ATTORNEY PATRICK J. NOONAN GETS AGGRAVATED FELONY DISMISSED AGAINST HIS CLIENT FOR WHOOPING HIS 6 YEAR-OLD STEP-SON WITH A BELT – AND SAVES HIS CLIENT FROM BEING DEPORTED FROM U.S.

Defendant was charged with an aggravated felony. The allegations were that the Defendant physically abused his 6 year-old step-son with a belt. Teachers noticed that the child had bruises and marks on his arm. When asked about the injuries, the child stated that his step-father whooped him with a belt. The child stated that his step-father was about to whoop him on the butt with a belt but he (child) was struck on the arm when he tried to block the belt from hitting his butt. The school took pictures of the child’s left arm, which had marks and bruises on it. Defendant admitted to hitting his step-son with the belt but only did so to discipline the child for his misbehavior.

From the very beginning of the case, Attorney Patrick J. Noonan asserted the defense of parental privilege, a newly recognized defense, and argued that his client was justified in using reasonable force to discipline his step-son.

In Commonwealth v. Dorvil, 472 Mass. 1 (2015), the Supreme Judicial Court recognized parental privilege as a new defense. It states that: a parent may not be criminally liable for the use of force against a minor in his care if the force used: (1) is reasonable, (2) is reasonably related to the purpose of “safeguarding or promoting the welfare of the minor,” including the punishment of the minor’s misconduct, and (3) “neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.”

At trial, Attorney Patrick J. Noonan was prepared to prove that his client’s physical discipline of his step-son was reasonable and met the criteria of Dorvil. First, Attorney Noonan sought to show that the physical discipline was justified to punish the child’s misbehavior. The child had been misbehaving in school, repeatedly, and his misbehavior was escalating. At first, Defendant and his wife did not use any force to discipline the child and instead disciplined the child in other ways but the child continued to misbehave. After exhausting all other forms of discipline, Defendant used force. Second, Attorney Noonan sought to show that the force used was reasonable. Defendant did not pull down the child’s pants with the intent to spank him on his bare-bottom. Nor did the Defendant whoop him repeatedly with the belt. Nor did the Defendant use excessive force. Instead, Defendant lightly spanked the child with the belt at least two times. Third, Attorney Noonan sought to show that the whooping did not cause or create a substantial risk of causing physical harm (beyond fleeting pain or minor, transient marks). Specifically, the photos showed light, faint, and small bruises to the child’s arm, which fully healed after several days. Thus, the physical harm did not extend beyond fleeting pain or minor, transient marks. Lastly, Attorney Noonan sought to show that the force did not cause or create severe mental distress. Specifically, in counseling sessions (subsequent to the incident), the child was found to be happy, healthy, and in no distress. In fact, the child told counselors that he loved his step-father and exhibited great affection for this step-father.

On the day of trial, Attorney Patrick J. Noonan consulted with the District Attorney as to whether the child was competent to testify – and whether the child would be traumatized or harmed should he be forced to testify against his step-father – and whether it was in child’s best interest to testify against his step-father. Attorney Noonan and the DA interviewed the child to address these and other issues. After interviewing the child, the DA decided to dismiss the case.

Defendant was not a U.S. citizen. Since this was an aggravated felony, Defendant faced deportation if convicted.  Immigration and Nationality Act § 237(a)(2)(A)(iii) provides that “any alien who is convicted of an aggravated felony at any time after admission is deportable.” The consequences of a conviction would be devastating for the Defendant. If convicted, Defendant may be detained without bond and will be deported as expeditiously as possible. An aggravated felon is “conclusively presumed” to be deportable and is also rendered ineligible for virtually all forms of relief from removal. A person deported as an aggravated felon may be banned from the U.S. for life.

Result: Attorney Patrick J. Noonan was able to get the aggravated felony dismissed saving his client from the very real prospect of being deported from the U.S.