iBerkshires.com Columnist SectionSue Bush
More articles from Sue Bush
Do-It-Yourself JusticeBy Susan Bush
12:00AM / Thursday, November 16, 2006
It may seem to most a clear-cut situation: an assault occurs, police are called, an injured person is taken to the hospital, witnesses are interviewed, and police file charges against the alleged perpetrators.
But apparently some situations aren't quite that simple.
In a significant number of situations, those who believe they were victims of a crime are filing the charges themselves and paying for it.
And police chiefs in several Northern Berkshire communities said that the scenario is not unusual.
"If an officer doesn't see an assault, we usually tell the people they have the right to file the charges," said Clarksburg police Chief Michael Williams. "It's kind of hard when it's 'he said, she said,' and a lot of the time people want police to file charges during the heat of the moment. Then when everything calms down, nobody goes to court and it all ends up dismissed."
The exception is cases of domestic violence, which are governed by specific domestic violence laws, Williams said.
Williams said that even when there are witnesses corroborating what one individual is reporting, police may decline to file charges.
"Each situation is different and has to be based on what is going on at the time," he said and explained that police are more likely to file charges when assaults are committed by strangers.
"If somebody you don't know just comes up and smacks you on the street, the police have to do an investigation, get witness descriptions, try to find out who the person is," he said.
Williamstown police Chief Kyle Johnson said that in situations involving people who are known to each other and are lacking independent witnesses, police are likely to advise people to file complaints on their own if they wish.
He agreed that "he said, she said" situations are difficult to prove and may result in court dismissals for a variety of reasons.
However, Johnson noted that the severity of a situation and the presence of independent witnesses can make a difference whether police file charges. Johnson noted the difference between an at-the-scene arrest, which is unlikely unless police witnessed an assault or other crime as it was committed, and filing applications for criminal complaints with the court.
"Any citizen can file for complaints at any time in Massachusetts," he said. "Officers do have discretion and I would say the presence of independent witnesses can make a difference in whether an officer decides to file charges."
Learning The Ropes
"Lisa" is among those learning the ropes of filing criminal charges. On Nov. 15, she filed applications for complaints against four of the five women she alleges assaulted her after pulling her from her vehicle during a Nov. 14 midday incident on West Main Street in North Adams. She is unable to file charges against a fifth women; she does not know the person's identity, "Lisa" said.
"Lisa" is not her real name, the 24-year-old North Adams woman's identity is being withheld at this time because police have informed her that one of the alleged assailants filed a complaint against her at the Northern Berkshire District Court.
The names of those "Lisa" claims assaulted her are being withheld because two of the alleged assailants are 16-year-old juveniles and as of this writing, no charges have been brought against any person involved in the incident.
Certain specifics of the attack are being withheld because of the pending court action.
The city police log documented that the incident was initially reported as a motor vehicle accident with injuries and a fight in progress.
"Lisa" is the only person transported from the scene to the North Adams Regional Hospital, where she spent about four hours being examined and treated for head, neck, and facial injuries. The alleged perpetrators left the scene prior to the arrival of police, "Lisa" said.
On Nov. 14, city police Director Michael Cozzaglio confirmed that the report of an "accident" was in error and that a police investigation was underway.
Later on Nov. 14, police told "Lisa" that they would not be filing charges against her alleged assailants because they did not witness the incident, she said.
iberkshires agreed to follow "Lisa" through the process of filing the charges on her own.
She arrived at the Northern Berkshire District Court building accompanied by a family member at about 11 a.m. Nov. 15.
This was her second morning visit to the court; when she attempted to file the charges earlier in the day, she learned that she needed additional information and retrieved that information after making a trek to the city police department.
Police were unable to provide "Lisa" with the identity of the fifth person "Lisa" said was involved in the incident.
"Lisa" did exhibit obvious signs of injury, and said that she was in some pain.
Once inside the courthouse, she questioned court employees about how to proceed and any costs. She was given several forms, called "application for complaint," and was told that the cost to file misdemeanor charges are $15 per application no matter how many potential charges are listed.
Forms And Fees
For example, an application against "John Smith" asking for three misdemeanor charges costs no more than an application asking for one misdemeanor charge. She was also provided with "indigence forms" which ask that application fees be waived for those who meet specific financial criteria.
There is no charge to file an application seeking a felony charge.
If she is required to pay four application fees, "Lisa" will pay $60 to the court. Alleged crime victims do not pay application fees when police file charges.
The indigence form asked about waiving additional costs as well, including costs associated with expert testimony, testing costs, and other considerations that could be involved in a criminal trial.
"Lisa" did not seek a waiver from all the possible court expenses listed, in part because she was not familiar with what the various items and phrasing meant and whether any of it would pertain to her situation, she said.
After completing the necessary paperwork - the process required about 45 minutes - "Lisa" brought the forms to a counter and a court employee reviewed the forms. The employee raised concerns about one of the criminal complaint applications after recognizing a name.
An Unexpected Trip To Juvenile Court
The employee told "Lisa" she believed the person identified was a juvenile and if that was the case, the application could not be filed at district court.
"Lisa" was permitted to telephone city police and explain the situation. Police informed "Lisa" at that point that two of the alleged assailants are juveniles and complaint applications would have to be filed at the juvenile court.
iberkshires did not accompany "Lisa" to the juvenile court. She did subsequently file complaint applications at the Northern Berkshire Juvenile Court, she said.
"Lisa" believes that police should have filed the charges. There are witness accounts of the incident and her injuries speak for themselves, she said.
"I spent hours in the emergency room and I had a doctor's appointment today," she said. "I spent the morning trying to do this and it was nerve-wracking and humiliating. I have children who want to know what happened to their mother. If this was a domestic, charges would have been filed no questions asked and the police even told me that. So what's the difference between a domestic and five people on one?"
A Right In Massachusetts
Massachusetts is one of the few states that allow a citizen to file a criminal complaint on their own, said Northern Berkshire District Court Clerk Magistrate Timothy Morey. In most states, if police decline to file criminal charges, the only citizen recourse is a civil lawsuit.
"It is a right in Massachusetts that a citizen can file," Morey said. "Massachusetts allows that to its citizens."
Once a citizen files a criminal complaint application, several outcomes are possible, Morey said.
If an application seeks a felony charge, such as assault and battery with a dangerous weapon or a larceny of property valued at over $250, Morey said he may decide to issue a complaint on the merit of the application. Other options are scheduling a show-cause hearing, or deciding against any additional action.
If an application involves misdemeanor charges, Morey may schedule a show-cause hearing or decide against pursuing the matter. Morey reviews applications and additional information before making any decisions.
Show-cause hearings allow the person seeking a charge and the person who would be charged to present their version of events to a clerk-magistrate or an assistant clerk-magistrate. Both sides may present witnesses and evidence that supports their claim. Decisions about issuing charges follow the hearings.
"The application fees are routed to the State Treasury and go into the general [revenue] fund," Morey said. He said he does not believe that the funds are earmarked for any specific purpose.
Those asked if the right of citizens to file charges was creating an environment that discouraged police involvement declined to comment.
Susan Bush may be reached via e-mail at email@example.com or at 802-823-9367.
|No uninvolved witnesses mid day on west main street? And no charges by police? I have been in the same situation, but because of the person(s) involved and even though witnesses did say the altercation happened still no charges were filed as the police didn't see it happen...hmmm maybe it had something to do with who the assailants where? In our society it is a shame that the victim has no rights the the assailants have them all. |
|from: ||on: 11-19 00:00:00-2006|
|I think it is just awful that the victim has to pay all these application fees. However, I know its the law. After this goes to court and the victim wins does the defednants have to pay her court costs including the application fees?|
|from: ||on: 11-16 00:00:00-2006|