© 2004 Paul G. Stuckle
Used with permission of the author
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| Chapter 2 Domestic Violence And The Rule Of Law |
| Next Due Process by Charles Corry, Ph.D. and Richard Davis, A.L.M. |
The special nature of domestic violence allegations
True domestic violence must stop
Innocent family members can be falsely accused of domestic violence
Examples of what is not domestic violence
Who is the real victim anyway?
Zero tolerance and no drop policies
The domestic violence industry
Domestic violence is a political crime
The family advocacy center
Follow the money
Team unity: Take out a family for the team
Pssst...They are coming...Or are they already here?
Changing the rules to convict
Syndrome evidence may be admissible against the accused
Convictions without physical evidence
Summary: Recipe for conviction
Domestic violence legal facts: A checklist
Issues upon arrest
Consequences of a conviction or plea bargain
Selecting the right attorney
Do not attempt your own defense
Rules for the accused
Finding the right criminal defense attorney
Length of practice and experience
Reject plea bargains
Prepare a vigorous pre-charge defense to avoid prosecution
Prepare a vigorous defense for trial
Paul Stuckle, Esq., is a criminal defense attorney based in Plano, Texas
No rational person condones violence toward anyone, particularly a family member or intimate partner. In America there are many tragic domestic relationships that involve battered men, women, and children. A true victim in a violent intimate relationship needs immediate support and protection. A true batterer needs to face the legal consequences of their actions.
But the term "batterer" is commonly misused in domestic violence debates. Battering does not refer to a single argument, nor does it mean the occasional conflicts that many couples have that may grow to yelling at each other and some pushing or shoving. Rather, battering involves beating and verbally abusing an intimate partner over a long period of time (Levy, 1984, p. 23).
The legislature has enacted laws to assist police and prosecutors convict the guilty and stop the abuse of intimate partners and family members. The intent behind these laws is well meaning and necessary. Problems arise when laws designed to protect a victim of domestic violence are used too broadly and are applied to normal families and relationships. A big difference exists between an abusive partner repeatedly committing violent acts, and a nonviolent family or relationship in which a single argument went too far.
To the self-proclaimed saviors and protectors of abused "victims," any allegation of domestic violence means the relationship must be one continuously engaged in abusive behavior.
As John Maquire puts in his article The Booming Domestic Violence Industry in Massachusetts News:
"The domestic violence entrepreneurs and state officials live in a different world from us. A sense of nameless vague threat is always in the background. To hear the pros talk, all the men they deal with are batterers, sexual abusers, or virtually time bombs of violence. Repeated cliches like "at risk" and "a safe place" and "maintaining safety" pepper their sentences. Yet, in many cases, there is no evidence of violence or any kind of serious harm to children, merely an accusation by the mother. But in the DV industry, when the accusation is made, the case is closed."
If an argument between intimate partners and spouses is the benchmark for domestic violence, then almost every couple and family in America would be defined as an abusive relationship. This governmental overreaction, and dragnet targeting of normal families and relationships, and treating them as criminals has led us to massive injustice across the nation.
Husbands and wives, boyfriends and girlfriends, have arguments. Does that now mean, or justify, a trip to jail and a criminal conviction with lifetime penalties?
Human beings make mistakes, cause accidents, and act immaturely at times. Everyone has past conduct they wish could be taken back. Part of being human is sometimes hurting those loved the most. The absurdity is to classify a single, out-of-character, nonviolent act as "criminal."
For instance, it is not domestic violence to:
Yell and scream at our girlfriend, spouse, or another household member, even if the neighbors hear it;
Use profanity during an argument with a girlfriend, spouse, or household member;
Engage in minor pushing incidents with a girlfriend, spouse, or household member;
Engage in consensual sex that may be loud or rough, e.g., see The Joy of Sex;
Engage in horseplay, wrestling matches, and pillow fights or similar mock combat even if accidents result;
Hold the arm or hand of a girlfriend, spouse, or household member while arguing;
Restrain an intimate partner to prevent them from hurting themselves or another family member;
Momentarily block the path of a girlfriend, spouse, or household member;
Throw and break items during an argument, or engage in consensual S&M;
Awake violently from a nightmare, or react violently when someone awakens you suddenly;
Say hurtful and mean things to a girlfriend, spouse, or household member;
Use self defense to stop a girlfriend, spouse, or household member from attacking you.
Serve, or have served in the Armed Forces of the United States, nor is such service a reasonable basis for "fear" in a rational and sane individual.
With "Zero Tolerance" arrest policies and "No Drop" prosecutions, the number of arrests for petty family arguments has skyrocketed. A former prosecuting attorney explains the phenomena:
"Christopher Pagan, who was until recently a prosecutor in Hamilton County, Ohio, estimates that due to a 1994 state law requiring police on a domestic call either to make an arrest or to file a report explaining why a no arrest was made, "domestics " went from 10 percent to 40 percent of his docket. But, he suggests, that doesn't mean actual abusers were coming to his attention more often. "We started getting a lot of push-and-shoves," says Pagan, "or even yelling matches. " In the past, police officers would intervene and separate the parties to let them cool off. Now those cases end up in criminal courts. It's exacerbating tensions between the parties, and it's turning law-abiding middle class citizens into criminals."
Cathy Young, Domestic Violations, Reason Magazine, April 1998
The legal definition of a crime "victim" is not what one might think. The word "victim" seems to mean the person who was assaulted, stabbed, murdered, or had their property stolen. Under the law, however, the "victim" of a crime is the "State." All criminal cases are therefore styled: "The State of ______ vs. The Defendant."
Once the authorities become involved in a domestic disturbance, they will forever be intertwined with the eventual outcome of the incident. The State, meaning the government, police, and prosecutors, solely decide if a case will be prosecuted or dismissed. Even if the "real victim," i.e. the person who supposedly was assaulted, informs the authorities of their desire to have the case dismissed, the charging decision is still left up to the government.
In Texas, the allegedly assaulted person can provide the government with an "affidavit of non-prosecution," a document stating prosecution is not desired and requesting the case be dropped. Until recently, such affidavits were given substantial consideration from the government. After all, why would the authorities want to prosecute when the actual victim did not desire it? The answer is simple:
A constant complaint from those at the center of a domestic violence investigation is how irrelevant the family is to the investigative team. The team wants to win the case. It wants a criminal conviction. And will do anything to get it. The team, despite its public overtures, does not care about the individual family it is making life-altering decisions for. The family, alleged victim, defendant, and children alike are all mere pawns, literally at the mercy of this governmental machine.
"The woman sitting across the table often breaks into tears and fits of trembling. She lives in fear. She says she has been threatened and emotionally battered by those who call themselves "front-line workers" in the war against violence against women. Since the violence against women specialists invaded their lives a year ago, husband and wife have developed ulcers, been financially battered and say they survived many attempts to break up their marriage.
Now they're angry...From the start the advice from support workers connected to the Domestic Violence Court was that she should break up her marriage. She should not risk living with a violent man. Her attempts to defend her husband were met with we-understand-and-we-know-better attitudes; she was afraid of him and was trying to protect him so he wouldn't be angry. When it became clear she had no intention of separating from her husband, the threats from domestic violence specialists connected to the court moved to a new level that still terrifies her.
'They seemed to be threatening to take my child. They said if I wasn't going to protect my child from his father, then the system would have to. '
'I learned it's a system that doesn't listen. '"
Dave Brown, The Ottawa Citizen, 2001
Cult of The Domestic Violence Industry
John Maguire, The Booming Domestic Violence Industry, Massachusetts News
In response to the need to supply the necessary bodies to perpetuate the domestic violence industry, law enforcement has adopted a new tool: Zero Tolerance.
What does "Zero Tolerance" mean? Two police officers will be dispatched to a home regarding a domestic disturbance. They will not arrive empty handed. Patrol units, equipped with computers, enable officers to quickly determine if this address has had any prior domestic incidents. Officers will know the complete criminal history of each spouse before arrival.
The police will typically find a household in which a man and woman have argued and are emotionally upset. The officers will separate the parties and conduct a brief interview of each one's version of events. The police will look for physical signs of violence, such as bleeding, red marks, or scratches on the individuals. They will also search the house for signs of a struggle, thrown ashtrays, knocked over furniture, spilled food or drinks, pictures askew on the wall, etc. [Ed. note: No warrant is required for such a search in domestic cases.]
Then the two officers will confer with each other and compare stories. A decision to arrest will then be made. This entire "investigative" process can be completed in mere minutes, with the arrest decision made in a split second.
'What couple does not encounter stress, especially when they have children? But in the fever of emotion, a woman can call " 911" and have three police cars there in minutes. After this fateful act, she loses all control. The state prosecutes her husband whether she likes it or not. He is jailed and prohibited from returning home... And all they wanted was the police to defuse a tense situation...This policy (Zero Tolerance) is designed to accustom society (both police and victims) to the intrusion of the state into private lives. Couples are arrested just for having an argument. Neighbors phone the police. What's next? Cameras in our homes just like George Orwell's "1984" '?
Editorial, Winnipeg Free Press, "Zero Tolerance," February 10, 2002
The Dallas County Texas Task Force on Domestic Violence was a federal grant award recipient in 1998 for $1,333,951. The title of the award, "Grants To Encourage Arrest Policies," is a federal directive encouraging "Zero Tolerance." The grant states:
"Purpose: These funds will allow the Dallas County Task Force to continue ensuring arrests and prosecution of domestic violence offenders, provide counseling and support to victims, and ensure that victims have access to protective orders. Funds will support the addition of staff attorneys and prosecutors."
and then the case will not be dropped.
"Zero Tolerance" by the police leads to a "No-Drop" policy by the prosecution. An arrest means the case will be prosecuted. Prosecution offices associated with Family Advocacy Centers will proceed with the case even if the family situation has been resolved. An "Affidavit of Non-Prosecution" is ineffective as this legal document merely reflects what the victim wants to do. The affidavit indicates the family is in healing and desires to work on repairing the marital relationship. The Family Violence Industry does not consider salvaging the marital relationship as an acceptable end result. The "protectors" view of their job entails ending the relationship for the safety of the "victim."
Prosecutors are not concerned with the wishes or needs of the real victim. The "No Drop" policy requires the case to go to trial even if the real victim wants the charges dismissed. "No-Drop" means the government will push the case all the way regardless of hardship upon the family. To the entrepreneurs of the Family Violence Industry, "helping" the victim necessitates separation of the family, enforced through protective orders, followed by divorce. In addition, the helping agenda probably includes loss of employment for the accused spouse, financial hardship, and adding unnecessary emotional stress to a family.
"Hello. I'm from the Government and I'm here to help." This old saying is satirically funny. Governmental intervention into anything usually creates nameless, faceless bureaucracies, solving nothing, complicating everything, and resulting in higher taxes.
The government has definitely made its way into family violence:
"Like many crusades to stamp out social evils, the War on Domestic Violence is a mix of good intentions (who could be against stopping spousal abuse?), bad information, and worse theories. The result has been a host of unintended consequences that do little to empower victims while sanctioning interference in personal relationships."
Cathy Young, Domestic Violations, Reason Magazine, April 1998
Every few years a new "crime de jour" is created. This phenomenon begins with a legitimate social problem needing to be addressed. Examples in recent years of "crimes de jour" include "Driving While Intoxicated" and "Child Sexual Abuse." The tragic consequences of isolated worst-case scenarios of these crimes are highly publicized. The nation is inundated with media coverage and informed the problem is not being adequately dealt with by the criminal justice system. Crime victims form support groups (such as M.A.D.D. Mothers Against Drunk Driving), and these support groups in turn create lobby groups. The lobbyists influence the media, judges, and politicians. Political candidates sense community outrage and run campaigns with platforms designed to solve the "crime de jour." After each campaign year and legislative session, new laws address perceived omissions, loopholes, and provide additional punishment for those convicted of the "crime de jour."
"Some crusaders openly argue that domestic violence should be taken more seriously than other crimes. In 1996, the sponsor of a New York bill toughening penalties for misdemeanor assault on a family member (including ex-spouses and unwed partners) vowed to oppose a version extending the measure to all assaults: "The whole purpose of my bill is to single out domestic violence," Assemblyman Joseph Lentol said. "I don't want the world to think we're treating stranger assaults the same way as domestic assaults."
Cathy Young, Domestic Violations, Reason Magazine, April 1998
A strange conglomeration of individuals pushing varying agendas comprise the force behind the domestic violence movement. The movement combines legitimate victims and their advocate supporters with professional vendors who have much to gain through concentrated efforts to expand the industry:
"These people, some idealistic and some merely pragmatic, have networked, talked with each other, served on various commissions, boosted each other's careers, and helped to expand the definition of family violence, and the size of state and federal funding massively. Only ten years ago, the women's safety-advocates were a small group of idealists, operating on pennies. Today the movement has grown large on state and federal tax monies. Every month, it seems spawns new sub-programs, clinics, shelters, research institutes, counseling centers, visitation centers, poster campaigns. Today, domestic violence is a big industry... Mapping the full extent of the domestic violence industry is not easy, because it's a cottage industry, spread out in hundreds of places. State and federal money (in each state) goes to well over a hundred institutes, clinics, programs for counseling or outreach or coordination or training, computer databases, coalitions, shelters, PR agencies and other groups."
John Maguire, The Booming Domestic Violence Industry, Massachusetts News
The media, pressured by women's safety advocate groups has perpetuated public hysteria by over inflating the true incidence of domestic violence. While a legitimate social problem and cause for reasonable concern, the response to the force-fed hysteria has been legislative overkill. In order to facilitate the legislative demands, bureaucracies must be formed. The result is "The Family Advocacy Center."
A typical family advocacy center combines many agencies and individuals into one facility. The center will house police, legal, medical, social service, substance abuse, housing, women's advocacy, victim's rights, and counselors in one facility. The Irving Texas Family Advocacy Center defines itself as "one stop shopping for victims."
Federal law provides funding to states for the creation, development, and utilization of Family Advocacy Centers through the Family Violence Prevention and Services Act. The bottom line for the falsely accused is this: Domestic violence is now an enormous financial industry. Each state receives millions of federal dollars in grant money by adopting provisions of federal law.
"(Women's Shelter Centers) provide DSS (Department of Social Services) with additional clients. The women's groups get more money and DSS gets more state and federal money. They both are artificially inflating their numbers. They inflate domestic violence statistics this way and through the use of coerced restraining orders. By artificially inflating the domestic violence statistics they are able to create political hysteria leading to more funding."
Nev Moore, Unhealthy Relationship between DSS and Domestic Violence Industry
In effect, the government has created a self-fulfilling prophecy. Federal money is awarded to communities who can statistically justify the need for a family violence center. In so doing, the government itself perpetuates charges of domestic violence. It creates a "Domestic Violence Industry." This circular reasoning mirrors the previous "crime de jour" of child sexual assault in the 1990's. A comparison of the governmental domestic violence movement with the prior special interest group-driven child sexual assault hysteria illustrates:
"According to the late Dr. Richard Gardner, the reason for the alarming rise in child abuse allegations and specifically false allegations can be rationally explained. "There's a complex network of social workers, mental health professionals, and law enforcement officials that actually encourages charges of child abuse whether they are reasonable or not." Dr. Gardner is referring to the fact that the Mondale Act (CAPTA) is responsible for the dramatic increase in child abuse charges. "In effect, the Mondale Act, despite its good intentions, created and continued to fund a virtual child abuse industry, populated by people whose livelihoods depend on bringing more and more allegations into the system."
A system out of Control: The Epidemic of False Allegations of Child Abuse
The Federal Government will award $20 million in grants in 2004 to communities across the nation to plan and develop Family Advocacy Centers. (United States Department of Justice Fact Sheet on The President's Family Justice Center Initiative). The DoJ's Fact Sheet reveals hidden financial incentives in the formation of centers to promote domestic violence cases. Family violence "services" will create a large number of jobs and benefit center associated professionals. Dropping cases will not. According to the DoJ Fact Sheet, the Family Violence Centers may include the following "services":
Medical Care, Including On-site or Off-site Primary Physical Care, Mental Health Counseling for Victims and Dependents, Sexual Assault Forensic Evidence Collection;
Law Enforcement and Legal Assistance Services, Including On-site Help to Get Protective Orders Signed and Enforced, to Investigate and Prosecute Offenders, and Provide Witness Assistance and Court-based Victim Advocates;
State-of-the-art Information Sharing and Case Management Systems;
Social Services, Including Federal and State Welfare Assistance for Parents and Children;
Employment Assistance, Including Employment and Career Counseling and Training Through Local One Stop Employment Centers or Other Local Services;
Substance Abuse Treatment;
Child-related Needs Such as Parenting Classes, Teen Pregnancy Services, Supervised Visitation and Safe Exchange Programs, Services for Child Witnesses of Domestic Violence, Assistance for Relocating Children into New Schools, Truancy Programs, and Youth Mentoring Programs;
Housing and Transportation Assistance to Cover Immediate Needs and Help with Long-term Housing Solutions; and
Chaplaincy or Faith-based Counseling Programs Providing Victims and Their Families with Non-sectarian Spiritual Guidance.
Medical: Physicians, S.A.N.E (Sexual Assault Nurse Examiners), and Nurses;
Law Enforcement: Police Investigators, Patrol, Polygraph Operators; Supervisors, Staff;
Legal: District Attorney's Offices; Assistant District Attorneys, Investigators, Staff;
Social Services: Department of Protective and Regulatory Services, Caseworkers, Investigators, Supervisors, and Support Staff;
Employment Offices: Employment Agencies, Workers, and Staff;
Substance Abuse Centers: Substance Abuse Counselors;
Child Related Vendors; Counselors and Therapists;
Housing Authorities; Placement and Personnel
Counseling Services: Mental Health, Rage and Anger, Battering Intervention Prevention Program Counselors, Marriage Counselors, Family Counselors;
Women's Advocacy Group Personnel
Women's Shelter Placement Personnel and Shelter Personnel
Victim Advocate Services Personnel (Advocates to Support Victims and Monitor the Individual Case from Arrest Through Trial).
Ultimately, this begs the big question:
Is the government interested in the quality or the quantity of domestic abuse cases? For example, see Silverstorn, The Truth About Child Protective Services.
A critic of the Domestic Violence Industry, John Flaherty, co-chairman of the Fatherhood Coalition in Massachusetts states:
"This industry is an octopus. It's got its tentacles in more and more parts of everyday life. It's a political movement...This industry doesn't answer to anybody. They're in it mainly for the money...The industry's problems may be about to increase, because it is becoming clear through scientific research that the whole premise of the movement and the industry it spawned that "domestic violence" means bad men hitting helpless, innocent women is just plain wrong."
The Booming Domestic Violence Industry
The Family Advocacy Centers will operate with the group mindset of most bureaucracies. "The agencies' main objective is self preservation: to perpetuate the bureaucracy and to expand the bureaucracy." (Silverstorn, The Truth About Child Protective Services).
How do the advocacy centers get the number of cases they need? A philosophical change at the most basic level was needed. In order to make the numbers work, the definition of domestic violence had to be expanded to extend beyond battering spouses and include normal family arguments and lover's quarrels. In essence, the system adapted by accepting each domestic disturbance "911" call as a potential customer.
"A call to 911 is generally mutually assured destruction of a relationship, marriage, family, and the lives of all involved. It doesn't matter that you're innocent. Or that she attacked you first. Or that you both went over the line and that both of you want to put it behind you and work it out. The system will prosecute you and persecute you until you've confessed your sins even if you've none to confess. And you're not cured until they say you're cured even if you were never sick to begin with."
What Happens When 911 is Dialed Under Current Colorado Law
"Zero Tolerance" and "No Drop" policies create a constant stream of what the advocacy centers need most: bodies. More arrests result in more persons charged. The assembly line then takes over, and the unwitting family becomes passed on from one self-interested protector to another. Post arrest the victim is "assisted" by the police detective, "forensic interviewer," and the prosecutor. Incriminatory statements secured, the prosecution team will temporarily lose interest until trial. [Ed. notes: In moderate to large cities each prosecutor will have at least several hundred DV cases assigned to them at any given time.]
At this point, the victim support groups take over, advocates are appointed, shelters are called, and counselors engaged. The list goes on until the family is emotionally, psychologically, and financially drained. And if it all goes perfectly for the team: conviction.
In essence, a great food chain is created, in which many professionals, counselors, physicians, and vendors, are feeding off persons arrested and charged under "Zero Tolerance" programs. Family advocacy salesmen freely admit the concept is a direct springboard from the child advocacy centers. An Allen Texas Police Investigator states: "The children's advocacy center works very well in Collin County...crime victims groups in Collin County work well together. So having a family justice center would encourage that more." (Dallas Morning News, Collin County Edition, March 14, 2004, "Groups Unite To End Domestic Violence").
The financial rewards for family advocacy centers will not be dependent upon criminal convictions. The funding will be given to the centers regardless of the outcome of the case, or truth of the allegations. With absolute immunity from liability, the family advocacy center team members have no fear of any repercussions for their actions.
The majority of District Attorney's Offices in North Texas follow the national model of having specialized family violence units, where assigned prosecutors and investigators handle only domestic violence cases. Many North Texas law enforcement agencies have specialty domestic violence teams. All of the law enforcement agencies affiliated with an advocacy center assign officers to the center as part of a domestic violence task force.
The creation of specialized domestic violence prosecution teams has but one goal: conviction of a suspected perpetrator. The advocacy team collaboration of prosecutors, police, social workers, medical professionals, counselors and others are a team in every sense of the word. They share more than a central location. They share belief systems, ideologies, strategies, and a game plan. That game plan is to convict any person charged with domestic violence. The belief system is one that every person charged with domestic violence is a batterer. The belief system also finds every victim of domestic violence to be a battered spouse.
The belief system incorporates extreme arrogance. The family violence team knows better than anyone, particularly the family itself, what is best for them. The team works together in secret, planning and mapping out strategy to forge the future of the family, whether it is in their best interests or not.
"Unfortunately, it won't really matter what happened that night or how capable she (alleged victim) is of deciding for herself whether or not she needs protection the court and the prosecutors can still say no. They can stand by and tell that victim that she doesn't really know what's best for her and her family. She is a victim how can she possibly know what's best after what she's been through?
Many of these people know exactly what is best for them and their families, and yet are revictimized by the powerlessness imposed upon them by a system of people who know better."
Janeice T. Martin, Esq.
Domestic Violence The Other Side of Zero Tolerance
The above statement is not an aberration. It is common to find family service plans forced upon alleged victims by advocacy center social workers to include conditions that require:
1. The alleged perpetrator to reside out of the household while the case is pending;
2. The alleged perpetrator to have no contact with their family while the case is pending;
3. The alleged victim to "assist" in the prosecution of the alleged perpetrator.
Assisting in prosecution means the victim must testify against the defendant. It also often means the victim must pursue divorce proceedings against the defendant. If the victim does not want to divorce or testify, advocates will eventually threaten her with failing to protect her children. Then the protectors will threaten removal of the children unless the victim pledges allegiance to the team and assists in convicting the defendant.
'Women are coerced into accepting their cultish indoctrination via the use of threats, intimidation, and the fear of losing their children...Women are ordered to leave their husbands, even in the absence of real domestic violence or abuse. They are ordered to never let the fathers see their children, or DSS will charge the women with neglect.'
Unhealthy Relationship between DSS and Domestic Violence Industry
Family advocacy centers are a relatively new innovation in the "War on Domestic Violence." They are quickly following in the footsteps of child advocacy centers. Many communities are combining the two into one super center. The City of Phoenix Arizona may have been the first to create a strictly domestic violence center upon opening the Family Advocacy Center in August 1999. The Phoenix model is a good indicator of the self fulfilling prophecy behind Family Advocacy Centers, "Build It They Will Come." Statistics of cases from the Phoenix Center show:
Since August 1999, Phoenix has had 16,439 domestic violence "contacts" in which 59% have received "services." Translated, this figure means roughly 9,700 domestic violence cases in five years since the opening of the Phoenix Family Advocacy Center.
How many of those cases resulted in criminal convictions could not be ascertained.
The first known Family Advocacy Center in Texas opened its doors in January of 2002. The City of Irving Family Advocacy Center describes its goal to "bring together those police units and outside agencies that provide support, prosecution, and therapy for victims of domestic violence, child abuse, and sexual assault." To no one's surprise, the Irving Police Department adopted a "Zero Tolerance" stance on domestic violence. Again, not surprisingly, Irving boasts of rising statistical increases in the number of domestic violence cases received since the creation of its Family Advocacy Center. Consistent with Phoenix, the Irving police department web site does not cite statistics regarding actual criminal convictions.
According to the Department of Justice, the federal government will award $20 million in grants in 2004 to communities across the nation to plan and develop family advocacy centers (United States Department of Justice Fact Sheet on The President's Family Justice Center Initiative).
Collin County, Texas is one of the communities applying for the federal grant money. However, a spokesman for the Collin County District Attorney's office indicated the county "would pursue the center even if it did not win the grant. But without financial backing, the project would take longer." (Dallas Morning News, Collin County Edition, March 14, 2004, "Groups Unite To End Domestic Violence").
North Texas is an active participant in the domestic violence industry. Dallas and Denton Counties have instituted specialty family violence courts, in which domestic violence cases are almost the only cases on the docket. Specialized courts allow prosecutors and judges to create a uniform method to streamline cases. The accused faces a tremendous obstacle in a domestic violence court. The court's very existence is silently predicated upon convicting as many defendants as possible. Only convictions can feed the system, as with convictions come fines, community supervision fees, battering intervention program costs, and other methods of pouring money back into the industry. Rising numbers of convictions mean the need for more prosecutors, judges, probation officers, domestic violence counselors, domestic violence programs, and more specialized domestic violence courts. Convictions also support the propaganda generating the movement: "domestic violence is prevalent in your community at an unconscionable rate."
The government substantiates its national cry of a plethora of domestic violence through statistical data. Since there is not a nationwide plethora of domestic violence, the protectors needed assistance in the form of fuzzy math. The fuzzy math problem was easily solved. Simply cite statistics that show the number of domestic violence "contacts" or "services provided" rather than domestic violence convictions. By using "contacts" as the statistical benchmark, domestic violence crusaders are able to point to every police dispatch to a family argument as a "case." These "cases" then secure the numbers needed for federal and state grant money. [Ed. note: This approach is running into problems as potential "victims" are now more afraid of the legal system than their partners.]
Another problem facing the protectors was dealing with the end result of minuscule criminal activity. How would prosecutors secure criminal convictions in court after arresting lovers and family members for arguments and trivial push-shove matches? For this, the protectors and politicians needed to change the law.
The legislature responded with open arms.
Pro-football star, Warren Moon, former quarterback of the Houston Oilers and Minnesota Vikings was charged with domestic violence assault in July 1995. The case captured national attention as his wife, the alleged victim, Felicia Moon did not want to testify or pursue charges.
The prosecution forced Felicia Moon to testify after the Texas Legislature amended and limited the "husband-wife" privilege. Prior to the change in the law, a spouse could elect not to be a witness for the state to testify against the other spouse.
"The couple said they scuffled at their home July 18 after an argument over credit cards provoked Mrs. Moon to throw a 2-pound candle holder at Moon's back. Mrs. Moon ended up with scratches and bruises around her neck and shoulders. Moon said that he was probably responsible for the injuries but that he was trying to calm his wife, not harm her.
Mrs. Moon likewise insisted her husband never intended o hurt her. She had pled with prosecutors to not press charges but was forced to take the stand under a 1995 law eliminating the right to refuse to testify against one's spouse. More than 40 states have eliminated the spousal privilege."
Terri Langford, Associated Press, February 23, 1996.
It took the jury merely 27 minutes to acquit Warren Moon of the assault.
The 1995 amendment to the Texas Code of Criminal Procedure and Rules of Evidence authorize the prosecution to mandate a spouse to testify against the other spouse. The provisions read:
The privilege of a person's spouse not to be called as a witness for the state does not apply in any proceeding in which the person is charged with a crime committed against the person's spouse, a minor child, or a member of the household of either spouse (Tex. Code Crim. Proc. Art. 38.10).
(b) Privilege Not to Testify in Criminal Case
(4) Exceptions: The privilege of a person's spouse not to be called as a witness for the state does not apply:
(A) Certain criminal proceedings.
In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor.
Texas Rules of Evidence 504: Husband - Wife Privileges
In addition to the legislative changes, Texas Appellate Courts have broadened hearsay exceptions, authorizing the prosecution to introduce supposed prior statements of an alleged victim.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." (Tex. Rules. Evid. 803 (2)). In layman's terms, hearsay occurs when a witness testifies regarding what they heard someone else say. Hearsay is inadmissible at trial; however, there are many exceptions to the hearsay rule.
In domestic violence cases, hearsay evidence is often admitted as substantive evidence of guilt. It is typical for courts to allow a police officer to testify to the officer's memory of what the victim supposedly said at the time of the incident. This testimony is admitted even though the victim's alleged statements were not recorded by the officer. Rather, the officer is testifying from notes in the police report made several hours or even days after the arrest. This testimony is admitted as an "excited utterance."
An excited utterance is defined as "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (Texas Rules of Evidence 803 (2)). It is common for a statement to be admitted at trial as an excited utterance even if the incident occurred several hours prior to the officer obtaining the statement from the victim. The hearsay exception of excited utterances also allows the state to play the recorded "911" call from the victim to the jury. Whether an "excited utterance" is admissible is within the discretion of the trial court judge.
A criminal defense attorney will object to hearsay testimony as a violation of the defendant's right to confront their accuser at trial. When a witness at trial is reciting hearsay testimony, the defendant cannot cross-examine or confront the person who actually made the statement. The person who made the statement, called the declarant, is not the witness on the stand. The United States Constitution and state constitutions guarantee the defense the right to confront the accuser at trial. Generally speaking, an objection on the grounds the confrontation clause was violated is overruled by the trial court judge if the state can prove a hearsay exception.
On March 8, 2004, the United States Supreme Court decided the case of Crawford v. Washington, 2004 U.S. Lexis 1838, 72 U.S.L.W. 4229. The court interpreted the Sixth Amendment "Confrontation Clause" of the United States's Constitution. In Crawford, the Court found the confrontation clause was violated when a recorded statement by Crawford's spouse was played for the jury. Crawford's wife did not testify at trial under Washington's "husband-wife" privilege.
The case may not impact traditional hearsay rule exceptions. The Court made a distinction between "testimonial" and "non-testimonial" hearsay. The spouse in Crawford had also been arrested and gave her statement while in police custody. The Court found those circumstances to be testimonial hearsay, inadmissible as a violation of the confrontation clause when the recording was played at trial and she did not testify.
Crawford does not cover "non-testimonial" statements such as when a spouse makes incriminating statements against the alleged battering spouse on a "911" call. Additionally, the Crawford v Washington ruling may not apply to "excited utterance" hearsay statements made by the victim when police first arrive on the scene. That question will be addressed by state appellate courts. With anticipated pressure from the domestic violence Industry, state appellate courts may take a very narrow view of the Crawford v Washington holding, and still allow hearsay statements into evidence. [Ed. note: It is extremely rare for any state appeals court to overturn a domestic violence conviction on any grounds.]
A new strategy is being urged by the state in domestic violence cases, particularly when the alleged victim has recanted or changed her story. The prosecutors are borrowing concepts from child sexual assault cases and attempting to expand them to family violence cases. In many states, prosecutors in child abuse cases can offer expert testimony that a child is suffering from the Child Sexual Abuse Accommodation Syndrome (C.S.A.A.S.). This syndrome is based on the theory that abused children will exhibit certain character traits indicative of abuse.
Prosecutors in adult domestic assault cases are now attempting to show a victim who recants or changes her original story is suffering from Battered Woman's Syndrome. The new prosecutorial trend is to use the syndrome to explain why a victim of domestic violence would recant. The state wants the jury to hear expert testimony explaining that a victim is likely to recant, not due to the absence of violence, but because she is a battered woman.
"Battered Woman Syndrome describes a pattern of psychological and behavioral symptoms found in women living in battering relationships." People v. Romero, 13 Cal Rptr 2d 332, 336 (Cal App 2d Dist. 1992). The nation's leading expert on the syndrome, Dr. Lenore Walker, states in her book The Battered Woman Syndrome that there are four general characteristics of the syndrome:
1. The woman believes that the violence was her fault.
2. The woman has an inability to place the responsibility for the violence elsewhere.
3. The woman fears for her life and/or her children's lives.
4. The woman has an irrational belief that the abuser is omnipresent and omniscient.
Walker found nine typical characteristics of the battered wife:
(1) Has low self-esteem;
(2) Believes all the myths about battering relationships;
(3) Is a traditionalist about the home, strongly believes in family unity and the prescribed feminine sex-role stereotype;
(4) Accepts responsibility for the batterer's actions;
(5) Suffers from guilt, yet denies the terror and anger she feels;
(6) Presents a passive face to the world but has the strength to manipulate her environment enough to prevent further violence and being killed;
(7) Has severe stress reactions, with psycho-physiological complaints;
(8) Uses sex as a way to establish intimacy; and
(9) Believes that no one will be able to help her resolve her predicament except herself.
Slowly the syndrome is appearing in domestic violence courts throughout the country as a means to strengthen the state's case against the accused. The majority of courts are disallowing expert testimony without specific proof the victim in that case suffers from the syndrome. However, it is anticipated this syndrome will soon gain the same status as C.S.A.A.S. and become a routine prosecutorial tactic against defendants in domestic violence cases.
With syndrome evidence, the state replaces its lack of real proof with speculation. Expert testimony stating the wife is a battered woman can be fatal to the falsely accused. A wife testifying for the defendant describing the incident may tell the jury she exaggerated or was the instigator herself. The prosecution in rebuttal will call an expert witness to inform the jury that she is testifying in a manner consistent with being a battered spouse and merely protecting her husband or lover.
A variety of state law cases indicate this prosecutorial trend seeking to introduce evidence the victim belongs to the class of persons known as "Battered Woman's Syndrome" is spreading:
1. Russell v. State, Court of Appeals of Alaska, 2002 Alas. App. LEXIS 237, (2002) (Memorandum decision, not legal precedent);
2. People v. Williams, Court of Appeal of California, Second Appellate District, Division Four, 78 Cal. App. 4th 1118; 93 Cal. Rptr. 2d 356;
3. State v. Yusuf, Appellate Court of Connecticut, 70 Conn. App. 594; 800 A.2d 590; 2002 Conn. App. LEXIS 349 (2002);
4. State v. Niemeyer, Appellate Court of Connecticut, 55 Conn. App. 447; 740 A.2d 416; 1999 Conn. App. LEXIS 408 (1999);
5. Michigan v. Christel, 449 Mich. 578, 537 N.W.2d 194, 1995 Mich. LEXIS 1477;
6. State v. Cummings, Court of Appeals of Ohio, Eighth Appellate District, 2002 Ohio 4178; 2002 Ohio App. LEXIS 4353 (2002);
7. Garcia v. State, NO. 01-99-01068-CR, Court of Appeals of Texas, First District, Houston, 2000 Tex. App. LEXIS 3774, (2000)(Unpublished, not legal precedent).
Defendants have been convicted of domestic violence without any physical evidence introduced against them at trial. In many cases, the argument resulting in the arrest was so slight the alleged victim does not need or seek medical treatment. Frequently, the accused is convicted for intentionally causing "bodily injury" without any testimony from a qualified medical expert. The victim's testimony alone that she felt pain or suffered bodily injury is sufficient for a conviction.
This testimony can be supported by police officer testimony of having observed red marks, scratches, or bleeding, to substantiate the decision to arrest. These claimed injuries may or may not be photographed and preserved for trial. Commonly, a defendant is convicted of causing bodily injury without medical or photographic evidence.
The creation of the family advocacy center is anticipated to follow their child advocacy center predecessors. Medical nurses and employees, whose livelihoods depend upon their contracts with the centers, will give opinions that a "victim" was abused. Failure to give the "right" opinion will mean the contract is not renewed. These opinions from medical "experts" will say the findings are "consistent with" abuse. Of course, "consistent with abuse" is not a true medical diagnosis. This testimony, when attacked by the defense attorney, will reveal the findings given as "consistent with abuse" are just as "inconsistent with abuse."
Instead of physical and medical evidence, the falsely accused are now, and will continue to be convicted upon theories, inferences, and speculation. Prosecutors secure convictions by manipulating the juries' fear of releasing a battering spouse back into the home. This fear will be combined with hearsay, expert witness "syndrome evidence," misleading medical testimony, and the biased opinions of family advocacy investigators. Immediately after arrest, the alleged victim will be hustled to the family advocacy center to be interviewed. At the center, a "forensic interviewer" with the help of state agents will orchestrate a video taped interview. The prosecutor and police detective will be monitoring the process through a two-way mirror in the adjacent room. The interviewer will be in communication and fed questions from the agents through a wireless microphone earpiece. The interviewer will question the alleged victim when she is still highly emotional and upset, prone to exaggeration, and motivated to hurt the accused. Many cases have shown investigators the need to require an alleged victim to add the phrase "I felt pain," to any written or verbal description of the incident. The alleged victim is unaware that "pain" is the legal buzzword authorities must have to prosecute.
1. "911" call from the alleged victim claiming assault and injury;
2. Recorded preservation of the "911" call for trial;
3. A biased police investigation;
4. A zero tolerance policy requiring the police to make an arrest;
5. A biased interviewer requiring the alleged victim to state or write that she felt "pain";
6. A biased medical report by a "nurse" contracted by the domestic violence industry;
7. Syndrome evidence from an "expert" witness if the victim recants or changes her story;
8. Trial testimony through "excited utterance" hearsay and denial of the husband-wife privilege not to testify against their spouse;
9. Conviction on little or no physical evidence.
Domestic violence is defined as "an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself." Tex. Fam. Code § 71.004 (2004)
There is not a Texas penal code statute entitled "Assault Domestic Violence." Despite what offense may have been written on the magistrate's warning or bail bond, the actual offense is typically for "Assault." In Texas, an assault offense can range from a Class C misdemeanor (similar to traffic citation) to a felony. The charge is a Class C misdemeanor if the physical contact is merely regarded as "offensive" or "provocative." In those situations, the suspect usually receives a citation and promises to appear later in a Municipal Court where the maximum punishment is by fine up to $500.
[Ed. note: Colorado law specifically prohibits a defendant from being released at the time of the offense. An arrest is mandatory.]
The vast majority of family violence cases are charged as Class A misdemeanors in which it is alleged the defendant caused "bodily injury" to the victim. In cases in which "serious bodily injury" is alleged, the offense is characterized as a felony. It also will be a felony if "the defendant has been previously convicted of an offense against a member of the defendant's family or household."
An officer must arrest if probable cause exists to believe that bodily injury has occurred.
[Ed. note: In Colorado there is no requirement that bodily injury occurred.]
Texas state law authorizes the police to make an arrest without a warrant of:
"persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to a member of the person's family or household." Tex. Code. Crim. Proc. Art. 14.03 (a) (4).
This legal authorization leads to an automatic arrest or "zero tolerance" policy by many police departments. Once a call for assistance was made to a "911" operator regarding a domestic disturbance, someone is going to jail if there is any evidence, credible or not, of bodily injury.
[Ed. note: In many states, e.g., California, Iowa, South Carolina, you will be required to pay room and board for the time you spend in jail whether you are convicted or not.]
"Bodily Injury means physical pain, illness, or any impairment of physical condition." Tex. Pen. Code § 1.07 (8)
It does not take much to make an allegation of "bodily injury." Bodily injury does not require a trip to the doctor, any medication, or even any sign of injury such as a bruise or red mark. The alleged victims' statement they felt pain is sufficient for an arrest to be made. This is why the police officer will ask the alleged victim if she was "hurt" or felt "pain." If the victim says yes, then the officer has been provided with probable cause the bodily injury provision has been met.
The State will prosecute the case anyway.
Zero tolerance means the police will make an arrest without exception after a family argument if they have probable cause to believe any bodily injury has occurred.
A "No Drop Policy" means the State will prosecute all domestic violence cases without exception, even if the victim wants the case dismissed and has filed an affidavit of non-prosecution.
The magistrate (judge) can hold the arrested person in jail for four (4) hours after making bail, if there is probable cause to believe any violence would continue if the person were immediately released.
This period can be extended up to forty -eight hours if authorized in writing by a magistrate. If the extended time period exceeds twenty four (24) hours, the magistrate must make a finding the violence would be continued if the person were released and the person has previously been arrested within ten (10) years on more than one occasion for family violence or for any other offense involving the use or exhibition of a deadly weapon (Tex. Code Crim. Proc. art. 17.291 (2004)).
After an arrest the accused will be brought before the magistrate for the arraignment. At this hearing, the magistrate will read the accused their legal rights, set bail, and usually issue an emergency protective order (Tex. Code Crim. Proc. art. 15.17).
An emergency protective order is issued against the accused by the magistrate at the arraignment hearing. The protective order may (Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection):
Evict the accused from their residence for sixty (60) days or more;
Prohibit the accused from possessing or being in the vicinity of a firearm, weapon, or ammunition;
Prohibit the accused from communicating directly with a person protected by the order or a member of the family or household in a threatening or harassing manner;
Going to or near the residence, place of employment, or business of a member of the family or household or of the person protected under the order; or the residence, child care facility, or school where a child protected under the order resides or attends.
Violation of the emergency protective order results in a separate criminal offense punishable by a fine of as much as $4,000, or by confinement in jail for as long as one year, or both. An act that results in domestic violence or a stalking charge may be prosecuted as a separate misdemeanor or felony offense. If the act is prosecuted as a separate felony offense, it is punishable by confinement in prison for at least two years (Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection).
The protective order may evict the accused from their residence for sixty (60) days (Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection).
[Ed. note: Simple answer, yes. In Colorado, a hearing must supposedly be held within 14 days, at which time the order typically will be made permanent, as in the rest of your life, and no application for reconsideration can be made for four (4) years.]
[Ed. note: Yes. In Colorado this is the default.]
In Texas, an emergency protective order by itself cannot prohibit the arrested person from making non-threatening communication or contact with the protected person. However, nothing prohibits the magistrate from making an additional "no contact" condition of bail (Art. 17.40. Tex. Code Crim. Proc. Conditions Related to Victim or Community Safety).
[Ed. note: In Colorado the restraining order in effect prohibits direct or indirect contact with the "victim" or any other relation to her, or any of her friends.]
The court that issued the emergency protective order can modify all or part of the order after each party has received notice and a hearing has been held. In order to change or modify the order, the court must find (Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection):
(1) the order as originally issued is unworkable;
(2) the modification will not place the victim of the offense at greater risk than did the original order; and
(3) the modification will not in any way endanger a person protected under the order.
Only the Judge who issued the emergency order can change it or set it aside. No other person can give permission to anyone to ignore or violate the order (Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection).
[Ed. note: Such orders work only one way. You are restrained, she can do anything she wants.]
An emergency protective order is in effect for not less than thirty-one (31) days and not more than sixty-one (61) days (Art. 17.292. Magistrate's Order for Emergency Protection).
A final protective order issued by a District Court may be in effect for up to two (2) years (Tex. Fam. Code § 85.025 (2004)).
[Ed. note: In Colorado the mandatory restraining order issued in criminal cases of DV remains in effect until the case is dismissed, the defendant acquitted, the sentence, including probation, is completed, or the case is reversed on appeal. A civil restraining order for domestic abuse becomes permanent (lifetime) after the temporary orders hearing.]
No! Under 18 U.S.C. § 922(g)(8) (the Lautenberg amendment) it is a Federal felony to be in possession of a weapon or ammunition while under a restraining order involving domestic violence or abuse, and that includes military and peace officers.
Under Texas law, after arrest a magistrate will usually issue an emergency protective order, which can prohibit the arrested person from possessing a firearm, unless the person is a peace officer (Art. 17.292. Magistrate's Order for Emergency Protection).
The magistrate or judge assigned the case can make additional bond conditions, which prohibit the accused from possessing a firearm while the case is pending. However, Federal law supersedes state law.
Under Texas law the magistrate can suspend a license to carry a concealed handgun (Art. 17.292. Tex. Code Crim. Proc. Magistrate's Order for Emergency Protection) but that has been superseded by Federal law 18 U.S.C. § 922(g)(8 and 9) and you cannot purchase, acquire, or be in possession of firearms or other dangerous weapons, e.g., swords, grenades, explosives, ammunition, etc. This is a felony with a mandatory minimum of 5 years in prison if convicted.
If you have a gun collection, swords, etc., the Bureau of Alcohol, Firearms, and Tobacco (BATF) approved method of storage after issuance of a restraining order or being charged with domestic violence is with an attorney, with the police or sheriff, or with an approved firearms dealer.
A magistrate can require any condition to bail that he or she finds to be reasonable as long as it is related to the safety of the victim or the community (Art. 17.40. Tex. Code Crim. Proc. Conditions Related to Victim or Community Safety).
In most cases this will mean there is to be no contact between the alleged victim and the defendant. Once the case has been assigned to a court, that judge may order additional conditions of bond. A judge in Collin County, Texas, has made it a practice to require the accused to attend a weekly batterer intervention counseling program for eighteen (18) weeks even though there has been no conviction. You may also be required to wear an electronic location-monitoring bracelet, attend alcohol or anger management classes, and etc., all before your case goes to trial.
The prosecutor must notify a family law court of an arrest for family violence if the family law court had previously entered temporary orders (Art. 42.23. Notification of Court of Family Violence Conviction).
This affidavit is a legal document from the victim informing the authorities prosecution is not desired and requesting the case to be dropped.
The charging decision belongs to the government. In all likelihood, the State will prosecute the case anyway.
Sometimes the alleged victim wants to meet with the prosecutor to change her story and get the charge dismissed.
This procedure needs to be skillfully handled by an attorney. If your spouse or girlfriend meets with either the prosecutor or police investigator alone, she will be threatened with arrest and prosecution if she wants to change the original story. The prosecutor will threaten to charge her with making a false statement to a police officer and/or perjury.
Yes, even with a "no drop" or "zero tolerance" policy, a good attorney can eventually influence the prosecutor to drop the case. Prosecutors, despite great overtures about caring for the victim and similar altruistic posturing, care very much about winning. The only thing that matters to a prosecutor is winning the case and advancing their career. The alleged victims are just numbers whose faces and situations will be forgotten by the prosecutor with the start of the next case.
The defense motivates the prosecutor to dismiss. Prosecutors hate to lose cases. If confronted with a case that cannot be won they will try to deviate from office policy to dismiss, "just this one time."
In many cases evidence of injury is slight, or no physical evidence of injury may exist at all. The State will prosecute the case anyway.
The State can get a conviction solely on the testimony of the alleged victim without any physical evidence of bodily injury.
The State will subpoena her for trial. If she does not appear the judge will issue a writ of attachment (arrest warrant). The Sheriff will arrest your spouse or girlfriend and bring her to the courthouse. If she cannot be located, the judge will grant the State's motion for a continuance. If she cannot be found, even after a continuance, the State will prosecute the case and present hearsay evidence of what your accuser said:
1. On the 911 dispatch tape;
2. To the investigating police officers;
3. By introducing any written or recorded statements of your spouse or girlfriend. Written or recorded statements may now be inadmissible after the United States Supreme Court decision in Crawford v. Washington, 2004 U.S. Lexis 1838, 72 U.S.L.W. 4229.
These cases are frequently won at trial by skilled criminal defense attorneys. In many situations, the argument involved both parties and any physical assault was actually mutual combat. Self-defense is a defense to prosecution under Texas and all states law.
[Ed. note: The experience of the Equal Justice Foundation is that virtually all DV cases that go to a jury trial with a competent criminal defense attorney are won by the defendant. Conversely, a bench trial to a judge by a man is simply a long slow way of pleading guilty.]
A conviction, probated sentence, deferred sentence, deferred adjudication, or any form of plea bargain will result in a permanent criminal record.
A plea of guilty (a plea bargain is a guilty plea), or no contest to the charge or a finding of guilt, will result in a criminal record even if the defendant is placed on probation or deferred adjudication and successfully completes the community supervision period.
In Texas there are only two ways to remove a domestic violence arrest record. An attorney can have the records of arrest expunged (destroyed) if the state never files a case or if the case is won at trial.
There is no method by law to expunge, destroy, or seal domestic violence convictions, probations, or deferred adjudications (Tex. Govt. Code § 411.081).
[Ed note: In extremely rare cases it is possible to get a pardon from the state's governor that will remove the conviction from the individual's record. Usually a pardon can only be requested after the sentence is completed.]
A person charged with domestic violence who is not a United States citizen can face serious penalties. Deportation is required by federal law even if the case ends in probation or deferred adjudication. Re-entry into the United States will probably be denied after arrest, even if the case has not gone to trial.
The records will be available for anyone with access at the courthouse or over the Internet. Even a deferred adjudication case will be discoverable to any person. Present or future employers will have access to domestic violence records.
[Ed. note: Many landlords now run a background check on prospective renters and deny a lease to anyone with a DV conviction.]
Deferred sentences or adjudication for domestic violence cannot be expunged or have the records sealed. It will be a permanent record even though a formal conviction is not entered (Tex. Govt. Code § 411.081).
[Ed. note: It is a common lie propagated by prosecutors and judges that if the defendant accepts a plea bargain the record will be "sealed" after the probationary period is completed. That is never true in any state.]
No! Under 18 U.S.C. § 922(g)(9) (the Lautenberg amendment) anyone "who has been convicted in any court of a misdemeanor crime of domestic violence" can never own, possess, or be in the vicinity of a weapon or ammunition again.
The federal law has no time limitation to it. The permanent loss of the right to possess a firearm, weapon, or ammunition applies whether the case ends in a conviction, probation, or deferred adjudication and that includes any form of plea bargain.
No! And you will lose any existing security clearance you hold.
A person on community supervision for domestic violence will be required to attend a year long Battering Intervention Prevention Program counseling course. The average defendant is required to attend once a week for a fifty-two (52) week period. Failure to attend, or missing too many meetings will result in revocation of the community supervision and placement in jail (Tex. Code Crim. Proc. art. 42.141 (2004))
The defendant does not get to select a counseling program. This program will be set up in advance and the defendant will be required to attend (Tex. Code Crim. Proc. art. 42.141 (2004))
The defendant is responsible for all costs of counseling and probation. Typical conditions of Community Supervision include (Tex. Code Crim. Proc. art. 42.14):
Victim Impact Panels;
Counseling for Victim;
Contributions to Women's Domestic Violence Shelters;
Weekly Batterers Intervention Prevention Program Counseling;
Alcohol Evaluation and Treatment;
Anger Management Counseling;
Monthly Probation Fees of $50 per Month;
No Contact With Victim;
Random Urinalysis Testing;
Monthly Reporting To Probation Officer;
Electronic Location Monitoring Bracelet;
Other Conditions the Judge Finds to Be Reasonable.
If the defendant enters a plea bargain of any kind, or is found guilty, the trial court must make an affirmative finding of family violence and enter the affirmative finding in the judgment (Tex. Code Crim. Proc. art. 42.013 (2004)).
A plea of either guilty or no contest will result in a family violence finding even if the sentence is deferred.
A finding of family violence can have drastic consequences for a parent facing a child custody or modification case. There probably will be a presumption that the accused is not a fit parent.
The trial court judge must notify the family court judge if the defendant was found guilty, or pled guilty or no contest to a domestic violence offense. This must be done even if the defendant is placed on deferred adjudication or given a deferred sentence (Art. 42.23. Tex. Code Crim. Proc. Notification of Court of Family Violence Conviction).
A family court judge may enter a final protective order against a person found guilty or pled guilty or no contest to a domestic violence offense. This can be done even if the defendant is placed on deferred adjudication (Tex. Fam. Code § 85.022 Requirements of Order Applying to Person Who Committed Family Violence)
In Texas, the accused faces up to a $4,000 fine for a conviction, whether by a plea or a finding of guilt at trial. The accused may be incarcerated for up to one year in the county jail upon conviction, whether by a plea or a finding of guilt at trial.
If the accused has a prior conviction for family violence, a second charge will be prosecuted as a third degree felony offense, carrying a range of punishment of not less than two (2) years or more than ten (10) years in the penitentiary and a fine up to $10,000 (Tex. Pen. Code. § 12.21; § 12.34)
If informed that surgery is needed to remove a tumor, no patient would go home and start rummaging through kitchen knives to commence a self-service operation. Obviously this procedure is best left to the skilled hands of a skilled surgeon. The same principle exists when a family desires to have a criminal case dismissed. This is not the time to do it yourself.
The criminal justice system is a great mystery to those who are not familiar with its inner sanctum. There is a right way and wrong way to get things accomplished. The family finding itself facing an accusation does not understand how to approach the system. Common sense and justice, thought to be inherent in the system, does not exist. Rather the criminal justice system is more concerned with power, perpetuation of the appearance of justice, and statistics.
Media and political attention concerning domestic violence may lead the naive to think the system is concerned with the well being of families. That is incorrect! The system does not care one iota about the families it captures in its web. A family in recovery, healing from domestic conflicts presumes the protectors would be pleased to discover prosecution is no longer desired. This is certainly the public persona exemplified by the protectors. Referring to the Smith County, Texas Family Advocacy Center, Executive Director Carol Langston said: "I would love for the center not to have to be here 20 or 40 years from now." (Laura Krantz, Staff Writer, March 20, 2004, Tyler Morning Telegraph). Baloney.
In fact the exact opposite is true. The protectors want as many cases as possible and are not concerned with what's best for the family. The system is concerned with what's best for itself, growth and expansion. Those goals are not met by dropping cases.
"This is crazy. We had an argument that got out of control. Everything is fine now. My spouse does not want to prosecute. If I talk to them and explain, it will go away." This is the initial feeling of a family who does not want any additional complications, such as a frivolous prosecution in their lives. The family may be experiencing problems and difficulties, but it is not a matter that requires governmental intervention. Husband and wife desire to work out their issues on their own, their way. All that is needed now is to make an appointment to speak to the prosecutor and have the State drop the case.
Nothing an accused or alleged victim can say or do will convince the protectors (family advocacy prosecutor, family advocacy center caseworker, police detective, victim's advocate) that the abuse did not occur. Nothing!
The effects on an individual family means nothing to these people. The family is a mere meal ticket, another in a long line of families the system will victimize and probably destroy. Informing the protectors that the family is fine, has made up, is working out their problems, and does not need prosecution will fall on deaf ears. The system does not care. The protectors need bodies to meet necessary quotas to continue receiving grant money and expand.
It is only when the protectors recognize they will lose the case, possibly in an embarrassing fashion, that a dismissal will be considered. The state must be motivated through its own fear of losing face with a jury before it will consider the needs of the family.
In most cases an experienced attorney will not allow you to talk to the prosecutor or the police or give a statement. The attorney knows whatever you say will be used against you.
The violation of these rules by unaware family members is commonplace. A family desiring to put the incident behind them believes sanity will intervene at some point, and decide to contact the police and prosecution. The alleged victim and suspect will give written and videotaped statements. In addition, they will talk on the phone or offices of detectives and prosecutors without knowing they are being recorded.
The protectors are not interested in conducting a fair and thorough investigation. The accused and alleged victim who walk into a family advocacy center without an experienced attorney to "tell their side of things" or "clear this all up" is doing exactly what the authorities want. The protectors know what they are doing. At this meeting they will obtain real or implied admissions and circumstances presenting opportunity for battering coming from the accused's own mouth.
An attorney can place you in a position so that you are "cooperating" with the investigation without incriminating yourself. The attorney can assist you in making the decision of whether to meet with the authorities. In most situations, the attorney knows the charge decision has already been made and that a meeting will not change the forthcoming prosecution.
Very few attorneys specialize in fighting domestic violence allegations. Many lawyers represent clients with assault charges. These lawyers will handle such cases in addition to a general criminal defense practice. Domestic cases are different from the typical criminal charge and must be handled differently!
Consider the following in hiring the right attorney:
A domestic violence allegation can only be defended successfully by an attorney with significant trial experience and specifically with domestic assault cases. The accused is not in a position to have inexperienced counsel.
Unfortunately, the police, family advocacy center personnel, and the public will consider you to be guilty. For one charged with family violence, it is important to act immediately. The accused must prove their innocence! An attorney who does not begin an all out defense at the very beginning is wasting valuable time and compromising your future.
There is no "home field advantage" in a domestic violence case. Do not shy away from a good attorney who is located in a different county from where you are being charged. Judges are elected politicians. Judges do not get re-elected if the public views them as soft on domestic violence. It makes no difference how well a local attorney knows the judge; it will not be of any assistance with this type of charge. An "outsider" who does not care about making the judge or prosecutor happy, but just wants to defend you and win, is much better than a local name.
A false allegation of domestic violence must be beaten through either a dismissal or an acquittal (not guilty finding) at a jury trial. There is no victory in a plea bargain with these cases. The innocent person's life will be drastically degraded by pleading guilty. At no time in dealing with a false allegation should there ever be an admission of guilt. A plea bargain may seem an easy way out, but it will ruin the life of the falsely accused forever.
A deferred adjudication or sentence, successfully served will not result in a conviction for the defendant. However, the lack of a formal conviction is meaningless. Whether the accused receives deferred, straight probation, or is released from jail, he will still have a criminal record and a finding of family violence. These records are public and the nature of the charges can and will be made known to anyone. Family violence findings may result in the loss of employment and the inability to secure future meaningful employment especially if you require a security clearance or carry a weapon in your line of work.
Community supervision for the defendant will require battering intervention program counseling. In this setting, the offender is required to admit that not only the actual charge is true, but also any extraneous charges or allegations made in police or advocacy center reports are true. It matters not that the charge is exaggerated, untrue, or only partially true. It matters not that the extraneous other charges did not occur. Failure to admit that everything alleged is true will result in a revocation of community supervision and incarceration.
The prosecution will tempt the inexperienced defense attorney with offers of deferred adjudication and "counseling" instead of incarceration. Do not fall for this pretense. Even aside from the lifetime penalties involved, it can be difficult to complete probation as the rules keep changing. Making community supervision more difficult for family violence offenders is a legislative reality. Politicians continue to enact new laws, that offer the appearance of fighting domestic violence. No lobby group exists for persons charged with domestic abuse and the legislature can make the community supervision process intolerable without significant opposition.
A finding of family violence will often mean that you will lose your children.
If an attorney says to wait and see if you are formally charged; walk away immediately; the best time to get a dismissal is before a formal charge.
Many times the best method of winning a false allegation case is to defeat it before it officially starts. Evidence can be collected pre-charge by the defense that does not have to meet the standards of admissible evidence at trial. The defense can produce typically inadmissible evidence such as polygraph examination results, character letters, and other forms of hearsay. The defense can also offer expert-witness reports and affidavits explaining the unreliability and tainted evidence procured by the prosecution.
Here are some common examples of evidence that can be assessed for a charge dismissal packet:
A. Your criminal history
B. Honorable Discharge
C. Education records
D. Polygraph results
E. Polygraph report
F. Psychological and personality testing of client
G. A factual summary of the defense version of the case
H. Sworn statements that the alleged victim has made false accusations in the past
I. Legal research and case law to show reason to not indict
J. Good character letters
K. Availability of defendant and others to testify if requested.
L. Recantations from alleged victims when available.
M. Expert-witness testimony and affidavits regarding tainted evidence comprising the States' case.
N. Test results showing the accused does not have the psychological characteristics of a batterer.
If the prosecutor accepts the charge, then the case must be prepared for trial. It is rare for the state to dismiss a case once they have formally filed an assault charge. Your attorney must be prepared to try these specialized types of cases to a jury.
[Ed. note: A bench trial, or trial to a judge is simply a long slow way to plead guilty.]
Selection of the jury is critical for domestic violence cases.
[Ed. note: Jury selection is an art form and it is here where a competent and experienced criminal defense attorney really earns his pay.]
The potential jurors come into the case with heavy emotional attachments regarding allegations of abuse to a spouse or intimate partner. Strong emotions held by jurors about domestic violence must be overcome and their attention placed on being fair and acknowledging that false allegations are made. The jury panel must understand the serious potential for injustice a false allegation can cause.
In addition, the defense attorney must educate the jury panel on how false allegations could be made. The panel needs to understand how an alleged victim can make false and exaggerated statements and what motivation exists to do so.
The attorney must be well skilled in cross-examination to show deficiencies in the state's investigation through a preconceived assumption of guilt shared amongst the advocacy team. Cross-examination is a skill obtainable only through years of trial practice itself.
The attorney must also be prepared to offer strong defense witnesses. Contrary to many criminal cases, the accused must testify in a domestic violence case if the defense wants an acquittal. Until the jury hears it straight from the accused's mouth that the abuse did not occur, it will convict.
True domestic violence is criminal and has, fortunately rarely, resulted in tragic consequences. However, the cure has now become more abhorrent than the disease. Governmental overkill has created the Domestic Violence Industry. The future is here as "Family Advocacy Centers" are springing up across the nation with hands held out competing for federal funding. A needless bureaucratic machine defining innocent family members as batterers is the inevitable outcome of "zero tolerance" and "no drop" policies.
Further, the protectors have assimilated into a system of arrogance and self-righteousness believing they, and they alone, know what is best for the family. The protectors protect only themselves, and do not seek to do justice, but to expand and grow at the expense of those truly victimized, the individual family they claim to assist. Americans now face a well funded and driven system intent upon finding domestic violence for every minor and insignificant transgression. Every lover's quarrel has now become "domestic violence" in this brave new world.
Instead of tackling real and legitimate domestic violence, the industry is content, fat, and happy with prosecution of the minutia.
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| Next Due Process by Charles Corry, Ph.D. and Richard Davis, A.L.M. |
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Last modified 7/28/12