A federal judge on vacation was released on bail after being represented by the public defender’s office at his initial appearance for domestic battery this weekend. Beyond the fact that any judge – particularly a federal judge – should have the means and wherewithal to hire his own lawyer; one wonders what special treatment this judge is apt to receive.
Judge Kicks Justice
Although every accused judge is entitled to be presumed innocent until proven guilty, public records found by the Atlanta Constitution establish that this is not the judge’s first time being targeted with the allegation of domestic battery though apparently it is his first battery or assault arrest. Perhaps he is not in the habit of battering each of his Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached wives, but at least one former wife claims he battered her as well.
I suppose the principle of law here should be that federal judges are more equal than others as the notion that all of us are equal under the law is rather quaint. Is it really possible in the American criminal justice system that a federal judge will be treated no differently than any other defendant charged with domestic battery? Will he be forced to commit himself to psychological counseling? Will he be told to have no communication with the victim, his wife? Well, as a matter of fact, there was no condition in the bail to keep him away from the victim only a condition “to not have violent contact” with her.
Should the judge spend his next vacation here in Clearwater, Florida as we all hope he will, he’ll find that we have a special domestic battery court. But after arrest, first he’ll have to deal with the typical Pinellas County bond requirements which include having no contact whatsoever with the victim, meaning no emails to her, no phone conversations and of course no co-habitation even if children are involved. Maybe the law in Georgia is vastly different, but it does make one wonder why the federal judge merely has to have no violent contact with his favorite victim?
Although the idea of the Pinellas domestic battery court to identify batterers and provide psychological remedies to prevent assaults and batteries is laudable, too often the presumption of innocence is turned on its head when those arrested are presumed guilty and forced to either accept the gentle offer of treatment laced with possible dismissal of the charges or face time in jail if convicted. Should the judge choose Florida for his next vacation I am prepared to provide him with a federal judge criminal law discount should he decide to hire a private Clearwater criminal defense attorney rather than depend upon the stressed public defender system. He may need special help as under federal law any domestic battery is counted as a violent offense. Since the discount applies to former federal judges, perhaps he’ll take this into consideration for what course his life should take in the future. Clearly this man should resign his position of trust; if not, he should be impeached as he’s not fit to sit in judgment of others.
Lately criminal law has been swamped with specialized courts to handle defendant’s with special needs. It began with juvenile courts, then moved on to drug courts, where one Florida judge will even bake cakes for Defendants to help them stop abusing drugs.
Now in Tampa Bay and Florida on an experimental basis one can find mental health courts, domestic violence courts, combat veterans courts and my favorite – watching a few boisterous judges and lawyers firing salvos while ambling around tennis courts.
|Let Defendant’s Eat Cake
The idea behind these courts is commendable. Find the root cause of the criminal behavior. Push the defendant to accept responsibility for the criminal behavior by offering a plea agreement that is too good to pass up. Often a plea bargain may not include much, if any, time in prison. Instead there is a carrot or to be more exact a carrot cake and stick approach. Help if offered thru counseling, therapy, medication during long years of probation with frequent, expected and unfortunate probation violations each of which forces the defendant to remember how close prison may be.
The key is having an effective, sympathetic judge who really cares about the lives of those before her and who aims to make a difference in those lives not only by punishment by helping the defendants to make actual changes in their lives. A fine example of how this should work can be found in the Pinellas Drug Court courtroom of Judge Dee Ana Farnell who celebrates with cake, cookies and ice cream she brings for defendants and their families when some of her defendants are finally taken off probation. Remarkable. It’s exactly the kind of forward thinking that the criminal court system needs.
Yet, I’m not inclined to believe that specialized courts are the complete answer. Rather than merely categorize and subdivide particular groups and subgroups of defendants, why not try to help each and every one of them? Even those, perhaps especially those who have committed a violent crime? Wouldn’t it be worth while to ferret out the root causes of each criminal act. And where the causes are intractable, then give prison. Where the problems are solvable, then solve them.
What Judge Farnell is doing in drug court, is what every judge should be aspiring to do at every level. Temper punishment with help. Find the root of the criminal conduct. Then send the defendant to prison if you must for those defendants who can not or will not be helped. But for those who can be helped find brave judges who aren’t afraid to show mercy, temperance, compassion, understanding; judges who are ready to bake cakes for defendants in celebration of the best results.
In Florida prosecutors may elect to file charges against a defendant even when the victim does not want to prosecute. This is true because Florida views itself as a victim whenever a crime has been committed. But in a typical criminal case the expectation is that the state of Florida will give great weight to a victim’s desire to prosecute or to not prosecute.
Sometimes the weight given to a victim’s wishes can be abused by the victim, representatives of the victim or the victim’s family when a decision to prosecute is needlessly delayed or retracted. This is a recurring problem in allegations of sexual assault, sexual battery, rape and domestic violence. During the course of the investigation of a defendant the victim will be asked if he or she wants to purse a prosecution, because once an arrest is made and the charges are filed by the state attorney’s office the lives of the defendant and victim are forever changed.
In many of these cases there may exist little evidence other than the testimony of the victim. In these cases it’s important for prosecutors to take into account the following factors before filing a criminal charge against a defendant:
1. To gauge the willingness of the victim to testify.
2. To verify the honesty of the victim’s statements made at the time of the report of the alleged assault. Is the statements consistent within itself? For example, did the victim give correct information about the height, weight and hair of the defendant and if not, why not?
3. To determine if the victim has made any other statements which are inconsistent.
4. To find if social media or email has information which contradicts the victim’s assertions.
5. To compare and contrast any physical evidence such as DNA with any other evidence of unlawful force such as the defendant’s skin under the fingernails of the victim.
6. To find any accounts of other witnesses who may have observed the victim’s demeanor before or after the alleged assault. Was the victim laughing, crying, yelling, happy or sad?
7. To review the results of any toxicology reports to determine if the victim was impaired. Was the victim under the influence of drugs or alcohol to the extent that the victim could no longer make informed decisions?
8. To establish that the victim has no mercenary nor financial interest in the outcome of the case. For example, in a recent case involving an FSU football player the alleged victim appears to be represented by a personal injury lawyer who police claim placed herself between the police investigation and the victim, which if true is one of the oddest things as a former prosecutor and as a defense lawyer I’ve ever observed.
Effective law enforcement officers and prosecutors understand that the emotional and physical trauma suffered by many victims will not be healed with a prosecution. Further, they understand that filing a case if the victim is unreliable will only result in a not guilty verdict and ruined lives for not only the defendant but also for the victim.
Clearwater criminal defense attorneys are often asked if a victim has the right to stop a criminal case from proceeding in the State of Florida.
Here’s a typical question I recently received from a man charged with Domestic Violence against his wife.
My wife signed a request not to prosecute two days after I was arrested by the Pinellas County Sheriff’s Department. Since my wife no longer wants to proceed against me on the domestic battery case, how can the state still prosecute me?
Neither of us was even injured. They arrested me because I admitted spitting on her during a heated argument before she called the police. My employer will not let me go back into work until this case is resolved without a conviction. What can I do to get these charges dropped?
The law in Florida forces officers on the scene of an established domestic violence case to make an arrest even if the victim does not want to prosecute.
But could mere spitting (Oops! Sorry, didn’t mean for that spray to hit you as I speak.) really be a criminal act? Any unwanted intentional touching of one person against the will of another person is a battery. Spitting is considered an unwanted touching. When the husband admitted that he spit on his wife, he gave the Tampa Bay investigating officers reason to believe that he’d committed a domestic violence battery.
Here the victim by signing a request not to prosecute has unambiguously demonstrated to prosecutors that she does not want to move forward with this prosecution. Yet the State of Florida presumes that Florida itself is also a victim in every criminal case. In a sense it must be because it is the State of Florida that pursues or fails to pursue every criminal case even those such as drug crimes which have no apparent victim.
Therefore law enforcement is not prohibited from prosecuting any Defendant just because the person who was harmed does not want to prosecute. However, a smart prosecutor who understands that he may have to prove the case at trial will take the request not to prosecute into consideration with other facts and circumstances of the case. An effective Tampa Bay Defense Lawyer will do everything possible to persuade prosecutors that this nonviolent act should be dismissed, because the shameful arrest itself has served as a sufficient punishment and deterrent.
Your favorite Clearwater Criminal Defense Lawyer always assumed that good looking people have a better chance of being acquitted in Criminal jury trials.
That’s why before every trial I always suggest the Defendant take a good hot bath at least a week before the trial is set to begin; after all as Andy Warhol suggested, “the best look is a good, clean look.”
|da Vinci, Innocent or Guilty?
But what about those unfortunate folks who are clean, possibly even innocent, but not good looking. Is a jury more likely to convict them just because they’re beautifully challenged?
A recent counterintuitive study establishes that the opposite is true.
In the study it was the most beautiful women who were least likely to be believed by jurors when accused of murdering their husbands. So no more baths for my clients!
Here’s an excerpt from the study:
The results showed that a defendant’s physical attractiveness increased the perception of the defendant´s responsibility in committing the crime; and an interaction between prototypicality and attractiveness in assigning credibility to the defendant´s testimony. Moreover, hostile sexism mediated the relationship between the defendant´s prototypicality and controllability.
In a recent, possibly notorious Tampa Bay, Florida case a defense lawyer suggested at sentencing that his beautiful blonde client, a teacher accused of having sex with her fifteen year old student was, “too beautiful to go to prison,” as if prison were somehow a place only for ugly women who failed in their debutante debut.
Perhaps the lawyer was smart to plead, after all the Judge gave probation where many other indifferent looking defendants charged with having sexual battery still sit rotting in jail, in fact in Florida many Defendants spend significant time in prison for crimes involving minors despite never touching a child improperly.
And maybe it was smart to not let the case go to a jury, where there could have been bias, but a bias to not believe her, to convict her because of her looks. There’s at least one Clearwater criminal defense attorney in Tampa Bay, Florida who believes the lives of every person, yes even the ugly, are too beautiful to be ruined by prison.
Your favorite Clearwater criminal defense lawyer was recently asked this question about domestic violence:
I was arrested for a Battery against my girlfriend in Tampa Bay, Florida. We were both fighting not just me. We have a child together. We were going to get married, but put it off until this is behind us. She has signed a Request Not to Prosecute. I’m wondering if the State of Florida decides not to prosecute me can they still bring the charges back up in the future if she changes her mind and wants me prosecuted? How long do I have to wait to be certain that charges won’t be filed? If charges are filed against me what will happen?
|Reza Abbasi, Two Lovers, 1630
The first consideration for law enforcement is the safety of your girlfriend as well as the child. Under Florida law whenever domestic violence is alleged, officers by law must make an arrest of someone in the home if any evidence of a battery or assault is found. Why was this enacted?
Because more officers are killed while investigating domestic violence than in any other type of investigation they undertake.
Think about that, more than in burglaries, robberies and grand thefts. When officers are called to any domestic violence situation they are well aware of the risks as well as the fact that domestic violence affects a large portion of the American population.
Recent domestic violence statistics establish that the problem is pervasive with nearly 25% of women and 7% of men being the victim of an assault or battery by a spouse, co-habitating partner or date.
When any crime is committed in Florida, the State of Florida views itself as being an interested party. In practice this means that even when a victim does not want to prosecute a case, the State of Florida can proceed with prosecution. Other than the statute of limitations there is no legal limit to how long prosecutors can take to make a filing decision.
If charges are filed against you and if you don’t have any prior criminal record, then you may be able to apply for a diversionary program such as Pretrial Intervention where the charges will eventually be dismissed. Tampa Bay recently established a new Domestic Violence Court in Pinellas where the focus will include counseling with Batterer Intervention Programs rather than simply giving jail.
Local activists against domestic violence and sexual violence will help plan a new special Domestic Violence Pinellas County Court in Clearwater, Florida next year which will not only take in criminal cases but also be able to track and assign immediate injunctions for protection and restraining orders to protect victims.
Money is also being allocated to ‘train’ Pinellas Judges to give sentences of jail or probation which includes completing successfully Pinellas Batterer Intervention Programs which entail six month group counseling sessions led by certified facilitators – who one assumes must go to work not only with a thick skin but perhaps shrouded within a suit of armor.
The mere allegation of abuse should not be sufficient to bring criminal charges tho unfortunately this is not always true, if you’ve been falsely accused, arrested, charged or investigated it’s necessary to contact a Pinellas domestic violence attorney to defend your rights and to conduct a complete investigation of the facts for your criminal defense.
The trend seems to be that every type of crime will one day have its own specialized Court with its own specialist Judge dealing only with the issues resulting from that type of crime. The Pinellas Drug Court has been a success as noted previously in this criminal defense blog and here, but drugs are a victimless crime.
It’s important to keep in mind that every crime even a repugnant or heinous crime such as the arrest for domestic violence must be proven in Florida by a reasonable doubt if the facts are in dispute.
741.28 Domestic violence; definitions.—As used in ss. 741.28–741.31:
(1) “Department” means the Florida Department of Law Enforcement.
(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
Be careful with that Pitchfork, Fella – or you’ll be sent to the Pinellas Domestic Violence Court.
|American Gothic by Grant Wood, 1930.