personal jurisdiction are “dilatoriness and participation in, or encouragement of, judicial proceedings.”

The Defendant can also make a “special appearance” solely for the purpose of disputing personal jurisdiction without waiving the defense.

When can a court assert jurisdiction over a nonresident Defendant?

There are two questions to be asked: is the assertion of jurisdiction authorized by statute, and, if so, is the exercise of jurisdiction consistent with due process requirements under the US Constitution? In Massachusetts, the statute that grants jurisdiction over nonresident Defendants is Mass. Gen. Laws Chapter 223A, Section 3. This is the so called “long arm” statute. It sets out eight factors for consideration in determining whether jurisdiction may be asserted:

• Transacting business in the state
• Contracting to supply services or things in the state
• Causing injury by act or omission in the state
• Causing injury outside the state while maintaining business or other persistent contacts within the state
• Interest in real property in the state
• Providing insurance within the state
• Maintaining domicile within the state while being a party to a relationship out of which there arises a divorce, custody, child support, alimony, or property settlement action. Note that a domicile is not the same as a residence. A person may have more than one residence, but only one domicile, which entails the “intent to remain indefinitely.”
• Having been subject in the past to jurisdiction in the state that resulted in alimony, custody, child support, or property settlement orders, if the current action involves modification of such orders.

It is the provision regarding causing injury in the state that is most often invoked in 209A Restraining Order cases. Further, it is the Plaintiff who bears the burden of proof on whether jurisdiction is validly asserted.

In the Lamarche v. Lussier case, the Court went through the eight factors listed above and held that none of the factors applied to the Defendant, and therefore personal jurisdiction should not have been asserted. In short, the Defendant did not reside in Massachusetts, nor conducted any business, nor delivered goods or services, nor owned any real property in the state. The alleged injuries to the Plaintiff occurred while the couple was living in another state.

While the Defendant’s actions may have caused Plaintiff’s injury in Massachusetts, the Defendant did not have the “persistent contacts” with Massachusetts as required by the statute.

Because the requirements of the statute were not met, the Court did not need to further analyze the second question of due process and whether Constitutional requirements were met so as not to offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (the landmark Supreme Court case setting forth the requirements for personal jurisdiction).

With that in mind, the 209A Restraining Orders issued against the Defendant were dismissed.

As to the question of whether 209A Restraining Orders can be issued against out of state Defendants, the answer comes down to an unsatisfactory and terse summary of everything discussed above, and a classic lawyerly answer:  IT DEPENDS.

2. DO NOT contact the person who took out the order in any manner whatsoever. This includes text messages, e-mails, sending flowers, or contact through third persons. It is tempting to ask “Why did you do it??” but this is a dangerous temptation.

3. DO read the order carefully to see which provisions are checked. Is there a “No Contact” provision? Is there a “Stay Away” provision? Note the addresses of the stay-away locations. Are there provisions regarding children?

4. DO note the date and location of the next scheduled hearing. This will be indicated on page 2 of the 209A Order. If you cannot read the writing, call the Clerk’s Office for the court listed at the top of the 209A Order.

5. DO contact family and friends to arrange for a place to stay at least until the next hearing date, which should be in about 10 days.

6. DO NOT return to the residence to retreive personal belongings if the order specifies your residence as a stay-away location. Doing so would be a violation of the order, which is a serious crime.

7. DO NOT disconnect utilities or telephone lines even if the rental lease or the house is in your name. Doing so may negatively impact your chances of getting the order dismissed later. If the other person has no legal claim to the residence from which you were ordered to stay away, you may be able to force them to leave via an eviction proceeding.

8. DO NOT go near the other person’s workplace, school, or any other place where they may be spending time even if it is a public place.

9. DO contact an attorney. The attorney can help you to retreive your belongings by communicating with the police on your behalf. The attorney will also advise you of your rights and what options may be available. If you and the other person work or go to school at the same place, the attorney will have the order modified to allow you access to these places without placing you in violation. The attorney will also advise you whether there is a good chance of getting the order dismissed (removed) and what procedures will be involved.

10. DO try to distract yourself and keep yourself occupied with other things. The next few weeks will be especially tough. It is important to surround yourself with supportive people, family, and friends so that the nightmare of the 209A order seems less daunting.

Most importantly, ABIDE BY THE ORDER. Doing so will give you the best chances of successfully presenting your case in court in order to get the order removed.

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.

Sounds great, in theory. In reality, the much needed tool became an all too easy to use weapon. Judges routinely ignore the narrow definition of abuse, as it is defined in the law:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress.

Moreover, the law provides that these orders can only be granted where there is a blood, marriage, dating, or co-habitation relationship. Ex spouses, ex fiancees, ex boyfriends/girlfriends are included as well. To set the nomenclature straight, and for the sake of this discussion: Plaintiff is the person asking the court for the order, Defendant is the person against whom the order is issued.

All too often, a vindictive ex spouse fabricates or greatly exaggerates a seemingly benign incident in an attempt to get a 209A order issued in their favor. A state employed Victim Witness Advocate is then appointed to essentially coach the “victim” on what to say in front of the judge. “Fear” appears to be the magic word, and even if “imminent serious physical harm” (note that those are actually four separate elements) is not obvious or not present at all, the orders are liberally granted nonetheless.

The order itself has SIXTEEN sub-parts, some are mandates and others are various prohibitions, and the judge can check the box next to the provisions that apply to a particular order. Discussing all sixteen parts is best left for another day. The most commonly used parts are:

* Not to abuse the Plaintiff by causing the three instances of abuse listed above.

* Not to contact the Plaintiff and stay away a certain distance from the Plaintiff. E-mail is contact. Sending flowers is contact. All are violations, and therefore criminal offenses.

* Leave and stay away from residence of Plaintiff. It does not matter that the Defendant lives there as well or that the Defendant has no other place to stay. It further does not matter if the Defendant owns the property or if the lease is in the Defendant’s name alone.

* Surrender all guns and licenses.

And of course, each order bears in large letters “VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE punishable by imprisonment or fine or both.”

In this lawyer’s opinion, judges must be constantly reminded of the requirements of the law, and that things like mere annoyance, excessive phone calls, emails, or unannounced visits are generally not adequate grounds for issuing a 209A order, as unpleasant as those actions may be. The “victim” may have a whole range of other criminal and civil recourse against the alleged offender, but 209A orders sought to patch up someone’s love life or to “calm things down” between ex lovers are nothing short of blatant abuse of the law.

The extent to which a 209A order can negatively impact and nearly ruin a person’s life, at least with the way the law is currently handled in Massachusetts, is enough to accept 209A as a true four letter word.

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.

Section 100C of the same Chapter provides for sealing of records in cases where charges have been dropped by the prosecution or dismissed by the court. The court will order the records sealed if “substantial justice will be served.” This does not appear to be an easy test to meet, as illustrated in Commonwealth v. Doe, 420 Mass. 142 (1995), where potential effects on employment prospects of an MBA graduate were insufficient reason to seal the records in a case where charges were dropped. “Substantial justice,” according to the Supreme Judicial Court, apparently means “the value of sealing to the defendant [must] clearly outweigh [] the Constitutionally-based value of the record remaining open to society.”

As background checks are becoming the norm of the day and affect everything from employment to dating, it is important to know the contents of one’s CORI record. Much like a credit report, the CORI record may contain (usually unpleasant) surprises or even mistakes. Citizens are able to view their CORI record for a fee of $25 that may be waived for those who cannot afford it. See the form and instructions for requesting one’s CORI record.

The CORI record should not be confused with the Massachusetts Warrant Management System (WMS) record, as WMS will also contain warrants issued before any charges were filed, including cases that may have never been prosecuted. The WMS record is only accessible to law enforcement and the courts.

In short, the second court may revoke the bail set by the first court and the defendant may be held in custody without bail for up to 60 days or until the first proceeding is resolved. The second court only has the power to revoke bail. It may not modify it or add conditions of release. To quote the law that gives the second court this power, a defendant who is arrested while on release pending the adjudication of a prior charge may be held for a period not to exceed sixty days upon a showing of probable cause for the new arrest and a finding, in the judge’s discretion, that “the release of said prisoner will seriously endanger any person or the community.” The governing law is Massachusetts General Laws Chapter 276, Section 58.

It is very important for the defendant to hold the government to the probable cause standard via a full probable cause hearing with witnesses, and not to allow the Commonwealth to proceed via proffer (ie relying on police reports alone).

In making the determination on bail revocation, the second court will consider the following factors:

• nature of the offenses
• conviction record
• whether threats of force or violence was involved
• whether there are pending appeals or sentences
• defendant’s mental condition
• potential for illegal drug distribution or present drug dependency

The potential for a second arrest while on bail is greatest in 209A Order cases where violations of the restraining order, intentional or not, are frequent occurrences and usually concern the same parties. Those served with a 209A Order while on bail in a pending Assault and Battery proceeding stemming from the same incident must be especially careful: the police are aware of the 209A Order and the “victim” is likely aware of how just about any allegation of a 209A violation could get the defendant arrested and held up to sixty days.

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.

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.

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.

Apparently the lower court judge in that case decided to extend the reach of a restraining order to include not only Michelle Hubbard (the victim), but also one Joseph Patuto — the victim’s friend. The judge, on her own accord, made the decision to extend the order to cover Patuto despite clear language in the text of the infamous 209A law. The law limits the reach of who can be slapped with a 209A order and includes only:

• spouses or ex-spouses,
• those who reside together,
• those who are or were related by blood or marriage,
• those who have a child in common even if they are not married or living together,
• and those who are or have been in a “substantive dating or engagement relationship.”

In this case, there was no question that Patuto was merely a friend of the victim and that he did not fall into any of these categories. Yet, the lower court judge ignored the law. Comes the Court of Appeals and says, “The [209A] statute is not a panacea for all social ills, nor a mean of circumventing other available judicial processes for resolving disputes.” The Court of Appeals went on to say that even though there may have been concerns about threats and bullying towards Patuto, the 209A law applied only to specific relationships and its reach cannot be extended by a judge’s whim.

Nicely done.

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.