27 January 2008

Domestic Assaults & Testimony

As you will all recall, I started a discussion about witnesses asserting the 5th Amendment for reasons which are not valid by putting forth a domestic battery situation. Why did I choose this? Because this is the place, by far, wherein I've seen the most people decide they don't want the charge to go forward and refuse to testify. This was meant to set up a discussion of 5th Amendment issues in a scenario with which every trial lawyer is familiar with and which lay persons could easily understand. I avoided all the peripheral issues because I was discussing the 5th Amendment. Somehow, this morphed into me, and prosecutors in general, being insensitive to issues and reasons that a woman might want to withdraw the domestic abuse charges. Let me try to set the record straight.

The General Assembly of Virginia has left us with statutes seeming to evince differing intents: Va. Code sec. 19.2-81.3, requiring arrests, and 18.2-57.3, allowing a non-conviction resolution.

Apparently concerned that law enforcement didn't give these cases sufficient consideration, the General Assembly passed a law in 1991 requiring arrests:
B. A law-enforcement officer having probable cause to believe that a violation of § 18.2-57.2 or § 16.1-253.2 has occurred shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of family and household members, (iii) prior complaints of family abuse by the allegedly abusing person involving the family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
The shall arrest language has left the officers/deputies few options outside arrest. Some police forces I have known have even adopted a 1 response = 1 arrest policy, bringing a lot of cases to court with little evidence (although none I work with now do this). Even in law enforcement agencies where this policy has not been adopted the deputy is going to make an arrest if there is any indicia of a physical altercation. Quite often these arrests are required and will be made over the protests of the victim (if I only had a dime for each time an officer has told me "She told me X, Y, and Z, but refused to talk to me anymore when she realized I was going to arrest John").

What happens when things get to court? Well, sorry to disappoint all of you who think that prosecutors are bloodthirsty, but I'd say most cases get handled by deferment after which the charge is dismissed, per 18.2-57.3:
When a person who is no younger than 18 years of age or who is considered an adult at the time of the proceeding and who has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to assault and battery against a family or household member or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to a violation of § 18.2-57.2, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on local community-based probation upon terms and conditions.
Why would the General Assembly give us seemingly contradictory statutes? Well, my personal reading on this is that the General Assembly is requiring that no chances be taken when police are called to the scene and that the wheat is supposed to be threshed from the chaff at a later date, in court, when things have cooled down.

While it may not hold for all of Virginia, here are fairly typical outcomes as I've experienced them. Most of the time the first time offender is allowed deferment, unless there are aggravating factors. Among these factors would be the deputy/officer assessment, prior record, witness cooperation, &cetera; I won't try to make an exhaustive list because humans are infinitely creative and sure as I'd list everything I'd think of something else will pop up. A second offender will be convicted as a first time offender and get probation or a short jail sentence. Even then, a prosecutor will often work with the defense counsel to allow the defendant work release or weekends, so he can keep supporting the family (often a determining factor in subsequent offenses will be how long it has been since the prior). A third offender gets convicted of a second offense and, unless there are mitigating factors, the gloves tend to come off at this point. A fourth offender gets a felony charge of Domestic Assault, 3d or subsequent.

Now, to address the wrongness of a prosecutor's attempt to make a woman in a domestic abuse case testify. Have I done this? Yes, every prosecutor in the world has dealt with unhappy, uncooperative witnesses. Do I like to do this? No. What kind of sadist wants to force a woman who has been beaten by that guy to relive it, much less to do so against her will? Unless the case is very bad, an unwilling witness usually means a lower offer and that is usually snapped up by the defense (at least after I make it clear that I will call her if need be). However, there are the occasions when the case is too awful to deal or Scumbag, with a snicker and snide remark, will turn down any offer with supreme confidence that "she hasn't got the guts to testify against me." In these cases I have to call her and I have to try to provide the backbone she lacks.

**Here, I'm going to lapse into a cleaned-up version of a semi-canned explanation I've developed over the last year plus I've been a prosecutor; it isn't perfect, but it seems to get the idea across to members of the general public.**

I'm not a surgeon with a scalpel; I'm a guy with a hammer playing whack-a-mole. I don't have perfect individually crafted, subtle solutions; I can't solve many problems; I can only punish those who did what our society has deemed so wrong as to be illegal and (hopefully), through that punishment, deter others from doing the same. My three blunt instruments are fines, incarceration, and suspended time/probation (and that's really one tool: conviction). These do not often cure people of what ails them nor do they solve society's ills (at least not in the short term). Nevertheless, these are the tools I have in hand and I will wield them to the best of my ability.

With this in mind, if I think the guy over there is a scumbag who beats on women and children, who needs to see the inside of the jail, and needs to be on supervised probation so we can try to keep him from doing it in the future, I'm going to call the victim. She's scared or worried about the paycheck or so submissive she'd never freely turn on him (neighbors called in the beating). I get it. I don't want to call her. I have to call her to convict Scumbag.

I strongly warn her beforehand that if she lies on the stand perjury is against the law. I call her. She takes the 5th. I grant use immunity. She tells a story which contradicts the report she gave the deputies. The case is lost. I immediately, in court, in front of God, the Judge and the gallery tell a deputy to arrest her for perjury.

Is this an optimal outcome? No. I don't want her; I want Scumbag. Then why arrest her? Two reasons. First, she has broken the law and if I don't prosecute her, or anyone else who does what she's done, word will get around. Those of you who are defense attorneys can testify better than most prosecutors about how reputations, rumors,and stories spread among people likely to be in court. Next thing I know the number of women who come to court and do this grows and becomes an endemic problem.

Second, I want Dirtbag, Dipwad, and Slimeball and their women (all in the gallery) to see it. I already know DD&S could care less about the women they are in court for beating. I want DD&S to worry that their women might not be willing to take a felony fall for them. I want the women to think about the consequences of not telling the truth on the stand. With my imprecise tools, I hope to change the atmosphere in the courtroom so that more just outcomes occur.

AND, before everyone starts berating me in the comments, I ask one thing. When you criticize me, please suggest a better solution to the courtroom situation using the tools I have available.


Anonymous said...

Is lying to police a crime in your state? It would seem that the perfect defense to perjury charges would be that the wife says she lied to the police and told the truth on the stand. Also how do you get around spousal privelege not to testify?

Ken Lammers said...

Yes, giving a false report to a police officer is a crime. If I really wanted to cover my bases, I'd charge her with both and let a jury figure out which she is guilty of.

The great majority of the time spousal privilege does not come into play. Of course it will vary by State, but domestic abuse laws usually extend to, and seem most often to be applied to, couples that currently or recently lived together and/or have a child in common.

Anonymous said...

Ok now here is a question, if you charged her with both, then wouldn't you be charging her with a crime you know she did not commit? I mean if she is guilty of one or the other then that means that she is innocent of the other? Is that not prosecutorial misconduct to charge someone with a crime you know that was not committed?

Anonymous said...


In your experience, have you ever seen a lying victim actually successfully prosecuted based on the scenario you have laid out?

Ken Lammers said...


Yes. I've not had to do one of these prosecutions myself because I seldom work in the domestic court. However, I saw a number of them when I was defense counsel. The woman always pled.

I stood in a Richmond area courtroom one day and watched as a prosecutor called up 5 cases in a row and, after the female victim refused to testify (none invoked the 5th, they just refused), had each one of the women arrested for filing a false police report. I always wondered how those turned out since they simply refused to testify and didn't give contradictory testimony.

Rick Horowitz said...

Wow, I actually started to think you were okay until I read this post.

This is the same kind of thinking that is destroying our society generally, creating increased gang problems and increased crime. Talk about a recipe for PTSD.

If the only tool you had for stopping shoplifting was a machine gun, would you use it? Of course not.

So, recognizing that the tools you have for dealing with the problems you're trying to deal with just can't work without doing more damage, why do you not recognize that the best response is to only use the tools when the alleged victim has come far enough for it?

Or do you really think that damaging 999 women for life makes up for the one you might fail to help by not being just like her abuser?

zerin hood said...

The Hammer hasn't answered, but I'll give you mine.
1) If a machine gun is the only tool I have and the law allows it, I would use it, even on shoplifters (but I might give them one warning burst first) if the option is do nothing and let them violate my rights, or someone else's rights.
2)What makes you think the 999 are damaged for life? On the other hand, Lammers could be saving the 999 women from continued abuse and death at the hands of their abusers. Of course, every case has to be taken according to its own merits and not under some blanket policy that is inappropriate to the specific circumstances.

Donte Russo said...

I have seen many times when both the woman and man contributed to a minor altercation usually when they were drinking, most of the time nether one really intend to harm the other and subsequently they are Branded as a "Abuser" I don to like this law I disagree with it and I have seen it abused in VA many many times. I would like to ad I once served as a police officer. The law leaves little discretion to the officer(s) and this is why there are so many cases.