Suffolk District Attorney Rachael Rollins on Wednesday accused a defense attorney of misleading a judge and one of her prosecutors into dismissing domestic violence charges against a Boston police officer, charges that she said she will now seek to reinstate.
In a court filing late Wednesday, prosecutors asked a judge to reconsider his decision to dismiss assault charges against Officer Alexis Herrera-Brea Jr., saying his lawyer misrepresented a 1997 opinion by the Supreme Judicial Court that determined pavement can be considered a dangerous weapon.
After researching the SJC’s decision, “. . .we discovered the Supreme Judicial Court case cited by defense counsel held the exact opposite proposition defense counsel had claimed (i.e., pavement can in fact be a dangerous weapon),” Rollins’s office wrote in the filing.
The dispute marked an abrupt shift in the whirlwind legal proceedings that saw Herrera-Brea Jr. arrested while on duty Tuesday afternoon, and the charges dismissed about two hours later when he appeared in Dorchester Municipal Court.
In court that day, attorney Benjamin Megrian cited an Appeals Court ruling that stated pavement could not be considered a dangerous weapon during his oral argument to the judge. But that ruling was overturned a year later by the SJC, according to Rollins’s office.
In a one paragraph, hand-written motion to dismiss the charges against his client, Megrian referenced the contents of the Appeals Court decision — “which holds that under the circumstances alleged in the police report,” he wrote — but gave the law book citation for the 1997 SJC ruling that actually established that pavement is a dangerous weapon.
Prosecutors say they had to research the case in haste after receiving Megrian’s motion and pulled up the Appeals Court ruling, but not the SJC opinion. Both cases are called Commonwealth versus Saxon.
In their Wednesday filing, prosecutors argue there “are sufficient facts to establish probable cause to believe that the defendant intended to inflict serious harm by slamming the alleged victim into the ground of a driveway with such force that he (the alleged victim) thought he might have a concussion.”
Rollins said prosecutors had made “an unfortunate misstep that was immediately noticed and corrected prior to any outside inquiry.”
“In this case, the legal standard suggested by defense counsel had been overturned and we didn’t catch his error,” Rollins said in the statement. “Additionally, insufficient time was allowed by the Court to review the Motion to Dismiss and the legal precedent cited.”
Megrian said in a statement Wednesday night that it was “disingenuous” for prosecutors to say they were misled.
“Where the district attorney’s office asked for time to review the Supreme Judicial Court case to which they were directed, where the Court granted them that time, and where they afterwards agreed that the charges were brought in error, it is disingenuous for them to suggest they were tricked by an attorney or not afforded a fair hearing by the court,” Megrian said.
Herrera-Brea’s arrest was announced by Boston police Tuesday night on the department’s website. It contained no details of the incident that led to him being charged with assault and battery with a dangerous weapon and domestic assault and battery.
According to a recording of Tuesday’s court proceeding, Megrian told Judge Paul M. Treseler that his client was accused of knocking a relative into the pavement during an argument on Sunday.
Megrian told the judge the misdemeanor charge involved Herrera-Brea throwing a punch at his brother. Under state law, Megrian said, his client was entitled to a clerk’s hearing before Boston police could charge him with that crime.
The Suffolk assistant district attorney in court on Tuesday acknowledged that Herrera-Brea was entitled to a clerk’s hearing on the second charge. Her name was not listed on court records.
Following the legal discussion, the judge never arraigned Herrera-Brea.
According to Megrian and court records, Herrera-Brea was arrested on a domestic violence charge in April 2020 and was placed on probation last fall. Since his April 2020 arrest, Herrera-Brea was on administrative duty inside the station and not permitted to carry a firearm, according to Boston police spokesman Sergeant Detective John Boyle.
Boyle referred questions about the status of the new case against Herrera-Brea to Rollins’s office.
John R. Ellement can be reached at email@example.com. Follow him on Twitter @JREbosglobe. Charlie McKenna can be reached at firstname.lastname@example.org. Follow him on Twitter @charliemckenna9. Jeremy C. Fox can be reached at email@example.com. Follow him on Twitter @jeremycfox.