More General Information about Domestic Violence Cases
by Glen R. Graham, Attorney at Law
See other post about subject matter herein below this post at:
More information about Tulsa Domestic Assault and Battery Criminal Offense
Victim's or Witness Request to Dismiss and Affidavit: (Google Docs)
http://docs.google.com/Doc?id=dhmqv6sp_0c4pxcddz -
You can print this off and give it to your lawyer (not the prosecutor) to give to the prosecutor at the proper time. It is not binding on the government but it does give the assigned prosecutor something in his file from the accuser. If the prosecutor has it too soon, they may attempt to force the witness to testify involuntarily so you may want to discuss this with your lawyer before subjecting yourself to persecution by the prosecutor.
Domestic violence assault and battery cases are viewed as extremely serious cases where the violence may escalate or where people may be injured or children psychologically injured.
There is political pressure to pursue all domestic violence cases because there is a belief that the violence may escalate or that people's lives or safety may be endangered.
Alleged "victims" may want to legitimately dismiss the charges but the criminal case is being prosecuted by the State and not the victim. The prosecutor may initially refuse to dismiss the case in order to extract a "plea" from the defendant which will require counseling which is usually once per week for fifty-two (52) weeks under the current statutory laws passed by the Oklahoma legislature. This blanket law ignores the individual differences between individuals and between the individual circumstances of the specific case. Upon conviction, it requires 52 weeks of counseling simply because it is a domestic violence assault and battery case.
The case may get dismissed anyway if the state is unable to prove the case if there is no witness that testifies after the case is set for trial unless the state can prove the case with other evidence.
Without a witness, the state will attempt to use the following:
1. Admissions and confessions by the defendant;
2. Photographs of the injuries;
3. 911-tape of the call reporting the incident;
4. Statements that fall within the exception under the Crawford analysis. The Crawford case held that a defendant has a right to confrontation but not as to statements that were not "testimonial" in nature. So, 911-tapes are considered non-testimonial and are admissible as an exception to the Crawford rule;
5. Other witnesses.
Many times the other evidence is not sufficient and the case may get dismissed at the time of trial without sufficient evidence.
Most prosecutors will attempt to telephone the "victim" at the phone number in the police report. Some prosecutors may attempt to bluff the victim into changing their mind about pursuing the case. It is not right to lie or intimidate a witness. However, prosecutors generally do not get prosecuted by other prosecutors. So, I have heard of cases where a prosecutor would threaten to have the "victim" arrested if she did not appear in court. However, the statute dealing with material witness warrants states that a victim cannot be arrested on a material witness warrant. A smart victim would not talk to a prosecutor who might prosecute them for any statements which they might make indicating they were not truthful when they filed a police report or indicating that they have changed their mind about what happened. Some prosecutors will threaten to take the children away if the victim does not co-operate. A prosecutor cannot "take the children away" because the victim refuses to co-operate. A prosecutor can request a DHS investigation but this does not mean that the children are automatically taken away. Most DHS investigations are performed by an "independent" DHS case worker and their reports will be reviewed by an independent Judge. Unfair statements by prosecutors designed to intimidate or coerce victims into pursuing a case which should be dismissed are not ethical. Prosecutors generally will not prosecute other prosecutors.
Attorneys are supposed to be bound by a Code of Professional Responsibility which is supposed to apply to all attorneys even prosecutors.
More General Information About Domestic Violence Cases
What to Expect on a Tulsa DUI or APC
What to Expect on a Tulsa DUI, DWI, or APC By Glen R. Graham, Attorney at Law, (918) 583-4621, more information available at his web site, http://www.glenrgraham.com/ More information available at http://www.tulsacriminaldefense.blogspot.com/ Each case is different so there are some individual differences from case to case. You may have a defense to the case and you should schedule an appointment with an attorney to discuss your specific facts. My telephone number is (918) 583-4621 and I only handle Oklahoma cases. - You should be advised that you only have fifteen (15) days to request a hearing from the Department of Public Safety to attempt to save your driving privileges. You should hire a lawyer to file the proper request in the proper format to request a hearing to attempt to save your driving privileges. Your driving privileges are treated separately from your criminal case. Everyone is presumed to know the law, so if you fail to make a timely request for a hearing, you will have waived you right to a hearing on your drivers license. It may be possible to use the drivers license hearing as a “discovery tool” to see what the police officer will testify to in your case in the criminal case. Again, if you fail to make a timely request for a drivers license hearing then you will have waived your right to a hearing on your drivers license. - Usually, the court is going to require a “substance abuse assessment” before the case can be finalized or any deals can be worked out. Also, if you score sufficiently good on the assessment, you might be able to argue that you do not have a problem and use it to obtain a better deal or as a mitigating factor. Any DUI school can give you a substance abuse or alcohol assessment which costs $175.00 dollars. Most take payments but will not give the assessment until they have been paid. The court will order you to comply with any requirements stated in the assessment. If it is determined that you do not have a problem with substances or alcohol, then this information can also be conveyed to the court. Normally, the court will pass the case to give you time to complete the assessment and to pay your lawyer. - Most lawyers expect to be paid prior to completion of the case. At some point a plea bargain may be worked out. Normally, if this is your first offense and you do not have a "bad" criminal record and do not have other offenses and if the facts are right, then the court will put you on a 4 month program for you to complete certain requirements during those 4 months. The normal requirements are the DUI school, victim impact panel, (if under 25 yrs – then the Youthful Offender Program), and sometimes community service plus fines and costs. Each case is different and it depends upon the recommendations of the assessment and the court.
However, sometimes the prosecutor will agree to a straight deferred sentence, if it is your first offense and you do not have a prior criminal record. Each case is different and must be evaluated on it's individual merits. Was there an accident? Does the defendant have any prior criminal record? What was the breath result - high or low or refusal? What were all the circumstances involving the offense and what traffic laws were violated? Each case is different and you must talk to a lawyer in person to determine what might be an acceptable outcome on the case. Do NOT TAKE A CHANCE - when your freedom is involved - talk to a lawyer in person!!!
In some city municipal courts, the prosecutors are not willing to agree to deferred sentences but will agree to a program to reduce to a lesser charge such as impaired driving or reckless driving. Each case is different and it depends on which court the case is assigned to and who the prosecutor and Judge assigned to the case and what are the facts of the case and circumstances of the defendant. Each case is different, you should talk to a lawyer in person. You can call me at (918) 583-4621 - Glen R. Graham - Attorney at Law.
If you are under 25 yrs, then you may qualify for a YDD program which results in a “deferred sentence” which means upon successful completion of the court requirements (including probation) then your case is dismissed and expunged upon payment of the costs and assessments. If you are over 25 yrs, then you may qualify for an adult version of the program which results in either a deferred sentence or a reduced charge to a lesser offense and a fine and probation.
Again, each case is different and it depends upon the facts. A person who is charged with DUI and has young children in the car or speeds through a school zone or endangers other peoples lives such as having a bad accident while DUI, may have a more difficult time attempting to work out a satisfactory plea bargain. Each case is differenct and you need to consult with a local lawyer in your area. I only handle Oklahoma cases and I have been practicing law for over 20 years. Yours in the Defense of Fellow Human Beings, Glen R. Graham, Attorney at Law, (918) 583-4621
Legal Information About Domestic Assault and Battery Criminal Misdemeanor
From the Defense Point of View
By Glen R.Graham, Attorney at Law, over 20 years experience, more information available at his web site: http://www.glenrgraham.com/
Victim's or Witness Request to Dismiss and Affidavit: (Google Docs)
http://docs.google.com/Doc?id=dhmqv6sp_0c4pxcddz -
You can print this off and give it to your lawyer to give to the prosecutor at the proper time. It is not binding on the government but it does give the assigned prosecutor something to put in his file from the accuser. If the prosecutor has it too soon, they may attempt to force the witness to testify involuntarily (call you up and threaten you) so you may want to discuss this with your lawyer before subjecting yourself to persecution by the prosecutor. A lawyer would probably bring it to court and give it to the court on the day set for hearing or trial when the witness does not appear.
The evidence is what determines the out-come in most cases. It depends upon the facts and what facts can be legally admitted under the rules of evidence or presented to the judge or jury in open court. A defense lawyer is prohibited by law and ethics from making any statement to a witness which specifically tells the witness not to come to court to testify. A witness should use their independent judgment to decide what is in their best interest. A witness should hire a lawyer or at least talk to an “independent” lawyer (a lawyer not representing the defendant and a lawyer who is not the prosecutor) on the telephone about what is in their best interest. Neither the prosecutor nor the defense lawyer represent the victim.
Title 22 O.S. Section 720 specifically states that a “material witness warrant” cannot be issued for a VICTIM in a criminal misdemeanor case for failing to appear. A material witness warrant can be issued for a witness who is not a victim under certain circumstances like proof of service of a subpoena or in felony cases where a non-victim witness makes certain statements to police or prosecutor about not appearing. If a victim is personally served with a subpoena there is the possibility of the prosecutor asking the court to issue a warrant for the victim if they fail to appear but this is a matter of discretion and some prosecutors may let it go and some might not. If the victim is not personally served with a subpoena then how would the victim know to come to court and nothing usually happens. Some prosecutors may attempt to telephone the victim and talk them into coming to court or try to scare them into appearing in court or even say they will seek to have a warrant issued which is not possible against a victim unless there is personal service of the subpoena. Without personal service of a subpoena on the victim, there is not much the prosecutor can do in a misdemeanor case.
A defendant and a lawyer for the defendant should never tell any witness not to appear in court because someone could try to imply that they intimidated a witness or possibly obstructed justice or committed a crime of witness tampering.
A victim may be threatened with prosecution if they talk to the district attorney and make certain statements. The district attorney is a prosecutor who is sworn to uphold the law and does not represent the victim and is not the attorney for the victim. A victim has an absolute right to hire a lawyer to represent them.
It is a crime to file a false police report so if a victim tells a prosecutor that they lied when they told the police that something happened then the prosecutor has the discretion to file charges against the victim. It is perjury to testify under oath to something that is not true. So, if the victim filed a false police report and then testifies under oath in court to something that is not true then they can be charged with perjury. A prosecutor has discretion about whether to file charges and does not always file these charges. If the victim does not talk to the prosecutor then they cannot file a criminal offense against the victim for filing a false police report unless there is some other evidence to support the charge.
Many cases are set for a trial and then if the prosecutor is unable to obtain personal service of the subpoena on the victim or other witnesses or if there is not a confession from the defendant and if there is not a 911-tape recording from the victim, then in some cases the case may get dismissed.
The case can be prosecuted without a victim when there is other evidence such as 911-tape recording, pictures of victim showing injuries, confessions, OR other witnesses. There is political and social pressure to obtain a conviction. There is the possibility that the violence could escalate (possible murder or serious injuries unless counseling) and so there is a desire for the defendant to be ordered to go the counseling which can only be ordered by the court if there is a conviction.
A prosecutor may attempt to telephone the victim at the phone numbers listed for the victim in the police reports. A prosecutor may threaten to have the victim arrested (although under 22 O.S. § 720 states a victim cannot be arrested on a material witness warrant) or may threaten to send an investigator to the home of the victim to bring them to court. A prosecutor may make statements to the victim to get them to appear in court. There are some “stories” about some prosecutor calling a victim and stating that they would be arrested if they did not appear in court even though the laws says a victim cannot be arrested for a material witness warrant under 22 O.S. § 720. One story is that a prosecutor once told a victim that they would call DHS to pick up the children or file a report with DHS. (Anyone call call DHS but that does not automatically mean that DHS will take someone’s children. They will investigate the allegation and make an “independent determination.”) Most domestic cases don’t involve the children or any direct harm to the children but there are exceptions. Prosecutors don’t normally prosecute other prosecutors for statements made to victims. Defense lawyers can be bar complainted, tape recorded, and prosecuted for statements that they make to the victim. A defense lawyer may be threatened with prosecution for statements made to a victim so most defense lawyers prefer not to talk to the victim. A lawyer for a defendant should not specifically tell a victim not to appear in court. However, a victim can always contact any “independent” lawyer in the telephone book to ask about their rights and what is in their own best interest.
Neither the prosecutor nor the defense lawyer represent the victim. A victim has the right to hire their own lawyer to represent them or to at least talk to an “independent” lawyer (not the defense or prosecutor) on the telephone about it.
Increasing the Percentage of Cases that go to Trial to Achieve Justice
I think if we, as defense lawyers, could increase even slightly, the percentage of cases that go to trial, then it might be possible to achieve a better sense of "justice" for some of our clients. Obviously, the current system is designed for a "plea bargain" and not necessarily for "justice." However, prosecutors have an ethical duty to not prosecute a case in which they personally possess a reasonable doubt about the guilt of the accused irregardless of pressure from their supervisors or the public.
From the ABA Standards on Criminal Justice:
Standard 3-3.8 Discretion as to Noncriminal Disposition
Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender
(iv) possible improper motives of a complainant
(c) A prosecutor should not, be compelled by his or her supervisor to prosecute a case in which he or she has reasonable doubt about the guilt of the accused.
An email received by my colleague, Brian Tannebaum, over at his blog - here - stated:
"This is all a result of a system that is designed for pleas, in which 2% of cases go to trial. Therefore, prosecutors are judged on conviction rates and pleas. They should be judged on whether they act honorably and thoughtfully on what they do and don't prosecute. It is further the result of this country's CYA mentality. No one wants to be on the O'Reilly factor.
Therefore, cops make arrests they don't really agree with and pass it up the chain, hoping the State will do the right thing.
The State files and pursues the case, while making a decent plea offer to the innocent Defendant, because they have to "back up the officer".
The judges deny motions to suppress and other defense applications, because there is never any political capital to be gained in siding with a Defendant.
The underfunded and overworked lawyer pleas the client out, or he just might lose to a jury of citizens who assume that a guy couldn't be arrested, filed on, and have a Judge allow a trial, if he is actually... innocent.
Its all capped off by a PCA from the District Court of Appeals, if they are too busy to write an opinion on that particular case.
I, for one, personally think that the only way to combat this trend is for more defendants, and their attorneys, to be willing to go trial. If we can raise the percentage of cases that go to trial then more nonsense gets exposed and the judges will encourage the State to not waste their time and clog their docket.... instead of leaning on us."
Subprime Loan Crisis Ramifications & Consequences
Professor Jonathan Simon, UC at Berkeley, on his blog, here, says that it was only a matter of time before the rippling "subprime" loan crises became a story of crime. He points out the preferred story by some media is the street crimes by some poor people and minorities instead of the "suite" crimes by the educated professionals and he cites a story by MSNBC in his blog.
This is an interesting story and I wonder what effect this may have in picking a jury. Will the potential juror's see the subprime loan scandal as the story of crimes by minorities and poor on foreclosed homes or as the story of swindles and con-games and fraud by educated professionals or as a little bit of both? Vacant, abandoned houses and decaying neighborhoods become labeled crime neighborhoods or high crime areas as the middle class move out and the unemployed and poor move in. Eventually, maybe, some neighborhoods turn around after some new investors buy the properties and rehabilitate them, sometimes. At other times, urban renewal goes through and demolishes the old neighborhood.
Interesting ideas. What other effects of the subprime loan crises can we expect? Loans may dry-up, investors flee, increased governmental over-sight, decline in new housing market, higher interest rates, etc. ? Or, maybe, fewer defaults, fewer bad loans, less foreclosures, less mortgage fraud? There is going to be a period of "adjustment" as the market adapts to the new environment. Things usually do get better.
Biblical Authority in Opposition to Snitching
I have previously written about the Biblical authority in opposition to the use of hearsay evidence and the right to confrontation and the right against self-incrimination --- see my post here: HERE
Scott Henson’s blog cited HERE discusses Biblical authority in opposition to “snitching” or his interpretation: and the comments following his post are excellant!!!
Mosaic Law required that "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15) Christ formally affirmed this doctrine as part of the New Testament covenant in Matthew 18: 15-16, as the Apostle Paul did in Second Corinthians.He also refers to the Synod of Elvira, an important provincial religious council in Spain that occurred sometime during the first decade of the Fourth Century, prior to Emperor Constantine's conversion and Christianity's formal, public acceptance in the Roman Empire. This was a period when Christians were harshly persecuted by the Romans, wherein he cited the Christian version of the modern "stop snitching" code (here's the only web version I can find: Scroll down to see #73):
http://faculty.cua.edu/pennington/Canon%20Law/ElviraCanons.html
"A Christian who denounces someone who is then ostracized or put to death may not commune even as death approaches. If the case was less severe, he or she may commune in less than five years. If the informer was a catechumen, he or she may be baptized after five years."
Refusing communion was the most terrible punishment early Christians could think of - far more awful, in the long run, than the death penalty for the unsaved soul.The reference to a Christian denouncing someone in the context of the Elvira Synod meant ratting out a fellow Christian to the Roman authorities, which quite possibly could get them killed. In that case, their excommunication was permanent.These Christians had read most of the same books of the Bible we do now (they probably had more, actually), and they knew the admonition to "render unto Caesar what is Caesar's." But the Elvira Synod did not consider their truthful testimony about fellow Christians something that belonged to Caesar. Instead, snitching on fellow Christians was declared an offense against God by which a Christian risked everything, literally their eternal soul.
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
http://www.glenrgraham.com/
Returning Veterans Face Problems Upon Return --- Organizations Try to Help
Returning veterans may be in for a multitude of problems as exemplified in part by the Walter Reed Hospital scandal. Reports indicate that the Department of Veterans Affairs was ill-prepared for the sheer numbers and serious combat related and mental health and health and related issues of veterans of the Iraq and Afganistan Wars.
One issue that has yet to be addressed by the Oklahoma criminal court system is what services and special issues to deal with the special needs of veterans will the court establish (if any) to deal with the unique needs (both mental and social) of our veterans?
While military veterans represent 11 percent of the civilian adult population, they make up 26 percent of the homeless, according to data from the Department of Veterans Affairs and the Census Bureau. Counting all US veterans, 195,827 were homeless in January 2006 and an estimated 495,400 were homeless over the course of the year, the National Alliance to End Homelessness reported.
Around the country, community groups, local businesses, service organizations, clubs, and faith groups are helping build homes with special features or providing vehicles to accommodate wounded GIs.
As of November 5, 2007, the Brookings Institute is reporting 3,848 US soldiers killed, 28,451 and seriously wounded and of the 28,451 wounded, 20% have serious brain or spinal injuries (total excludes psychological injuries)
US Troops with Serious Mental Health Problems 30% of US troops develop serious mental health problems within 3 to 4 months of returning home
A review shows that the VA planned for a short and relatively bloodless war in Iraq, and then was slow to react when the war dragged on. In the military culture there is still a stigma attached to mental illness. Marines, especially, just aren't supposed to cry out for help.
PTSD estimates indicate the possibility that some veterans may be in for possible mental issues, depression, anxiety, outbursts, alcohol use, anti-anxiety medication, drug use, etc.
Organizations that want to help include:
America Supports You http://www.americasupportsyou.mil/
American Legion – Heroes to Hometowns (703) 908-6250 http://www.legion.org/
Checkpoint One Foundation (503) 871-3238 http://www.cponefoundation.org/
Homes for Our Troops 866-787-6677 http://www.homesforourtroops.org/
Iraq and Afghanistan Veterans of America (212) 982-9699 http://www.iava.org/
National Veterans Foundation 888-777-4443 http://www.nvf.org/
Returning Heroes Home http://www.returningheroeshome.org/
Swords to Plowshares (415) 252-4788 http://www.swords-to-plowshares.org/
US Welcome Home Foundation (520) 296-4686 http://www.uswelcomehome.org/
Veterans Outreach Center 866-906-8387 http://www.veteransoutreachcenter.org/
Veterans Village (209) 830-9955 http://www.veteransvillage.org/
Vets4Vets (520) 319-5500 http://www.vets4vets.us/
Bad Informant Testimony Has Disastrous Consequences - Tulia, Texas and the Kathryn Johnson 92-Year Old Woman in Atlanta, Georgia Case
The Tulia, Texas, government agreed to pay a settlement of $6,000,000.00 (million) dollars civilly. It involved false informant related activities and over 28 people falsely charged. Officer of the year in Texas, a “gypsie” traveling law enforcement officer, Tom Coleman, received an award during his activities. There was no corroboration for his arrests and some defendants were able to prove an alibi such as being at work during the time he said he made buys. Coleman said he made notes on his arms. The majority of defendants were minority Americans and many faced with many years in prison if they fought the case, accepted plea bargains in place of a trial.
Some statistics allege that “false informant” information is a major cause of false convictions in drug cases. According to retired, DEA agent, Dennis Fitzgerald, failure in the management of informants and co-operating individuals is the single most obvious source of integrity problems in the DEA. (See exact quotation below).
Also, there is the case of Kathryn Johnson, the 92 year old lady in Atlanta, Georgia, who was shot six times by police officers who broke into her home (she had anti-burglar bars and she came up shooting trying to protect herself) based upon a false affidavit for a search warrant that was subsequently determined to be a false affidavit and the alleged informant claimed he never gave the officers the false information. Subsequently, two police officers plead guilty to related charges and perjury type related charges involving the false affidavit.
There are other cases, multiple cases, involving false affidavits. Recently, during a jury trial in California, the Jury found the defendant not guilty when the informant testified and fell asleep on the stand several times. During a retrial a new jury found the informant not credible. The informant a drug addict in that case was paid several thousands of dollars. Putting a known drug addict or criminal on the pay roll whether by way of a reduced sentence or money is always a questionable practice.
Over, and over, and over again there are a multitude of false affidavits involving bad informant testimony.
Suggested reforms include requiring adequate "corroboration" for any informant testimony and an independent in camera judicial review of the informant file concerning credibility and corroboration and the existence of the informant.
Retired DEA special agent, Dennis Fitzgerald, author of The Informant Law Deskbook (West 1997), stated:
Many police managers view informants as a necessary evil, (1) time bombs waiting for the wrong moment to explode. The catastrophe that follows their detonation may include the death or serious injury of citizens, (2) civil law suits and destroyed police careers. (3) The Drug Enforcement Administration (DEA) reports that the "failure in the management of cooperating individuals constitutes, perhaps, the most obvious single cause of serious integrity problems in DEA and other law enforcement agencies."(4)
Notes and Sources: 1. Confidential Informants - Concepts and Issues Paper, International Association of Chiefs of Police, Law Enforcement Policy Center. 2. Carlson v. United States, 93-953G, see also Alvord, Snitches, Licensed to Lie?, San Diego Union Tribune, May 30, 1995, at A-7. 3. Commonwealth v. Lewin, 405 Mass. 566, 542 N.E. 2d 837 F.2d 727, 731 (6th Cir. 1988). 4. Integrity Assurance Notes, Drug Enforcement Administration, Planning and Inspection Division, Vol. 1, No. 1 (Aug. 1991). See also United States v. Gardner, 658 F. Supp. 1573, 1575 (W.D. Pa. 1987).
See Fitzgerald's article: http://www.nacdl.org/CHAMPION/ARTICLES/98may03.html
