Boston Criminal Lawyer Blog

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

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

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

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

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

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

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When I was first approached by Massachusetts Lawyers Weekly to comment on the ruling in Commonwealth v. Dossantos, I did not understand why this case was considered noteworthy.

Upon further reflection, though,I realized that it could have been quite noteworthy.

You see, back in 2014, there were changes made to the Massachusetts domestic violence laws. A part of this was General laws chapter 276, section 56(a). This mandated that when a criminal defendant is arrested and charged with a crime against a person or property, the court must inquire of the prosecutor as to whether the Commonwealth alleges that the matter was a domestic violence incident. Should the prosecutor answer in the affirmative, the statute necessitates that the judge “make a written ruling” that the Commonwealth so alleges. In such an event, the defendant’s name is added to a domestic violence registry, “DVRS”.

Let me present that another way. The Charges are read. The judge asks the prosecutor whether it is alleged that the matter involves domestic violence. The prosecutor answers the question (as he or she is also required to do in writing). The issue addressed in this case involves exactly how the court is to react before it reacts…affirming what the prosecutor has just said both orally and in writing.

Now, let’s review what this statute is not. It is not a change in the crime charged, which, at the time this event happens, has already been decided. While this “hearing”,
must take place before bail is addressed, there is no indication that the answer to the question will affect the question of bail. Other than the act of adding the defendants name to the DVRS, there is nothing new for the judge to do upon making the finding in a case where, for example, the defendant is charged with striking his spouse over the Head with a baseball bat. Simply echo that the defendant is charged with a crime of domestic violence.

Well, kinda-sorta. Keep reading.

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