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:

At Remy’s arraignment the day after he was arrested for assaulting and battering Ms. Martel (but before her murder,) a Middlesex County District Attorney prosecutor told the court that the Middlesex DA’s office was not seeking to hold Remy in custody. The judge released Remy, and the next day he allegedly murdered Ms. Martel by stabbing her to death the following day at their Waltham home. After the murder, the media descended on the new Middlesex District Attorney, Marian Ryan, who held a press conference and said that prosecutors in her office had had “conversations” with Martel and the Waltham Police Department prior to Remy’s arraignment, and that based on those conversations, they did not seek to hold Remy in custody under the Massachusetts dangerousness statute.

There’s a problem with this story: If prosecutors really did have a conversation with Ms. Martel and/or the Waltham Police, and that conversation(s) formed the basis of their decision not to oppose Remy’s release, then why didn’t the Assistant DA at Remy’s arraignment specifically say this to the judge? Because that Assistant DA said nothing of the kind. All that Assistant DA said was that Martel was not present in court, and that he didn’t know if she was coming later. Fox TV 25 – always a top-notch and reliable news outlet – has reported on this fact. (Click on the Fox 25 link to view story.)

As the controversy surrounding the prosecutor’s actions grew, Middlesex DA Ryan held a press conference and rejected any idea of an independent investigation into what had occurred. Later, as a chorus of protests grew, Ryan relented, appointing two veteran prosecutors, First Assistant Norfolk District Attorney Jean Marie Carroll, and Kevin Burke, a former Essex County District Attorney, to review the process that led to the Middlesex DA’s office recommendation that Remy be released without bail at his Aug. 14 arraignment.

As a Boston domestic violence lawyer, whose previous career was in managing public affairs on highly contested issues, a lot of this sounds like damage control to me. Something went wrong here. But, in all candor, 100% of the blame may not rest with the Middlesex DA’s office. The statute that could have prevented Remy’s release here was written to require that “clear and convincing” evidence be presented before a judge will hold such a defendant behind bars. Reaching that standard almost always requires that victims be willing to work with prosecutors to have the defendant held. That means the victim showing up in court and testifying to a judge about why he or she feels the defendant will harm the him, her or others.

In this case, Ms. Martel did neither: She didn’t appear the morning after Remy was arrested to request an extension of the temporary restraining order that was granted the night before, nor did she ask prosecutors to have Remy held in custody. Ms. Martel’s mother, Patricia Martel, has said that her daughter did not seek to renew the emergency restraining order at the request of Remy’s family. Ms. Martel’s mother has said that Remy’s mother had begged Ms. Martel not to proceed forward with the prosecution, saying that to do so would ruin her son’s life. So far, Remy’s family has not commented on Patricia Martel’s claims.

If victims aren’t willing to work with prosecutors and testify in support of holding a defendant in jail for up to 90 days, then it’s extremely unlikely that such prosecution motions will be granted. The reason? Judges are very reluctant to put someone behind bars, when the alleged victim won’t even show up to testify in support of it, and the evidentiary standard of “clear and convincing evidence” is a high threshold to satisfy. Without the victim’s cooperation, prosecutors often feel powerless in these situations, afraid of making a volatile situation even worse. As a result, they usually give broad deference to what a victim wants to do, relying on criminal justice studies that indicate that such victims can best measure their own safety.

But there are often good reasons why victims don’t ask that domestic violence defendants be held, or cooperate with prosecutors : They’re scared blue. They fear for their lives or safety, or the safety of those they love. Many are caught in a no-win situation: Don’t testify to have the defendant held in custody, or testify. If the victim does testify and they judge rules not to hold the defendant, they will very likely end up in even more danger. If they don’t cooperate with prosecutors and testify, the defendant will also be released. Even if they testify and the judge agrees to hold the defendant, the maximum the defendant can be held is 90 days. After that, the victim is going to be exposed to even more danger.

A cruel result of this system, many say, is that the more abusers terrorize their victims, the less likely those victims are to speak out against them. The result? The worst offenders are often the hardest to prosecute, because victims are so afraid to cooperate with prosecutors. So, you might ask, why don’t prosecutors just move ahead without the victim’s cooperation? Because not only will success be very unlikely without having the victim on board, but prosecutors who do act against the victim’s wishes also risk alienating those victims from the legal process, and this just intensifies the victim’s feelings of powerlessness. Victims can sometimes end up resenting the prosecutor more than the defendant (as ironic as that may seem.)

I’m a Westwood Massachusetts domestic violence defense lawyer. It’s my job to advocate for defendants. But that doesn’t stop me from seeing that clearly, the dangerousness statute needs amendment – or systemic reforms need to be put in place – to prevent another tragedy like Jennifer Martel’s murder from occurring again. If the Massachusetts Legislature puts its collective heads together (not that the sum total would necessarily equal much,) surely a better system can be constructed to protect Massachusetts domestic violence victims, and protect the legal rights of Massachusetts domestic violence defendants.

Let’s do the right thing here, in everyone’s best interests. Hotheads need not apply.

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