The Kickham Comment - Boston Criminal Attorney Blog

In my last post I wrote about the Jennifer Martel murder, and that something appeared to have gone wrong with Jared Remy being released from custody at his Massachusetts domestic violence charges arraignment, even though Remy had a long criminal record of assaulting women. Actually, Remy was both released without bail the night of the assault and again at his arraignment the next morning. There is a law in Massachusetts that would have allowed a judge to hold Remy behind bars for up to 90 days, following prosecutors’ motion for such a hearing. That law is commonly known among lawyers as the “Massachusetts Dangerousness Statute,” embodied in M.G.L. Chapter 276, Sec. 58A.

Dangerousness hearings are held to determine whether or not a defendant poses a threat to either a specific person (almost always the victim,) or to others in general. Under the law, a judge can hold a suspect for up to 90 days if he or she believes that no conditions of release “will reasonably assure the safety of any other person or the community.” According to court records, Remy was in fact held for 81 days in 2005, following charges that he punched, kicked, and dragged a former girlfriend.

But prosecutors didn’t move to have Remy held this time – with tragic consequences. Let’s take a closer look at this:

It’s happened again: A horrific murder accompanied by a celebrity/media angle. This time – Jared Remy, son of the broadcaster for the Boston Red Sox, Jerry Remy. Jared Remy, who has an arrest record involving violence against women, has been charged with stabbing to death his girlfriend, Jennifer Martel, 27, on Thursday August 15 2013 at the Waltham residence they both lived in.

Aside from the defendant’s-related-to-a-celebrity angle, the key reason that this case has generated so much media coverage revolves around the fact that Remy was released on bail after being arrested and arraigned on assault & battery charges against Ms. Martel, which are sub-elements of Massachusetts domestic violence charges. It was while Remy was on bail that he allegedly murdered Ms. Martel – by allegedly stabbing her to death. The controversy is hot because there is a Massachusetts statute that exists, which can hold domestic violence defendants in jail for up to 90 days if a judge feels that releasing the defendant on bail would pose a dangerous physical threat to the victim or others. That law, called the “Dangerousness statute,” was passed by the Massachusetts legislature in the 1990s, following the murders of several women by their male partners that had been released on bail in domestic abuse cases. The statute was intended to be a tough law that would prevent this type of tragedy.

But there’s a key requirement in the statute: The victim must be willing to help police and prosecutors make an effective, convincing argument to hold the defendant behind bars. If the victim is unwilling to do so, prosecutors rarely go forward with such a motion. The odds of persuading a judge to hold a domestic violence defendant in custody, without the cooperation or assistance of the alleged victim, is so low that DA’s offices very rarely bother trying when the victim is not willing to cooperate by testifying against the defendant. When a judge asks the prosecutor, “Is the alleged victim here to testify, or is she/he in favor of this motion?,” and the answer is “No” to either or both questions, a judge is going to be very hesitant to lock someone up.

Massachusetts domestic violence charges are one of those types of criminal offenses that can be very vague. When people first hear “domestic violence,” most immediately conjur up images of women being brutally beaten or abused by a spouse or boyfriend. While that can be tragically true, it’s not always necessarily so. “Domestic violence” is an amorphous term. Could you say right now what that term really means? The truth is, that while it can mean violent or harmful physical abuse – in which case it should be prosecuted – sometimes these charges reflect anything but a violent, abusive physical confrontation. Sometimes, the event that occurs is little more than an argument. Yet, people can very easily end up in court facing this kind of charge. As a Boston domestic violence lawyer, I see it all the time.

Why and how does this happen, if what occurred in a given situation really wasn’t violent or “abusive,” (as most reasonable people would interpret that term)? Two answers: 1) Hyper-caution, and 2) Liability issues. You see, in days gone by (the “bad old days,”) when a couple got in an argument and police were called, officers used their discretion in deciding whether or not to arrest someone accused at the scene of domestic violence or Massachusetts assault and battery charges. If police sensed that what occurred between the couple was very minor and did not present a safety issue for either person, they would typically de-escalate the situation, urge the couple to resolve their conflict, and, if they felt neither partner’s safety was threatened, they’d leave, file a report, and no one would be arrested.

Or, when an arrest was made, the case would be dealt with very lightly by prosecutors and judges. Then, some time later (perhaps months, perhaps a couple of years,) that same couple would have another fight, and one of them (usually the woman, but not always,) would end up being severely beaten or killed. For those of you unfamiliar with public relations, that results in front-page news and political outcry. Whose picture ends up on the front page and in news broadcasts? A) The judge who let the defendant off easily; B) The District Attorney who didn’t prosecute the case aggressively enough and C) The city or town Police Chief, whose officers didn’t make an arrest when called to the scene. Result? Big trouble, for a lot of people. Worse, on a financial level municipalities began being sued by victims of domestic violence, who claimed negligence on the part of the city or town police department, for not arresting the accused abuser.