Pat Greenhouse/Globe Staff
NEW BEDFORD — A judge who ordered a man’s domestic violence charges to be dismissed and expunged due to his military service was asked by the state to reconsider his decision on Wednesday in New Bedford District Court.
Crispin Birnbaum, general counsel for the Massachusetts Probation Service, argued before Bristol County Judge John P. Stapleton that there is no statute in Massachusetts allowing the court to expunge records as he did.
“The court’s order to vacate the arraignment, dismiss the matter prior to arraignment as if it hadn’t occurred, and expunge the matter from the record is, we believe, inappropriate and begs reconsideration,” Birnbaum said.
The unusual request comes in an already unusual case. Allan T. Santos had been charged with assaulting and trying to strangle his former girlfriend, Denise Bastos, on his boat in October 2016.
Stapleton, the third judge involved with his case, dismissed the charges under the Valor Act, a 2012 law that was intended to give veterans certain economic benefits or to help them get back on their feet. The law gave judges the discretion to dismiss criminal charges against veterans in some cases and divert them to counseling or rehabilitation instead.
The law did not prevent its application in cases of violent criminal charges, and an attorney working with the victim in New Bedford case said it is being used as a “get-out-of-jail-free card.” Defense attorneys are advertising their expertise to drunken driving clients after the Supreme Judicial Court unanimously ruled last year that the law could be applied to such cases.
After the Globe wrote about the New Bedford case in December, lawmakers began revisiting the Valor Act to tighten up eligibility. The law has not yet been amended.
The New Bedford case was further complicated, because Stapleton allowed the Valor Act to be applied retroactively. The law calls for the Valor Act defense to be raised before arraignment. Stapleton heard the Valor Act defense and decided to dismiss the charges, even though Santos had already been arraigned.
And the judge went even further, ordering the court to eradicate any record of the criminal charges, after Santos’s lawyer, Steven M. Bausman, argued that he never should have been arraigned.
Stapleton dismissed the charges in August 2017 and ordered them removed from Santos’s criminal record.
In its motion for reconsideration, the probation department argued that the judge’s order improperly forces it to rewrite history.
The court provided Santos with a lawyer and imposed pre-trial probation conditions — both of which require state resources and create documents of their own. “None of these events could have occurred without an arraignment,” Birnbaum wrote.
The probation department must comply with its statutory duty to accurately reflect the charges in its own record-keeping system, the motion argued.
“Many public purposes are served by this requirement, not the least of which is informing courts in the future of any past court involvement by this or other defendants,” Birnbaum wrote. “The court has no authority, given these facts, to order Probation to do otherwise.”
Nothing in the Valor Act allows a judge to erase charges that have already been filed, Birnbaum said.
“There’s nothing special about his status as a veteran that allows him to approach the court to expunge or dismiss or remove from sight the existence of this case,” she said in court.
But Santos’s attorney painted him as a victim of a sloppy court system. He had intended to invoke the Valor Act so Santos never should have been arraigned, he said in court on Wednesday.
“Mr. Santos, through no fault of his own, seems to have fallen through the cracks of the system,” Bausman said.
Bausman also said it was too late to ask the judge to reconsider his decision. The probation department should have filed its motion within 30 days, but did so only after media attention, Bausman said. The Globe wrote about the case in December.
The judge did not rule immediately, instead asking the lawyers to submit pleadings detailing the cases they had raised in their oral arguments.
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