209A Restraining Order Defense Blog

1. DO calm down. This is more important than it sounds. Wait one hour before doing anything else.

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.

Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District Courts, including Boston Municipal Court. In addition, Attorney Lev assists individuals who had 209A Restraining Orders issued against them and wish to have these orders removed, as well as those accused of violating these orders.

209A is in fact a four letter word in Massachusetts, and this is so because of the nasty implications a 209A order has on the person against whom one is issued. For those unaware, 209A is the common name for the Massachusetts species of domestic restraining orders, and it refers to the number of the chapter of the Massachusetts General Laws entitled "Abuse Prevention" that governs issuance and outlines the proceedings and procedures for these orders. See the full text of the 209A law. The purpose of the law was to prevent the rising incidents of domestic violence and to give victims of domestic violence a much needed tool to protect themselves with the help of the court.

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.

Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District and Municipal Courts, including Boston Municipal Court. In addition, Attorney Lev counsels and defends persons accused 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.

It's not perfect, but lawyers say the state's new juror questionnaire is a big improvement

By David E. Frank, Massachusetts Lawyers Weekly

Lawyers have long complained that the state's jury selection process prevents them from making informed decisions on who gets picked to sit on trials.

But thanks to a series of recent changes to the juror questionnaire, those complaints may no longer be warranted.

Prompted by gaffes in the empanelment of at least two high-profile murder trials, court officials announced on July 5 that a new confidential juror questionnaire was being implemented for immediate use in all state trials.

Lawyers Weekly spoke to more than 10 judges and lawyers who used the new questionnaire last month, and all agreed it was a vast improvement over the old form.

Plymouth lawyer Terrence O'Neill, who recently tried a slip-and-fall case in Norfolk Superior Court, says the revised form provided him with new insight about the past history of potential jurors, which helped him decide "if a particular person fit the profile of the kind of juror I wanted."

Superior Court Judge Margaret R. Hinkle, who empanelled a jury two days after the form was introduced, says that her "initial reaction is that the vagueness that was inherent in the old questionnaire has now been eliminated."

In December 2004, Hinkle saw first-hand why changes were needed. During deliberations in a murder case, it was discovered that at least three jurors deciding the fate of a pair of men accused of killing a 10-year-old girl had criminal records that were not detected on the old form or disclosed during empanelment.

"The new form allows lawyers to harvest more information from potential jurors and is a good foundation upon which to be able to ask more follow-up questions," says Timothy J. Bradl of Boston. "With on-point specific questions that don't leave room for gray area, I think it's as good as you can do using a one-page form."

But criminal defense lawyers like Roger Witkin, who recently completed a Suffolk Superior Court murder trial, caution that the new form is still inadequate and that it lacks the degree of detail necessary to create any meaningful improvement in the selection of jurors.

"There's no question it's a much better form, but even at this level it's woefully insufficient. The very idea that you do it on one page is insane," Witkin argues.

Mishap prevention

The changes, which are the first to be made to the juror questionnaire form in 10 years, are aimed at preventing recent mishaps that have led to worst-case scenarios in which illegal aliens and convicted felons have been improperly seated on juries due to incomplete and inaccurate questionnaires.

With at least one of those cases declared a mistrial and another currently on appeal, jury management officials say one of the reasons jurors were failing to include relevant information about their backgrounds was because the forms were vague and non-specific.

"The issue of looking at the form came from learning that a number of jurors might have had some criminal experience that wasn't coming out on the form," confirms Jury Commissioner Pamela J. Wood, whose office joined the Jury Management Advisory Committee in overseeing the implementation of the new questionnaire.

Wood says that the most troubling example of that took place during the December 2004 murder trial in Judge Hinkle's session.

A week after the trial, Chief Justice for Administration and Management Robert A. Mulligan called for the re-wording of questions with regard to criminal history.

During the same period, Suffolk County District Attorney Daniel F. Conley implemented a policy in his office where prosecutors were required to file a motion at the beginning of every trial seeking permission to run the criminal histories of seated jurors in all Superior Court cases.

Fifteen months later, though, another juror mishap occurred when Superior Court Judge Patrick F. Brady learned that an illegal alien from Guatemala had sat as a juror in a case in which a 21-year-old man was found guilty of first-degree murder.

"That was actually the second time something like that happened to me," Brady recalls. "This new form would seem to reduce the possibility of that happening again. The section called 'Your Experience with the Law' is a lot more detailed and produces a lot more information."

'More probing'

Unlike the old questionnaire, which included a box that asked three open-ended questions, the new one-page form poses a series of specific "yes" or "no" inquiries.

"It's absolutely more probing," says Dorchester lawyer Michael P. Doolin, who used the new questionnaire in July to pick a jury for an OUI case in Hingham District Court. "I think that these types of pointed questions will reduce the possibility of learning something about a juror mid-trial that should have been picked up on the form."

One of the biggest changes lawyers say they have noticed on the form is that jurors are now required to provide a series of answers not just about themselves, but also about those close to them.

For example, jurors are now asked whether they or anyone in their household or family ever filed a lawsuit, were arrested or convicted of a crime, had been sued, been served with a court order or seated on a jury.

It also adds "domestic partner" to a household status section that asks jurors whether they are single, married, separated, divorced or widowed.

Aimed at preventing non-citizens from sitting on juries, the new form, unlike the old one, asks the estimated 350,000 people who show up for jury duty every year to provide their place of birth.

In capitalized bold print, the new questionnaire also advises jurors that, in order to serve, they must be a citizen, understand English and be 18 years of age or older.

However, Witkin notes that it does not require jurors to indicate under oath whether they actually meet that criteria.

"The new form asks where they are born, but it doesn't ask the critical question, which is whether they are a citizen of the United States of America," he says.

Daniel Solomon, who used the form to select a jury in a drug trafficking case during the second week of July, is skeptical about its usefulness.

While the questionnaire was more helpful in terms of obtaining specific information about potential jurors, he remarks that it made little substantive difference when it came down to exercising a peremptory challenge or asking that a juror be removed for cause.

"In my view, this is well meant and it's probably all they can do, but it's not any great revelation and certainly not going to lead to a blinding sea change in the amount of information you have," he says. "I'm not trying to trash it, but it's not going to make jurors all of a sudden unbiased, and it's not going to suddenly reveal things that would not otherwise be disclosed."

Step forward

Doolin, a long-time proponent of individual voire dire, says that the form prompted more responses from the jury pool in his trial and increased his confidence level in the jurors he picked.

Calling it a "positive development," Doolin says that since Massachusetts will never permit attorneys to conduct juror voire dire, "this is about as good as it's going to get. If you're going to use a written form, this is the way to do it because it gives jurors more room to answer questions as opposed to the old boxes, which were so general that half the time they weren't even filled out."

Hinkle and some of her colleagues on the bench share Doolin's sentiment that the new questionnaire is a step in the right direction.

"I spoke to judges [Elizabeth B.] Donovan and [Frank M.] Gaziano and all three of us believe it gives the parties more information with prior experience and clarifies portions of the old form that were found to be quite vague," she says.

While the form went into effect for both criminal and civil cases, Judge Brady -- who presided over three civil trials last month -- predicts that the questionnaires will have more impact on the criminal side.

"The information is going to help prosecutors and defense lawyers, but I don't think it makes much difference in a civil case," he says.

Brady points to a contract dispute case he tried during the week of July 24, in which one of the jurors indicated on the form that her sister had been imprisoned for a crime she committed five years ago in California.

"Does it really matter to someone on a civil case that someone's sister was arrested in California and convicted of vehicular homicide?" he asks. "It seems to me it doesn't."

Although the mishaps occurring during criminal trials prompted the changes, Wood says that the Office of the Jury Commissioner and the JMAC believed both sides of the bar were equally interested in getting more information about potential jurors.

"We received a lot of input from bar associations, private practitioners [and] legal service organizations, and quite a bit of it had to do with the civil side of things," she says. "Consideration for lawyers who try insurance and medical-malpractice cases, for example, was definitely a part of this."

H. Charles Hambelton of Burlington, an insurance defense litigator, agrees that any additional details attorneys have when picking a jury is key.

"You can never get enough information," he notes. "This is a real step forward from what you got in the past, so it definitely seems to me that this makes a difference in civil cases," he adds.

In his slip-and-fall trial, O'Neill says that the inquiry into whether the juror or a family member had ever filed a lawsuit or been sued proved particularly helpful.

"There was one juror who wrote that his wife had just been a party in a slip-and-fall case and had lost," he says. "We flagged him; he came to the sidebar and said that he'd be biased. I don't think that answer would have been picked up on the old form -- and a guy like that may have sat on the jury."

© Copyright 2006 Lawyers Weekly, Inc.

Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District and Municipal Courts, including Boston Municipal Court. In addition, Attorney Lev counsels and defends persons accused 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.

A man who spent 6 1/2 years in prison after a faulty fingerprint match led to his conviction for shooting a Boston police officer was awarded $3.2 million by the city, equaling what's believed to be the largest amount the city ever paid in a wrongful conviction case.

The award to Stephan Cowans, 35, of the city's Mattapan section, stemmed from the 1997 wounding of Sgt. Gregory Gallagher. Cowans was exonerated by DNA evidence through the New England Innocence Project and freed in January 2004.

In March, the city agreed to pay $3.2 million to settle a lawsuit brought by Neil Miller, who served 10 years in prison after being convicted of raping a 19-year-old Emerson College student. In 1989, DNA tests proved another man had committed the crime.

In May 1997, a man shot Gallagher twice with the officer's gun after a scuffle, then fled into a nearby home, where he briefly held a mother and her two children hostage. He drank from a glass of water before fleeing the house, leaving a fingerprint on the glass that police later mistakenly matched to Cowans.

In 1998, Cowans was convicted of armed assault with intent to murder, home invasion and related charges, and was sentenced to 35 to 50 years in prison. His mother died four months before he was freed from prison, and his request to attend her funeral was denied, according to a federal civil rights lawsuit filed by Cowans last year.

As part of the settlement, Cowans agreed to drop claims against the city, the Police Department and six police officers -- including Gallagher, who had identified Cowans as the shooter -- who were included in the lawsuit, Boston city attorney William Sinnott told The Boston Globe.

The police department's fingerprinting unit, which was blamed for Cowans' conviction, was shut down by then police Commissioner Kathleen O'Toole in 2004, and its work was turned over to the State Police. The department has since resumed control of the unit in a new, high-tech facility, run by a veteran fingerprint analyst.

© Copyright 2006 The New York Times Company


Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District and Municipal Courts, including Boston Municipal Court. In addition, Attorney Lev counsels and defends persons accused 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.

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.

Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District and Municipal Courts, including Boston Municipal Court. In addition, Attorney Lev counsels and defends persons accused 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.

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 from 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 gets the defendant arrested.

Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District and Municipal Courts, including Boston Municipal Court. In addition, Attorney Lev counsels and defends persons accused 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 Boston Globe:

Former inmates file lawsuit over prison cells without toilets. They say they had to use bags, cups, boxes instead.

By Shelley Murphy, Globe Staff August 5, 2006

Three former inmates filed a federal civil rights suit yesterday against Suffolk County Sheriff Andrea J. Cabral, alleging they were locked in cells without toilets and forced to urinate and defecate in bags, boxes, and cups.

"They're treated worse than kindergartners," said Boston lawyer Howard Friedman, who filed the suit in US District Court. "If you're in kindergarten, you can raise your hand to go to the bathroom." Friedman said about 350 prisoners housed in Building 4 of the Suffolk County House of Correction, where none of the cells have toilets, had to ring a buzzer while locked in their cells overnight if they wanted to go to the bathroom.

But buzzers were often broken, he said, or guards didn't respond for hours. The inmates who filed the suit and others suffered from medical problems such as high blood pressure, diabetes, and hepatitis C, requiring them to urinate or defecate frequently, the suit says.

Last fall, according to the suit, a guard shut off the control panel so he didn't hear the buzzer, then when he was awakened by a prisoner banging on his cell door, told him to "stop coming to jail if he wanted to go to the bathroom when he wanted."

The suit points out that the Massachusetts Supreme Judicial Court declared it unconstitutional 23 years ago to provide inmates slop buckets in cells rather than flush toilets. The court wrote: "However primitive and ordinary, the right to defecate and urinate without awaiting the permission of the government, and, while eating or at rest, the right to avoid the odor of one's earlier emitted feces and urine, are rights close to the core of the liberty guaranteed by the due
process clause of the Fourteenth Amendment."

The suit also says that the Massachusetts Department of Public Health has notified the Suffolk county sheriff each year since at least 2001 that the lack of access to toilets has failed to meet minimum health and sanitation standards. Cabral took over as sheriff in November 2002.

Efforts to reach Cabral's spokesman, Steve Tompkins, were unsuccessful yesterday. However, a lawyer for Massachusetts Correctional Legal Services, which provides civil legal services for inmates, said his office discussed the toilet problem with Cabral some months ago and her office "expressed a commitment to working with us to try to fix it." The lawyer, James Pingeon, said Cabral is awaiting bid proposals this month on a contract to install an automated system that will allow inmates to press a button and open their cell doors without waiting for a guard. He said the
system would have built-in safety precautions and has been used in other prisons.

But Friedman said he pressed his suit because the problem has gone on too long. "It's unsanitary and unsafe," he said. The suit names Cabral and Gerard Horgan, superintendent of the Suffolk
County House of Correction. It alleges they knew or should have known that the lack of access to toilets constituted cruel and unusual punishment in violation of the United States Constitution and the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts. The suit was filed on behalf of three former inmates, Nathan Tyler, Daniel O'Neil, and Carlos Marquez, who were released earlier this year. However, Friedman has asked the court for class certification to represent all inmates who were held in Building 4 after Aug. 3, 2003.

The suit says the building was designed to house inmates living in unlocked cells with 24-hour access to communal bathrooms. The suit seeks unspecified damages for the inmates, and Friedman wouldn't say how much he is seeking. Marquez, a diabetic, suffered damage to his kidneys and bladder, in part from being forced to hold his urine, the suit says. The three inmates, and other inmates, were frequently threatened with being sent to the hole, a disciplinary isolation cell, for complaining about lack of toilet access or banging on their cell doors when they weren't released to go to the bathroom after pressing the buzzer, the suit says.

© Copyright 2006, The New York Times Company

Dmitry Lev, an Attorney and Counselor at Law, handles Criminal Defense cases in Massachusetts District and Municipal Courts, including Boston Municipal Court. In addition, Attorney Lev counsels and defends persons accused 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.