LRS attorney affirms client's character, averting jail term

Issue December 2005 By Chad Konecky

When a 25-year-old defendant walked into the Dedham offices of DeVito & Stavros on the heels of a Lawyer Referral Service call earlier this year, criminal attorney John DeVito didn't see a violent, calculating threat to society. DeVito looked beyond the impersonal facts of the record to unmask a scared, clinically depressed man who didn't fit the profile of an armed home invader charged with five criminal counts after attempting to drag his ex-girlfriend to the roof of her apartment building.

"It became clear pretty quickly that not only was I going to take the case, but that I felt like I wanted to bend over backwards for this guy," recalls DeVito, 55, now in his 28th year of practice. "I felt for him. I couldn't argue he was insane or didn't know right from wrong. But it was obvious that depression had overtaken him."

It would be hard to argue the contrary. DeVito's client was a cum laude college graduate from the New Bedford area and a former two-time Little East Conference tennis champion with no prior criminal record. Both his parents were schoolteachers.

None of that mattered last December, however, when DeVito's client forcefully entered his ex-girlfriend's apartment, laid in wait, then grabbed her as she entered the dwelling. A brief struggle ensued outside the door as the young man attempted to verbally and physically command the woman to the rooftop.

During the encounter, DeVito's 6-foot-tall client pulled the victim's hair and kicked her before a knife shook loose from his sweatshirt pocket, landing on the floor. The victim kicked away the knife, broke away from her assailant and fled. DeVito's client initially ran toward the rooftop, then retreated to his car. He was arrested shortly thereafter via a traffic stop.

The defendant was charged with a trio of felony indictments: assault with intent to murder, armed home invasion and assault with a dangerous weapon, his shod foot. Police also charged him with misdemeanor charges of breaking and entering and assault and battery. A guilty verdict on all counts would have exposed the defendant to a multi-decade sentence.

While the agreed-upon facts were grimly incriminating, DeVito went to work on the mitigating circumstances. His client informed two police officers the day of his arrest and thereafter steadfastly maintained that it was his intention to kill himself that day with his ex-girlfriend as his witness. He never drew or brandished the knife, which he carried as his intended means of suicide, and it was exposed inadvertently and prematurely.

What's more, DeVito's client had battled a clinically diagnosed bout of depression five years earlier at the age of 20 and informed his parents that he believed he required hospitalization for his mental state in the days preceding the incident.

"His health insurance at his new job hadn't kicked-in yet and the first appointment they could get with a psychiatrist, which they did schedule, was in January," explains DeVito, a Westwood native and Waltham resident. "The incident took place in December. The father even sensed the kid was at a breaking point and went looking for him that day. He actually called the girlfriend and told her to steer clear of him, but by that time, he was already in her apartment."

DeVito made use of several pretrial conferences to whittle away the heavy-hitting felony charges of assault with intent to murder and armed home invasion. Underscoring the undisputed facts that the knife was never drawn and that the struggle actually took place in the hallway outside the home, DeVito prevailed upon the DA to agree to a change-of-plea hearing in Norfolk Superior Court. The two lead charges were not pursued by the commonwealth via a nol. pros. entry and the defendant pled guilty to the three lesser counts.

"The DA was realistic about the case and accepted that this kid had an illness," says DeVito.

The judge then called a lobby conference with the parties, heard testimony from the defendant's therapist and a victim-impact statement from the ex-girlfriend's mother before sentencing last month. DeVito's client was ordered to wear an electronic-monitoring ankle bracelet for one year Ñ a period to be reduced to six months if he complies with all the terms of the order Ñ followed by a three-year probation period.

"He's a basically good kid from a nice family and he had a lot going for him from a number of perspectives," says DeVito. "His intent wasn't so much to hurt her, though his unfortunate actions resulted in that. He wanted to hurt himself. You see him now, emotionally stabilized and on medication, and he's a completely different person."

Remarkably, DeVito's client was intent upon using an attorney in the New Bedford/Fall River region until a relative serving as a probation officer in Florida advised the family to seek out a lawyer more local to and familiar with the court.

"The LRS is a valuable service," says DeVito. "It always sends me something and in this case, I really think it made a difference for the defendant. It more than pays for itself every single year."

The LRS Case in Point is a regular feature in Lawyers Journal. The feature highlights cases that pertain to interesting legal issues or large fee generating cases that were referred to attorneys through the MBA's Lawyers Referral Service.

LRS makes more than 25,000 referrals each year to its 1,200 attorneys across the state. If you are interested in becoming a member of LRS in order to obtain referrals, please call the Lawyer Referral Service at (617) 338-0556.