If the police or the District Attorney's
Office labels your case a "domestic
violence" or "special victims" case, then your case takes
on layers of difficulty not associated with other cases in the system
(even compared with cases of seemingly greater violence).
The real reason these cases take on
extra layers of difficulty is a simple, basic motivation for human
behavior: FEAR.
Every agency that comes into contact with a domestic violence case
(police, prosecutor, and judicial) is driven by FEAR of the consequences
if THIS case is going to be THE CASE.
THE CASE
is the seemingly "minor" domestic incident in which
the accused walks away from the courtroom, returns home, and murders the
complaining witness. Such cases, however rare and unpredictable
they are, universally make headlines throughout the city.
The Judge is blamed, the Police are
blamed, and the Prosecutors are blamed because it is easy to blame them.
(Why the criminal isn't blamed is a good question.)
Careers are held back and even ruined as a result of such publicity.
Is it totally insane? Is it wrong and unfair? Of
course. But that is the FEAR that is underneath the way the system
treats nearly all domestic violence allegations.
And as you might expect, a system
driven by FEAR leads to unexpected, illogical results.
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The
Police
The first step in this fear-driven
process is police interaction.
Police officers who respond to a call
of domestic violence (regardless of who makes the call) are required by
police department policy to make an arrest (or at least this what the
police will often will say to the people they arrest). This policy
exists because the police don't want to be blamed for failing to arrest
a person who five minutes later murders his/her spouse. Everyone
seems to believe that the police are or ought to be able to predict the
future.
Initially such a police policy might
even seem a reasonable response on the "If it saved one
life..." theory. The problem of course, is that such a policy
sweeps up vast numbers of idiotic, childish, stupid situations into the
criminal justice system. It is a shining example of just how bad
the criminal justice system is at dealing with family issues.
The police policy is really a
fear-driven means to pass the responsibility for each case to someone
else, namely the District Attorney's Office. "Arrest Everyone
and Let the Prosecutor Sort 'Em Out" is a fair summary of the
Police policy. Having arrested everyone possible, the Police will
never be able to be held responsible by the New York Post for a later
murder. "All we can do is arrest them. It's up to the
Prosecutor to make sure they get punished," the Police Department
will say.
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The
Prosecutors
And the police approach might
"work" if the Prosecutor did "Sort 'Em
Out". But as a practical matter, the Prosecutor doesn't
"sort 'em out" for the same reason the police don't want to
"sort em out". They don't want to take responsibility
for using their judgment.
Once someone actually uses his
discretion to make a decision based on reason and logic, that person is
subject to being held responsible by the New York Post if it turns out
that it was THE CASE.
So the District Attorney's Office
sometimes seems to take
a "Prosecute everyone and let the Judge or Jury sort em out"
approach. At arraignments, for example, the Prosecutors as a
general rule request bail in just about every single case they label
domestic violence, regardless of the defendant's background.
This forces a decision on the Judge,
who must actually make a decision.
By requesting bail the Prosecutors
protect themselves from criticism by the New York Post by making it
possible for them later to say "We requested that the Judge set
bail. We did all we could do." If the Judge decides to
release a person without bail, then the New York Post responsibility
rests with the Judge.
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The
Judge
Now this of course places the Judge in
a politically awkward position. The Judge must actually use his or
her discretion. Therefore, the judge is subject to New York Post
"Judge is responsible for all future actions of people who come
before her" criticism.
How Judges respond to this difficulty
depends on the personality of the Judge. Sometimes Judges will
give the Prosecutors exactly what they ask for. In other words, if
the Prosecutors ask for $500 bail, the judge will set exactly that.
This is actually an interesting way of attempting to deflect New
York Post criticism. If the defendant makes bail and kills
someone, the Judge can always take the position that he set exactly what
the Prosecutors asked for and that he must assume that the Prosecution
evaluated the case (and the defendant) when requesting the bail.
The Judge can take the position that if the Prosecutors had requested
higher bail he would have set higher bail and the tragedy would never
have happened.
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Temporary
Orders of Protection (TOPs)
Add Temporary Orders of Protection to
the above recipe for seemingly absurd results and you begin to gain an
understanding of just how terrible Criminal Court is at dealing with
domestic issues.
A TOP is an order from a Court to stay
away from another person and to avoid doing what is otherwise illegal
anyway. Violating a TOP is now a felony offense in some situations
and a misdemeanor in all others. Ideally, TOP's are designed to
provide a powerful reason to in fact stay away from another person (the
threat of criminal conviction and jail).
Judges in New York City issue TOPs in
virtually (almost without exception) every case in which the Prosecutor
requests one. Right or wrong, that's the way it is. Not
issuing an Order of Protection is perceived as an extremely dangerous
thing to do. The New York Post would have a field day if something
happened in a case in which a judge refused to issue a requested TOP.
In the best light, this process could
be described as a "Chicken Soup - It can't hurt" philosophy.
Forget about the fact, however, that law is supposed to operate based on
reason rather than on whether a particular ruling "can't
hurt".
TOP's provide no REAL protection,
however. No TOP has ever stopped a bullet or deflected a knife.
And also, the TOP gives the complaining
witness, a private citizen, the power of arrest over another person.
Once you have a TOP in your favor, you can have the named person
arrested at your whim. All it takes is a call to the
police. "He saw me on the street and threatened to kill
me" is all it takes. The police don't want to "take any
chances" so the person is arrested. Let the Prosecutor sort 'em
out. And the Prosecutor doesn't want to be blamed for anything, so
they prosecute and let the Judge (or jury) sort 'em out.
And think about who is given that power
of arrest -- a person who is by definition in an extremely emotional
state and either justifiably angry or a prior maker of false
allegations. Either way, the potential for abuse is extreme.
Police and prosecutors refuse to accept that the potential for abuse
(and actual abuse of TOP's) is incredible.
None of them wants to take the
responsibility for undertaking to examine claims of violations of TOPs,
because none of them wants to take responsibility even if they made a
perfectly rational decision in a case. That future human behavior
(especially in the realm of strong emotions) is impossible to predict
accurately doesn't matter to The New York Post so it doesn't matter to
the system.
In other words, given this fear-driven
system, don't expect logical results.
The policies of the District Attorney's
Office, the Police, and the reaction of judges to cases involving
domestic violence combine to treat many cases as if they were THE CASE of the madman who will immediately kill everyone involved.
And it is so clearly a case of covering themselves against absurd New
York Post stories that they often don't seem to understand how absurd
the results often are.
For example, in a case of
ours in Queens, a client's girlfriend did not want to proceed against her
boyfriend and affirmatively stated that some of the claims she
originally made when she was angry were NOT TRUE. She
affirmatively said she did NOT want a TOP so that they could be
together.
Nevertheless, the Prosecutor refused
to dismiss and only would offer a non-criminal offense called
harassment to resolve the case. If the client accepted the deal,
all he would have had to do to walk out of the courtroom FOREVER was
to agree that he "harassed" his girlfriend. If he
simply spoke those magic words, the Prosecutor and the Judge were
perfectly prepared to permit him to leave the Court FOREVER and to be
with his girlfriend as if nothing ever happened.
But our client refused even to admit
that he harassed his girlfriend. Since the Prosecutor refused to
dismiss the case, the case had to be adjourned. Over our
objection, the Judge issued a FULL TOP ordering the defendant to stay
away from the complaining witness completely.
Remember that moments before, the
Judge was perfectly content to permit our client and the complaining
witness to go off together into the sunset. All he had to do was
say the word "yes" when asked whether or not he harassed his
girlfriend. But because he refused to speak that magic word, the
judge insisted that the girlfriend have a full TOP. This was
despite the fact that she was in Court specifically requesting that
she NOT be given a full TOP.
Therefore, our client risked arrest
on a new charge if he had any contact with the complaining witness
until the next court date. Somehow, our client stopped being a
threat to the complaining witness if he spoke the magic word to the
judge (even if he didn't really mean it). But by not speaking
the magic word, our client was such a serious threat to the
complaining witness that the judge had to overrule the complaining
witness' own judgment and order him to stay completely away.
Does it make sense? Of course
not. But that's what happens when the system is driven by
fear. Results can be irrational.
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