Suffolk County District Attorney Rachael Rollins’s office has asked a judge to reconsider his decision to dismiss assault charges against a Boston police officer.
Prosecutors say the charges were dismissed based off a misrepresented reading of a Supreme Judicial Court case.
On Tuesday, Boston police arrested Officer Alexis Herrera-Brea on charges of assault by means of a dangerous weapon and assault and battery after he was allegedly “involved in a domestic violence incident involving a non-intimate family member,” the department said in a statement.
Herrera-Brea was placed on administrative leave, and the Boston Police Anti-Corruption Unit has opened an investigation into the matter, officials said.
“This alleged behavior is completely unacceptable for any member of the Boston Police Department and will be fully investigated,” Superintendent-in-Chief Gregory Long said in a statement. “The Boston Police Department will continue to ensure our integrity and credibility by taking all alleged domestic violence matters involving department employees seriously.”
Here’s what to know:
What prosecutors say happened
Herrera-Brea appeared in Dorchester District Court later on Tuesday, where his attorney, Benjamin Megrian, said his client allegedly knocked a relative into the pavement during an argument the previous Sunday, according to The Boston Globe.
The charges were ultimately dismissed after Megrian cited a 1997 Supreme Judicial Court opinion, according to prosecutors.
“Unbeknownst to the Commonwealth at that time, the defense attorney misrepresented what that case stated,” Rollins’s office said in a statement.
Specifically, Megrian, in his motion, pointed to a 1997 SJC case, “which holds that under the circumstances alleged in the police report, the pavement cannot be a dangerous weapon.”
According to Rollins’s office, the court actually determined the opposite in its ruling and that Megrian was in fact referring to a previous Appeals Court ruling.
Judge Paul Treseler granted prosecutors little time to review caselaw after Megrian filed the motion, however, officials said.
“In hast, the Commonwealth pulled the case up on a cellphone and saw the
Massachusetts Appeals Court case finding, which found pavement cannot
be a dangerous weapon, but not the Supreme Judicial Court case a year
later overruling the Appeals Court,” prosecutors said.
Treseler then “allowed the defendant’s Motion to Dismiss the felony charge of assault and battery with a dangerous weapon prior to the arraignment,” prosecutors said.
Only after the proceeding did prosecutors determine “the misrepresentation by defense counsel and the error (they) had made,” the statement says.
Megrian’s motion also asserted that the other charge, a misdemeanor that involved Herrera-Brea allegedly punching his brother, “should not have (been) issued without a clerk’s hearing.”
According to the Globe, the prosecutor present in court agreed that Herrera-Brea was entitled to a clerk’s hearing for that charge.
Herrera-Brea’s attorney responds
Megrian, in a statement to the newspaper Wednesday, called it “disingenuous” for Rollins’s office to say he misled anyone.
“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.
What happens next
On Wednesday, Rollins’s office filed a motion to reconsider the felony charge that was dismissed.
In their statement, prosecutors said they believe “there is support for the charge” and are also alternatively prepared to “seek the issuance of a new criminal complaint on this offense.”
“We have every intention of pursuing criminal charges in connection
with this domestic violence allegation,” Rollins said in a statement. “In this case, the legal standard suggested by defense counsel had been overturned and we didn’t catch his error. Additionally, insufficient time was allowed by the Court to review the Motion to Dismiss and the legal precedent cited. This was an unfortunate misstep that was immediately noticed and corrected prior to any outside inquiry.”
According to the Globe, Herrera-Brea has been on probation since the fall following an arrest for a domestic violence charge in April 2020.
A department spokesperson told the newspaper Herrera-Brea was on administrative duty at the station and was not allowed to carry a firearm since he was arrested.
“Officer Herrara-Brea was on probation for an act of violence when he allegedly committed this new violent act,” Rollins said. “That is unacceptable conduct by a member of law enforcement. I have taken immediate steps to resolve this issue and we stand prepared to assist the Department of Probation in the matter of Officer Herrara- Brea’s blatant probation violation.”
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