Brown’s Case Dismissed Just Before Christmas Despite DA’s Comments

December 31, 2013
By

City Councillor Calvin Brown had domestic violence charges dismissed on the Friday before Christmas using a legal technique frowned upon by the Office of District Attorney Dan Conley.

On Friday, Dec. 20, Chelsea District Court Judge Dunbar Livingston dismissed the case due to the fact that the victim – and only witness, who was Brown’s wife – refused to testify.

Brown’s wife, in a filing with the court, asserted her marital privilege in not testifying against her husband. That left no testimony, and, virtually no case.

So, it was dismissed.

A call to Brown’s attorney, John Lee Diaz, was not returned.

The DA’s office said it was in the process of assigning Brown’s case to a prosecutor from outside the county – so as to remove any conflict of interest based on the fact that Brown is an elected official. However, the DA’s office said that while in the process of doing that, a member of the Chelsea Court staff objected to that disposition for the purpose of the record. So, it was handled in-house.

At the same time, Brown’s attorney filed what is known as a ‘accord and satisfaction,’ which many prosecutors and the DA’s office frowns upon allowing in domestic cases. An ‘accord and satisfaction’ is a legal technique used between two parties prior to a criminal hearing saying that both have been satisfied with a private agreement outside of court – thus allowing a judge to dismiss the charges.

“Generally speaking, we don’t believe an ‘accord and satisfaction’ is appropriate in cases of domestic violence because it can put undue pressure to accept that disposition on a victim who is financially or otherwise dependent on the offender: We objected to it in the 2006 case of baseball player Brett Myers, and we filed legislation earlier this year that would have prohibited judges from granting it in domestic violence cases such as this one. Unfortunately, the Legislature chose not to act on it,” said Jake Wark of the DA’s Office.

In 2006, the Commonwealth tried to challenge the Constitutionality of the procedure in domestic violence cases with the Supreme Judicial Court. However, the SJC did not agree with the Commonwealth and continued to allow it.

“We understand the Commonwealth’s concern that in cases like this one, where the assault and battery occurs in the context of domestic violence, that the abuser may be able to intimidate the partner or spouse into signing an accord and satisfaction,” read the 2006 decision written by Justice Roderick Ireland. “However, the seriousness of that concern does not affect whether the statute itself is Constitutional.”

Brown is expected to be sworn in to his new City Council term on Jan. 6.


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