Domestic Violence Charges – Blog 17:  Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Only 6% of state criminal cases go to jury trial.  That means 94% are disposed of some other way.  Those could be plea bargains or dismissals.  Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough.  And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see.  But what we don’t brag about much are our plea-bargains.  Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much.  Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial.  It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial.  They teach us in law school to start with the jury charge and go backwards.  And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty.  It could trigger immigration, professional licensing, or other consequences we cannot accept.  So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice.  Some folks don’t have the stomach for trial.  Trial in a domestic violence case normally takes a day or two but can take a week or more.  I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media.  I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility.  It’s important for folks to remember this.  If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again.  This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes.  So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another.  It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

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Domestic Violence Charges – Blog 16:  Areas of Defense Focus

December 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

It’s tough to quantify or discuss all possible defenses to all possible cases in one neat blog.  There are some cornerstones, though, and areas which any defense lawyer should look for acquittals.

You can read my index to other domestic violence charge blogs here.

A Note on Legal & Factual Sufficiency

It’s obvious I wasn’t watching any given couple’s quarrel which lead to someone getting arrested.  I couldn’t be a lawyer in those cases because I’d be a witness.  I don’t evaluate cases for what I personally think happened, rather, I evaluate them for what I think a jury may or may not believe.

What I evaluate to prepare for a trial, then, is what we call legal sufficiency and factual sufficiency.  Just remember when I discuss possible outcomes below – what I mean to say is “will the evidence be enough to show….”

Legal and factual sufficiency are confusing appellate terms which I’m evaluating for when I hear a case.  Maybe I’ll blog about that one day on it’s own if I want to put everyone to sleep… but not today.

What you do need to know about legal and factual sufficiency for the purposes of this blog is this:  A judge cannot allow a jury to deliberate at all if the evidence is legally and/or factually insufficient.  If the evidence shows the crime was committed by an apple and it’s an orange charged with the offense – then the judge acquits the orange before a jury can deliberate.

If there is Evidence Assault Occurred, Can the Prosecution Get it to a Jury?

The Texas Rules of Evidence dictate what a jury can hear.  If a jury isn’t allowed to hear something under the rules – then it could render the evidence insufficient and require acquittal.

Example #1:  Complaining witness told a neighbor who told their hairdresser they got choked by their spouse.  Can the hairdresser come in and prove-up the assault for the prosecution?

  • No.  The rules of evidence (specifically the hearsay rule) would prevent this testimony.

Example #2:  Neighbor routinely sees police coming to the house next door and sees the defendant yelling at children on Halloween.  Can the neighbor come to court to prove-up assault because “everyone knows he beats her?”

  • No.  The rules of evidence prohibit speculation of this sort.

The Confrontation Clause

Another topic which could easily take three or four lectures of a law school course in constitutional law is the confrontation clause.  Any lawyer defending domestic abuse cases has to be extremely up-to-date on these issues no differently than a physician has to keep up with the latest medical research on studies and pharmaceuticals.

The confrontation clause under the 6th Amendment of the US Constitution normally requires the accuser themselves to come into court and testify to secure a conviction.  But this isn’t always the case and the exceptions are constantly changing.

If the Jury Can Hear Evidence of an Assault, Can We Persuade the Jury Otherwise?

If the evidence might be legally and factually sufficient to sustain a conviction then we can’t count on a judge throwing it out before it gets to a jury.  In these cases we have to get to work proving the accusers account is incomplete, exaggerated, or otherwise wrong.

This is where a lawyer has to get into the dirt of a case knuckle-deep.  Who said what to one another, who was standing where, who was holding what object, who is on what medications, who consumed alcoholic beverages, who has a history of of doing what… etc, etc.

Do we have reason to believe the accuser exaggerates?  Do they have a history of exaggerating such claims or bringing false claims?  Does the complaining witness have psychological disorders such as manic episodes which might contribute to them giving a falsified account to police?

Are There Any Applicable Defenses?

I’ve blogged about the main defenses to assault – which apply regardless whether the complaining witness is a family member or in a dating relationship or not.

Can we show the jury this was self defense?  Who hit first and can we prove it?  Did they place the other person in fear of imminent bodily injury?  If so – how?  What does the physical evidence show?

Did the accuser “consent” to or otherwise invite the assault by their conduct?  Did they stand in a doorway and refuse to allow the other to leave?  Did they somehow dare the other one to hit them?

Each Case is Unique

Again — every case which comes in is unique.  But the good news for defending cases like these is they are rarely cut and dried.  The police have the difficult job of showing up to a scene and keeping the peace.

It often results in someone going to jail for no other reason than the police don’t know the couple — they just don’t want to come back later the same evening and pick up a dead body.

The legal system is designed for police to make an arrest with a lower threshold of evidence for exactly this reason — probable cause.  We have plenty of time after the fact to put the pieces together and mount an aggressive defense.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

 

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Domestic Violence Charges – Blog 15:  Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted?

December 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

This most common question I get in domestic violence cases is this:  if the victim doesn’t want to prosecute then won’t the case go away?

The answer is the “victim” or “complaining witness” has the legal power of a witness in a criminal proceeding and nothing more.  The prosecuting attorney makes the decision whether to go forward with a family violence charge.  Will the prosecuting attorney go along with the “victim’s” request to dismiss charges?  This is the million-dollar question which is different in every case.

Some District or County Attorney Offices are policy-driven to reject affidavits of non-prosecution and others take them on a case by case basis and will occasionally not pursue assault charges.

District Attorneys, County Attorneys and occasionally city prosecutors who review assault cases and affidavits of non-prosecution are public servants.  In theory, you would think they would be sensitive to pleasing the person they purport to protect.  Again, sometimes they do listen to victims of domestic abuse and sometimes they don’t.

Here is an index to the other blogs on domestic violence in this series.

Affidavits of Non-Prosecution

An affidavit of non-prosecution (“ANP”) is a statement made, typically under oath, where the complaining witness makes a statement to the effect they do not wish the case to proceed.  An ANP has no real legal power and it’s a very common misconception that it does carry with it a requirement the police or prosecutors obey it.

Why Police or Prosecutors Might Not Care About an Affidavit of Non-Prosecution?

I’ve blogged a lot about the Duluth Model in domestic violence and the “cycle of violence” along with the “power and control wheel.”  Those prevailing thoughts in law enforcement hold the abuser is all-powerful and has taken emotional control over the victim.

When many police and/or prosecutors see an ANP from a victim – it only confirms to them these concepts and theories are true.  They think the affidavit of non-prosecution is either forced, coerced, or done out of self-blaming guilt.  I’m sure sometimes they are right.

Also, as I wrote above, some offices are driven by policy of rejecting affidavit’s of non-prosecution.  They may feel self-assured enough that each and every case of domestic abuse allegations are the same — or they may simply be under pressure from third party advocacy groups such as battered women shelters to have such a policy.

What Happens when the Prosecution Makes one Spouse Testify Against the Other Against Their Will?

This happens.  I’m frequently asked if one spouse can lawfully refuse to testify against the other and the answer is no – assuming that spouse has been lawfully subpoenaed.

The prosecution can cause a subpoena to be issued which is a lawful court order requiring the witness in the case to come to court and testify under oath.  A judge can also compel a witness to testify and answer questions about instances of alleged domestic violence because the marital privilege does not extend to protect one spouse from testifying about the other accused of a crime.

It’s an unusual dynamic because the prosecution is put in a position of cross-examining their own “victim” in a case and in certain cases the complaining witness themselves may be entitled to counsel depending on the specifics of the situation.  You would think a prosecutor would do everything in their power to avoid being in this position but many prosecutors feel they are fulfilling a greater good by conducting a case this way.

The Firewall – The Jury

The good news is if all these things come to pass with the prosecution rejecting an ANP, forcing the case to trial and compelling one spouse to testify against the other — the defendant has the firewall or last resort of having a jury decide the case.

Juries aren’t subject to the DA’s offices policies and they have to be convinced the prosecutors crusade to convict one spouse over the other ones wishes is meritorious — and experience tells me that’s a very hard sell.

Even if the prosecutor doesn’t want to dismiss a case because a complaining witness says so — doesn’t mean the case doesn’t often finish with a two-word “not guilty” verdict.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.

 

Comments Off on Domestic Violence Charges – Blog 15:  Affidavits of Non-Prosecution and What Happens with the “Victim” Doesn’t Want the Case Prosecuted? | Assault, Divorce related crimes, Domestic Violence, Emergency Protective Orders, Police, Police and Prosecutors, Self Defense | Tagged: , , , , | Permalink
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Domestic Violence Charges – Blog 14: Common Prosecution Trial Tactics

December 26, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

In domestic violence trials, prosecutors know typically their case is only as strong as their complaining witness.

You can read other blogs about defending domestic violence charges and an index to the other blogs here.

Most family assault cases will have the prosecution calling to the witness stand the accuser, one or more police officers who were presumably on the scene, and increasingly expert witnesses who are often what we characterize as “blind.”

Exhibits will consist typically of photos taken the evening of the arrest of the complaining witness, the defendant and often of the place the altercation, if any, occurred if there is damage.  We also might see media in the form of 911 calls or body-cameras from police.

Corroboration

Because the accuser is the main witness – the prosecutor obviously attempts to show the jury as much evidence as they can which corroborate that witness’ account.  It could be physical injuries, cuts or scars.  It could also be physical evidence on the scene such as broken items or the location of other evidence or debris from an altercation.

Medical records exist in many cases but not all.  Obviously those are valuable pieces of evidence a to which a prosecutor will point if it fortifies their case.

Often times the corroboration might include statements the accused makes whether or not it is consistent with a true confession.

“The Cycle of Violence” and “Power and Control Wheel”

The cycle of violence and power and control wheel, which I’ve blogged about before, are central tenants of the Duluth Model and are loaded with assumptions and weaknesses.

The cycle is a theory which says domestic abuse goes through cyclical patterns which include assaultive abuse, a honeymoon phase, and then increasing tension followed again by assaultive abuse which is often worse than before.

The power and control wheel describes underlying motivations which include power and control by the abuser

These are generally incorporated into the prosecution’s case in AFV trials.  The prosecution attempts to fit aspects of the cycle and the wheel into the facts of the case.  Sometimes their evidence fits and sometimes it doesn’t.

True Story — I once had a prosecutor argue to a jury that when my client filed for divorce after she’d accused him of assault that it was because he was trying to control her.  I include it because it shows just how far the prosecution might reach and jam any fact they can into the “power and control wheel” whether it fits or not.  You would think filing for divorce would also be evidence of wanting to not be around another person at all (because they just had him falsely arrested for assault) and would be the complete opposite of trying to control them.

“Blind Lumper” Expert Witnesses

The “blind” expert is often a person who either works with law enforcement or as an advocate for domestic violence victims.  They are blind for the reason they usually don’t know any of the facts of a specific case until they hit the witness stand.  They are “lumpers” because academics tend to either “lump” everything into one-size fits all or they tend to “split” and show how one case differs from the rest.

They are then lobbed hypotheticals by the prosecution.  The unshackling result is the blind lumper witness then molds the hypothetical into how it fits the Duluth Model which shows, according to them, defendant is guilty.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Super Lawyer by Thomson Reuters.

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Domestic Violence Charges – Blog 13: The Duluth Model and Reciprocal Intimate Partner Violence

December 24, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“The Duluth Model” is the current prevailing theory of domestic violence by law enforcement in the United States.

Its origins are from Duluth, Minnesota and was based on a treatment program run by Ellen Pence, a self proclaimed activist.

The “Cycle of Violence”, “Power and Control Wheel”, and “Batterers Intervention Program” are some of the staples of the Duluth Model in action.

You can read other blogs and the index to my continuing series on defending domestic violence cases here.

The Cycle of Violence

The Cycle of Violence was developed by Lenore Walker in 1979 based on 120 battered women.  She believed in three phases:

  • Tension Building Phase
  • Acute Explosive Phase
  • Honeymoon Phase

Her theory is an abuser causes the relationship to build tension which makes the victim  “walk on eggshells.”  The acute explosive phase is where the violence and abuse occurs and after this there is a honeymoon phase where the abuser apologizes, promises change, and goes out of their way to re-attract their mate.  This of course gives way again to another tension building phase and so on according “the cycle.”

Assumptions the “Cycle of Violence Makes”

It Assumes Domestic Abuse Within a Relationship is Unilateral

The cycle of violence assumes the abuse is unilateral and not reciprocal.  But studies have shown alarming rates of “Reciprocal Intimate Partner Violence” whereby both intimate partners at times are aggressors and at other times are victims.

It Presumes Guilt

The “Cycle of Violence” seems to have been created as a tool for treatment and therapy – not for the diagnosis of domestic violence.  When using it to attempt to prove guilt – it actually presumes guilt as an underlying assumption.

If you replace the very top assumption with its opposite – Defendant is innocent – then absolutely none of the other phases make logical sense.  But this diagram shows how the echo-chamber logic is circular in the first place.

 

Mental Illness & Substance Abuse Also Cause Domestic Violence

The Duluth Model holds, essentially, manipulation control and power are the root causes for domestic abuse.  But other contributing factor of domestic violence, as anyone who defends these cases on a regular basis will tell you, are anxiety, depression, and other mental illnesses such as psychosis.  Not far behind as contributing factors are substance abuse.

“Evidence Flipping”

Much of the problem with highly subjective echo chamber concepts such as the cycle of violence is the ability for the prosecution to take any evidence whatsoever and flip it into evidence of guilt.

Is buying your spouse flowers a confession?  This is what a prosecutor would argue is the “honeymoon” phase.  If this were true, though, then every florist needs to contact the police every time someone makes a purchase.

Is every instance of tension in a marriage evidence of “the tension building phase?”  If this were true, every marriage counselor would have the police on speed-dial.

Other Criticism of the “Duluth Model”

The Power and Control Wheel

The “Power and Control Wheel” is a similar diagram to the cycle of violence.  It differs in that it purports to describe the methods of power and manipulation the abuser uses to control the victim.

The criticism of the Power and Control wheel over-lap with the criticism of the Cycle of Violence.  It assumes the physical abuse in a relationship is unilateral.  It presumes guilt.  It, too, largely ignores mental illness and substance abuse as underlying factors – and proscribes power as the main motivator between an abuser and the abused.

The Countervailing Theory – Reciprocal Intimate Partner Violence

Reciprocal Intimate Partner Violence, also called mutual violence and/or symmetrical violence holds both intimate partners have been aggressors at times and both have been victims at times.  Again, this directly undercuts the Duluth Model which presumes the abuse to be unilateral or one-way.

Studies have shown “reciprocal” violence to be between 42% and 70% in relationships where there is domestic abuse.  In a 2007 study published in the American Journal of Public Health, concluded roughly half of abusive relationships fit this profile.  The same study shows it was actually women who were thought to be the aggressors 70% of the time, however men inflicted more physical harm to their partners.

If the Duluth Model is Wrong Half of the Time – Then So What?

It’s important because the prosecution can be very heavy handed in the way they attack a case with the Duluth Model.  It includes their potential misconceptions about the reality of the relationship of the couple which can skew and make the potential punishment not only unfair and inequitable – but also not assist the couple with the real underlying dysfunctional issues.

From a defense perspective – it also opens the door to defenses such as self defense and consent when we break the misconceptions the Duluth Model may inject.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

Comments Off on Domestic Violence Charges – Blog 13: The Duluth Model and Reciprocal Intimate Partner Violence | Assault, Civil Liberties, Deadly Conduct, Divorce related crimes, Domestic Violence, mental illness, Police and Prosecutors, Self Defense, Trial Advocacy, Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
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