Do you have a criminal record?

Posted on August 11th, 2006, by Dmitry Lev

In Massachusetts criminal records are maintained by the Criminal History Systems Board and their term of art for the record itself is CORI — Criminal Offender Record Information. Unlike other states, where old convictions may be permanently expunged from records after a certain period of time, Massachusetts convictions remain on file permanently. The law provides for a process to seal the records of convictions if 10 years have gone by since a misdemeanor conviction or 15 years since a conviction for most felonies, and there are no other convictions of any kind and in any state during that time period. Traffic violations with fines of less than $50 do not count as convictions. Massachusetts General Laws Chapter 276 Section 100A is the applicable law.

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.

What if I get in trouble again while on bail?

Posted on August 10th, 2006, by Dmitry Lev

A common question asked by many clients. For the sake of simplicity, let us call the court of the first proceeding that initially set bail “The First Court” and the court where the subsequent arrest was arraigned “The Second Court.”

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.

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.

209A Power Play Reversed

Posted on June 29th, 2006, by Dmitry Lev

It is a rare delight to see the courts curtail the ever reaching power of the 209A Restraining Orders in Massachusetts. The Court of Appeals spoke on June 20, 2006, in the case of Mickela v. Fanaras.

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.