Category Archives: Domestic Violence

NCO’s & Double Jeopardy

Brett Kavanaugh, Double Jeopardy, And Presidential Pardons

In State v. Madden, the WA Court of Appeals held that a defendant who contacted a person with three separate No-Contact Orders (NCO’s) against him may only be punished for a single count of Violation of a No-Contact Order.

BACKGROUND FACTS 

Mr. Madden Jr. contacted a person with three separate no-contact orders against him. For this single act, the State charged Madden with three counts of Violating a No-Contact Order (DV). The jury found him guilty as charged. Madden appealed on arguments that his three convictions for violation of a no-contact order violated Double Jeopardy principles

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began with the background that Article I, section 9 of the WA State Constitution and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protect against multiple punishments for the same offense.

“When a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act,” said the Court, quoting State v. Mutch.  “It must be manifestly apparent from the record, testimony, and argument that identical charges are based on separate acts.”

Furthermore – and importantly – the Court of defined what a “Unit of Prosecution” was. “Unless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the Rule of Lenity requires a court to resolve ambiguity in favor of one offenses,” said the Court.

Consequently, the Court reasoned that while Mr. Madden violated multiple court orders, he committed only one act constituting a “violation.” The Court further reasoned that the State cites no case in which a court allowed multiple convictions under a single statute based on a single act. Finally, the court reasoned that when a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act. “Any other interpretation would lead to an unconstitutional result.”

With that, the Court of Appeals reversed counts two and three of Madden’s No-Contact Order Violation convictions.

Please read my Legal Guide Defending Against Domestic Violence Charges and contact my office if you, a friend or family member are charged with Domestic Violence crimes, including Assault and/or No-Contact Order Violations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Domestic Violence: The Pandemic Within the Pandemic

Image result for coronavirus domestic violence

Excellent article by Jeffrey Kluger of Time discusses how growing evidence shows the Coronavirus Pandemic has made Domestic Violence more common—and often more severe.

Surveys around the world have shown domestic abuse spiking since January of 2020—jumping markedly year over year compared to the same period in 2019. According to the American Journal of Emergency Medicine and the United Nations group U.N. Women, when the pandemic began, incidents of domestic violence increased 300% in Hubei, China; 25% in Argentina, 30% in Cyprus, 33% in Singapore and 50% in Brazil. The U.K., where calls to domestic violence hotlines have soared since the pandemic hit, was particularly shaken in June by the death of Amy-Leanne Stringfellow, 26, a mother of one and a veteran of the war in Afghanistan, allegedly at the hands of her 45-year-old boyfriend.

In the U.S., the situation is equally troubling, with police departments reporting increases in cities around the country: for example, 18% in San Antonio, 22% in Portland, Ore.; and 10% in New York City, according to the American Journal of Emergency Medicine. One study in the journal Radiology reports that at Brigham and Women’s Hospital in Boston, radiology scans and superficial wounds consistent with domestic abuse from March 11 to May 3 of this year exceeded the totals for the same period in 2018 and 2019 combined.

And as the pandemic has dragged on, so too has the abuse. Just as the disease continues to claim more lives, quarantine-linked domestic violence is claiming more victims—and not just women in heterosexual relationships. Intimate partner violence occurs in same-sex couples at rates equal to or even higher than the rates in opposite sex partners.

What’s more, the economic challenges of the pandemic have hit same-sex couples especially hard, with members of the LGBTQ community likelier to be employed in highly affected industries like education, restaurants, hospitals and retail, according to the Human Rights Campaign Foundation. That means higher stress and, concomitantly, the higher risk that that stress will explode into violence.

Please read my Legal Guide titled Defending Against Domestic Violence Charges and  contact my office if you, a friend or family member are charged with a DV crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Survey Finds Binge Drinking Increased Nearly 20% Every Week of COVID Lockdowns

Study: Binge Drinking Increases With Every Lockdown Week - InsideHook

Apparently, binge drinking increases during Coronavirus lockdowns. According to a survey, adults consume more alcohol when lodged in their homes during coronavirus lockdowns.

Nearly 2,000 Americans over 18 years old completed the online questionnaire. It identified binge drinkers as those who consume five or more drinks within two hours for men and four or more drinks for women within the same period.

The survey found that the odds of consuming heavy amounts of alcohol jumped an extra 19% every week of lockdown.

“Increased time spent at home is a life stressor that impacts drinking and the COVID-19 pandemic may have exacerbated this stress,” ~survey/study author Sitara Weerakoon, an epidemiology PhD candidate at the University of Texas.

On average, every respondent was in lockdown for four weeks, spending 21 hours at home each day, with the majority (72%) working from home. Survey participants’ average age was 42, with the majority being white and female.

The odds of picking up a bottle of booze among binge drinkers were more than double that of regular alcohol consumers — 60% and 28%, respectively, according to the survey.

Binge drinkers also reported downing four drinks per drinking session, sometimes drinking a maximum of seven drinks. Meanwhile, regular alcohol drinkers consumed an average of two drinks per session, often capping out after that second beverage.

The researchers also found that living with children reduced the odds of drinking by 26% for people, in general, the release said.

My opinion? The Coronavirus Pandemic – mixed with the holiday season and the general uncertainty of politics and rampant unemployment – seems to have Americans turning to alcohol. Unfortunately, Domestic Violence and DUI cases tend to rise in situations like these.

Please contact my office if you, a friend or family member face criminal charges and alcohol is a factor. Hiring an experienced and effective criminal defense attorney is the first and best step towards justice.

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Court ruling about shackles puts stress on judicial system | Local ...

In State v. Jackson, the WA Supreme Court held that shackling in court without analyzing whether the shackles are necessary violates the defendant’s constitutional rights.

BACKGROUND FACTS

In 2017, Mr. Jackson,  was charged with assault in the second degree, domestic violence, for strangling his fiancée. At every court appearance, Jackson was forced to wear some form of restraints pursuant to jail policy. The trial court did not engage in any individualized determination of whether restraints were necessary for courtroom safety but, instead, filed a consolidated opinion adopting the jail policy for all superior court appearances for all incarcerated defendants. After a jury found Jackson guilty, he appealed, arguing that his constitutional right to due process was violated when he was forced to wear restraints without an individualized inquiry into their necessity.

The Court of Appeals held that the shackling of Jackson without an individualized inquiry into whether shackles were necessary violated his constitutional rights. However, it also held that this violation was harmless; thus leaving Jackson with a constitutional violation without a remedy.

Both the Prosecutor and Mr. Jackson appealed to the WA Supreme Court. Jackson argued that the Court of Appeals did not apply the constitutional “harmless error test” correctly. The State, on the other hand, cross-petitioned for review of the constitutionality of the use of pretrial restraints.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reviewed the history of defendants wearing pretrial restraints in court:

“The problems in the history of shackling in early America are not limited to the courts and incarcerated individuals . . . The use of shackling as a means of control and oppression, primarily against people of color, has run rampant in the history of this country . . . Shackles and restraints remain an image of the transatlantic slave trade and the systematic abuse and ownership of African persons that has endured long beyond the end of slavery. Shackles and restraints also represent the forced removal of Native people from their homelands through the Trail of Tears and the slave labor of Native people. We recognize that although these atrocities occurred over a century ago, the systemic control of persons of color remains in society, particularly within the criminal justice system.” ~WA Supreme Court

Next, the Court reasoned that under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution, it is well settled that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances.

That said, the WA Supreme Court also mentioned that the right to be free from restraint is not absolute, and trial court judges are vested with the discretion to give measures that implicate courtroom security, including whether to restrain a defendant in some capacity in order to prevent injury.

Next, the court  identified several factors under State v. Hartzog which help a trial court determine if a defendant needs to be shackled:

“The seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ~WA Supreme Court quoting State v. Hartzog

The Court reasoned that a trial court must engage in an individualized inquiry into the use of restraints prior to every court appearance. Furthermore, the State does not meet this burden by simply establishing that no jurors observed the restraints during trial.

“When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary,” said the Court.

With that, the WA Supreme Court reversed the Court of Appeals on harmlessness and remanded for a new trial with instructions that at all stages of court proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary.

My opinion? Good decision. The manner in which the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.

Please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and effective criminal defense attorney is the first and best step towards justice.

Virtual Dating & DV

Behind the Keyboard: Spotting Digital Dating Abuse

What defines a “virtual dating relationship,” especially in today’s age of technology, smart phones, online profiles, dating apps, etc.?

This question is asked quite often. Unfortunately, many people find themselves facing criminal charges before seeking legal advice!

In  C.C. v. J.A.H., a recent and novel case out of the New Jersey Appellate Division, a “dating relationship” under New Jersey’s Prevention of Domestic Violence Act can occur where parties never experienced a traditional, in-person “date.”

BACKGROUND FACTS

The parties met at a gym where the Plaintiff was an employee, and the Defendant a member.  They interacted flirtatiously, and eventually exchanged phone numbers.  This led to a proliferation of text messages between the parties – approximately 1100 text messages over a period of one month.  The Court of Appeals described the text messages as being “exchanged at all hours of the day and night” and as “sexually explicit and suggestive in nature.”  The Appellate Division also found that the Defendant declared his romantic interest during the course of these text messages.

During this period, the parties continued to interact with one another in person (described as “flirtatious” interaction by the Plaintiff), However, both sides agreed that they never went out on a date in the traditional manner.  The Defendant argued they never went on a date.  Accordingly, the Defendant argued, the Plaintiff could not obtain a No Contact Order under the Act.

COURT’S ANALYSIS AND CONCLUSIONS

In short, the New Jersey Appellate Division found that a dating relationship existed.

It characterized the issue as subjective rather than an objective analysis.  It emphasized that although the interactions between these parties may not bear any semblance to “dating” in the eyes of someone perhaps older and with a more traditional view of what it means to date somebody, for the Plaintiff (who was 22 years old), these interactions were part of a normal 21st century dating life.

Ultimately, the sheer volume of the communications and the nature of their content supported the Court’s reasoning:

“[T]he absence of what might be viewed as traditional dating activities and affirmations does not render insignificant the proliferate and exceedingly intimate communications between the parties that underscored their relationship.  Indeed, it is the nature and proliferation of those communications that constituted the parties’ “dating activities” and transformed theirs into a “dating relationship.”

New Jersey is not alone. Indeed, Washington statutes define the term in a manner consistent with the factors that guided the New Jersey Court’s analysis.  In Washington, “Dating relationship” means a social relationship of a romantic nature. Factors that the court may consider in making this determination include: (a) The length of time the relationship has existed; (b) the nature of the relationship; and (c) the frequency of interaction between the parties.

My opinion? This is certainly a cautionary tale. While the law is perhaps notorious for being behind the times, technologically speaking, this decision represents an appropriate understanding of what it means to be in a dating relationship in this day and age and goes a long way to protecting victims of domestic violence who may not have been on any traditional dates, but nevertheless were involved in a dating relationship.

Please contact my office if you, a friend or family member face criminal charges involving Domestic Violence and/or dating relationships. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Victim’s Motive To Testify

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

Decrease in DV Reporting

Audrey McIntosh | Commonwealth Fund

Great article by Denver Pratt of the Bellingham Herald reports that Whatcom County agencies helping domestic violence and child abuse victims say they’ve seen a decrease in DV reporting since the start of the COVID-19 pandemic.

According to Pratt, the agencies say this is a worrying sign, as it likely means victims are isolated with their abusers and are less likely to be able to access help.

Elizabeth Hart, a program manager with Domestic Violence and Sexual Assault Services, said the nonprofit has seen a decrease in the number of calls reported to its 24-hour helpline. Hart said in March they helped 236 clients, as compared to 360 in March of last year.

Hart said the decrease suggests to her that people in abusive situations have a limited ability to reach out for help as Washington is under a “Stay Home, Stay Healthy” order in an attempt to stop the spread of the new coronavirus. Gov. Jay Inslee has extended the order through May 31.

Hart said during a stay-home order, abusive partners have more opportunity to watch and control who their victims talk to and what they do. And as stresses mount in the home, like job loss or having to educate children while schools are closed, the number of abusive incidents could rise or become more dangerous, Hart said.

Ms. Hart also said if a victim loses a job, they can become more financially dependent on their abusive partner, making it harder to leave the abusive relationship. Hart said prior to the global pandemic, financial impacts were one of the main reasons a victim would stay with an abusive partner.

However, false reporting and victim recantations also commonly happen in DV crimes; and are just as likely to exacerbate during these strange and uncertain times.

Please contact my office if you, a friend or family member are charged with Domestic Violence during this “Stay Home, Stay Healthy” period. Hiring an experienced criminal defense attorney is the first and best step towards justice.

COVID-19 Brings DV Crimes?

Officials: Be aware of domestic violence risks as you shelter in ...

Interesting article by Jocelyn Noveck of the Associated Press describes a possible uptick in domestic violence related crimes resulting from couples and families being isolated together by the threat of COVID-19.

According to Ms. Noveck, concern is high in cities everywhere, and meaningful numbers are hard to come by.

“As the world’s families hunker down, there’s another danger, less obvious but just as insidious, that worries advocates and officials: a potential spike in domestic violence as victims spend day and night trapped at home with their abusers, with tensions rising, nowhere to escape, limited or no access to friends or relatives — and no idea when it will end.”

“In some cases, officials worry about a spike in calls, and in others, about a drop in calls, which might indicate that victims cannot find a safe way to reach out for help,” says Noveck.

In Los Angeles, officials have been bracing for a spike in abuse. “When cabin fever sets in, give it a week or two, people get tired of seeing each other and then you might have domestic violence,” said Alex Villanueva, the sheriff of Los Angeles County.

“We started getting on this as soon as soon as we started seeing the handwriting on the wall,” said Patti Giggans, executive director of the nonprofit Peace Over Violence in Los Angeles.

“One of the key challenges of this health pandemic is that home isn’t a safe place for everyone,” said Amanda Pyron, executive director of The Network: Advocating Against Domestic Violence, based in Chicago. “Victims and the abusers have to stay at the scene of the crime.” The group helps run a statewide 24-hour hotline, which has seen a spike in the average number of daily calls, from about 60 to 90, since confinement orders went into effect last weekend.

And at the group Women Safe, there’s been an uptick in calls. One change, said Frederique Martz, who runs the group, is that domestic violence victims are no longer being referred to hospitals which saturated with coronavirus cases.

Please contact my office if you, a friend or family member face criminal charges involving Domestic Violence during these turbulent times. Hiring an experienced criminal defense attorney is the first – and best – step toward achieving justice.

Police Stop Booking Some People Into Whatcom Jail Due To Coronavirus

Image result for walk out of jail free coronavirus

Whatcom County law enforcement agencies stopped booking people into the Whatcom County Jail for certain crimes on Thursday, March 19, due to the coronavirus outbreak.

Apparently, people arrested will be booked and released for everything except certain offenses that represent a serious threat to public safety. Those crimes include domestic violence, violations of a no-contact order, felony DUI, sex offenses, burglary and other violent crimes. Those booked for misdemeanor DUI will be held until sober.

The memo suggests officers arrest, book and release people when they can, giving them notice of when to appear in court. And those who are booked on charges that pose a threat to public safety will be held until they see a judge.

At this point, seven Whatcom County residents have been diagnosed with the respiratory illness, one of whom died, according to the Whatcom County Health Department.

Whatcom County Sheriff Bill Elfo said the measures are looking out for the health of the people who work in the jail, as well as those incarcerated there.

“They’re in place because of some compelling public safety and public health issues. We want to prevent the spread of COVID-19, but do it in a way that doesn’t minimize public safety. We’re still booking and holding violent people. These are temporary measures . . . We’re trying to take the jail population as low as we can safely and reasonably do under the circumstances.” ~Sheriff Bill Elfo

Please contact my office if you, a friend or family member face criminal charges and are jailed indefinitely in the midst of the Coronavirus Pandemic. Obviously, getting released as soon as possible is a major priority. And hiring an experienced attorney is the first and best step toward justice.

State-Created Danger Doctrine and Domestic Violence Victims

The Chilling Inaction on Domestic Violence in Russia is Endangering Women's  Lives | Human Rights Watch

In Martinez v. City of Clovis, the Ninth Circuit Court of Appeals held that police officers investigating a DV crime breached the victim’s Due Process rights by intensifying her peril.

BACKGROUND FACTS

Ms. Martinez was a victim of domestic violence. After reporting an incident to police, the investigating officers took her statement in confidence as to physical and sexual abuse by her boyfriend Mr. Pennington in a hotel and then repeated the substance in the presence of the abuser. That night or the next day, Pennington again attacked Martinez, this time resulting in his arrest. Consequently, Ms. Martinez recanted her accusations out of fear that she would again be attacked. Later, Ms. Martinez sued the investigating officers and the Clovis Police Department.

LEGAL ISSUE

Whether Ms. Martinez can recover damages under 42 U.S.C. § 1983 from the law enforcement officers who allegedly placed her at greater risk of future abuse.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals held that the State-Created Danger Doctrine applies because actions of the police put Martinez in greater jeopardy than if they had not arrived. It reasoned that officer Hershberger told Mr. Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not ‘the right girl’ for him.

“A reasonable jury could find that Hershberger’s disclosure provoked Pennington, and that her disparaging comments emboldened Pennington to believe that he could further abuse Martinez, including by retaliating against her for her testimony, with impunity,” said the Court. “The causal link between Hershberger’s affirmative conduct and the abuse Martinez suffered that night is supported by Martinez’s testimony that Pennington asked Martinez what she had told the officer while he was hitting her.”

“A reasonable jury could find that Pennington felt emboldened to continue his abuse with impunity.”

The Court further reasoned that the State-Created Danger Doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity.

Nevertheless, the Court also decided the officers were entitled to Qualified Immunity because the law with respect to state-created danger doctrine was not clearly established. He added: “Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”

Good opinion. Please contact my office if you, a friend or family member face criminal Domestic Violence allegations. Hiring an effective and competent defense attorney is the first and best step toward justice.