Domestic Violence – often a misnomer

I have written before that domestic violence is one of the most over-charged offenses in Ohio – probably the nation – given politics have corrupted common sense.  What do I mean by this?  Well, the police and prosecutors charge folks with domestic violence when, in reality, no one in their right mind would actually describe the conduct underlying the charge as “violent.” Are they wrong for doing so?  In one sense, yes: a person should not be facing 6 months in jail, a $1,000.00 fine and other collateral consequences for literally pushing their significant other out of the way or poking them in the chest, for example.  Yet, that constitutes domestic violence.  This is a shock to many, which is why innumerable clients’ significant others have begged and pleaded that charges be dropped once cooler heads prevailed.  Does the State listen to the pleas of the “victim”?  Sometimes, but far too often they do not.  In fact, it is not uncommon for prosecutors, detectives, and “victim’s advocates” to actually bully the victim – all in the name of protecting them.   How does this happen?

A common scenario goes like this: husband and wife are arguing, it gets heated, and eventually they start physically struggling in some form or another.  There are no punches thrown, there is no wielding of a weapon, but just pushing and shoving, etc.  No one has any injuries, no medical attention is needed, they are just so upset with each other they can’t stand it.  In effort to stop the arguing, one or both of the participants calls 911 – BIG MISTAKE.  Once the police are involved, the husband is going to jail.  Although both parties do not have any visible injuries to speak of, refuse any medical treatment, if the police are told that there was even the slightest bit of touching, they are going to arrest, period.  Cops don’t show up to not arrest people, that is what they do, especially now that there is a mandatory arrest directive in cases of suspected domestic violence.  It is like asking a a lion to not eat a steak sitting right under its nose, it isn’t going to happen. In short, I hear all the time that the wife “only wanted the police to make him leave for a bit to cool down, or to “come and tell him it is not ok to yell at me.”  But once the police are involved, the victim’s intentions are irrelevant.  The lesson here is that you should not involve the police unless you are actually in fear of suffering violence; do not attempt to use the police to negotiate peace in the home because the husband will be charged. Even if there is no actual injury? Yes.

The reason is that under Ohio law, there doesn’t actually have to be any real harm caused to the “victim.”  Courts routinely hold that the “harm” required by statute can be “slight” or “fleeting.”  In addition, the statute allows a conviction for attempting to cause harm, which means the scenario of a single push will suffice.  This is why I say that domestic violence is often a misnomer, as no person using ordinary language would describe conduct that falls under that statute as “violence.”

To be sure, I have represented plenty of guys that have caused significant injury, significant harm to their wives and girlfriends such that all of use would say he was violent. but the point I am trying to convey is that not all domestic violence cases are created equal.  Just because a guy is charged with domestic violence doesn’t mean he beat the hell out of his wife.  It could mean that he pushed her or poked her in the chest, or attempted to do so.

The state of Ohio, however, sees it all as “violence.”

Forfeiture by wrongdoing – Another method the state uses to violate your right to confront witnesses against you. Also, how many times does your attorney have to actually meet you before the state can put you to death following trial?

While doing some research the other day for a current case, I read the most recent Ohio Supreme Court case on the ages-old doctrine of forfeiture by wrongdoing and boy did it have some, shall we say, interesting “takes” by our esteemed elected justices.  I’ll start with the basics:  every criminal defendant is entitled to confront the witnesses against him at trial.  In other words, if someone provides testimony at your criminal trial, you have the absolute right to cross examine that person.  This is an inviolate right under the 6th Amendment.  Did I say inviolate?  What I should say is that like all constitutional rights, when it gets too much in the way of convictions, courts are going to chip away at it until it barely resembles what the founders envisioned.  Seem harsh?  Well, judges don’t get elected for being soft on crime. Moreover, who would ever believe that the police got the wrong guy?

Anyway, one way to get around the right to confront the witnesses against you is under the common doctrine of forfeiture by wrongdoing.  Under this doctrine, a defendant does not get to cross examine an unavailable witness at trial if that witness’ unavailability is due to the wrongdoing of the defendant.  The classic example is that of a witness who provided out of court hearsay statements to the police, is subsequently threatened by the defendant, and refuses to testify at the trial for fear of reprisal.  In this instance, the state can introduce the hearsay statements from the “unavailable witness,” and the defendant has no means to test the veracity of the statements through the crucible of cross examination.  The theory is that the defendant forfeited his right to confront the witness when he made him or her unavailable through his wrongdoing (i.e. threats).

On its face, this seems fair.  How can you complain that the person is not there to cross examine when it was you that made them unavailable?  The problem, as evidenced by State v.  Mckelton, 148 Ohio St. 3d 261 (2016), is that courts will stretch to make the doctrine applicable.  In McKelton, the defendant was accused of killing his girlfriend (and former defense attorney – same person), and the state convinced the trial judge that her previous out of court statements to nieces, social workers and others regarding the defendant’s violent behavior towards her should be allowed to come at his capital trial because he made her unavailable to testify by killing her.  No, this was not a dying declaration, which is another exception to the hearsay rule.  Rather, the trial court believed that by having killed her, she is now unavailable and her out of court statements are fair game under the forfeiture by wrongdoing doctrine.  Put the cart before the horse much?  Well, the Supreme Court rightly rejected that reasoning, as would any fifth grader struggling to understand basic logic.

So all is good in evidence land?  Not so much.  The Supremes went on to invoke the doctrine for an entirely different reason and ultimately allowed the statements to come in anyway.  According to our high court, the history of domestic violence between the two, along with the defendant’s propensity to try to prohibit the victim from reporting the abuse to authorities, means that he forfeited his right to confront the victim at trial.  Of course, one cannot confront a dead person absent the use of a medium.  So the proper decision would have been to exclude her statements. But that did not happen here.  The money quote in the decision is as follows: “Thus, although Allen (the victim) had not formally contacted police, her nieces testimony indicates that Mckelton was trying to isolate Allen and prevent her from talking to authorities.”  But not about her murder, or any other pending criminal case.  And this is where the court’s analysis fails.

Strangely, the Court seems aware that U.S. Supreme Court precedent “makes clear that the exception will not apply ‘in the typical murder case involving accusatorial statements by the victim’ when the defendant has ’caused a person to be absent’ but did not do[] so to prevent the person from testifying.”   Moreover, the court describes the test for proving this doctrine as requiring (1) the defendant engaged in wrongdoing that caused the witness to be unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable to testify.  None of this was proved by a preponderance of the evidence.

The defendant did not kill the victim in order to prevent her from testifying in any case at any time, period.  He killed her because he was a bad guy and liked to beat up women. Simply put, the test for invocation of the forfeiture by wrongdoing was not met and the supreme court goofed this one.  Had there been a pending DV case and she was killed to prevent her testimony, we have a different result.  However, the court essentially claimed here that “well, you know, he tried to prevent her from reporting domestic violence to the police previously, so we find that he more likely than not killed her to prevent her from testifying” …. at some imaginary proceeding that the justices believed was surely going to come about one day.  This is wrong, wrong, wrong.

And although the court cites other cases in which courts have found that a pattern of domestic violence is relevant to the purpose prong of the forfeiture doctrine analysis, they do not explain with any more clarity just what testimony Mckelton was seeking to prevent, as is the law.  Of course a history of DV would be relevant in determining whether a particular victim is afraid to testify at a trial.  But how can DV be relevant when the victim was never going to testify at any proceeding.  There was no pending case for her to testify at.

Unfortunately, the complete butchering of logic is not the only thing we see in McKelton.  We also learn that your capital defense attorneys need only meet with you twice in order to be considered effective.  They also need not hire a mitigation expert even though the court allocated money to do so.  It is undisputed that Mckelton’s two trial attorneys only met his twice … ever!  We don’t know how long those meetings were, but two seems pretty insufficient to prepare for a death penalty case.  In the end a majority of the court shrugs this off and finds no ineffectiveness of counsel.   The Court doesn’t say that two is the minimum, so perhaps one is okay?  Maybe zero would be alright as long as the attorney shows up for trial and is wearing a suit.  I wonder if the test shouldn’t be whether your attorney can pick you out of a lineup.  My guess after reading Mckelton is that if the underlying facts of the homicide were bad enough, the court wouldn’t make that a requirement.  They might still require you to wear a suit, however.

Reading Mckelton is all types of sadness.  The man comes across as a cold-blooded killer and he probably was.  You feel sorry for those that encountered him. As I was not his attorney, I can say that.  But also saddening is the high court’s complete lack of understanding that stretching the rules to ensure this particular bad guy gets a date with the gurney causes problems for other defendants down the line.  Perhaps some of them will actually be innocent.  Police do make mistakes.  And to sign off on a death sentence where his attorneys unsuccessfully tried to withdraw from the case only to be “forced” to continue to represent him, only met with his two times in preparation of his death trial, and failed to even hire a mitigation expert, is pretty cold-blooded too.

 

 

The Perils Of Pleading No Contest, Part II

I previously authored an article about the need to fully appreciate exactly what the consequences are of pleading no contest.  I will reiterate that there are very valid and sometimes necessary reasons for doing so.  However, sometimes the appellate court will slap you down for it.  Another instance of this can be found in State v. House, 2014-Ohio-138.

House had been charged with, among other crimes, murder and felonious assault.  In his defense, House wished to pursue a not guilty by reason of insanity defense (NGRI).  House planned to argue that due to suffering from PTSD, he was incapable of fully understanding the wrongfulness of his actions at the time of the murder.   House was referred for two separate mental health evaluations and each expert report concluded that House was competent to stand trial and that he was sane at the time of the murder.  Based upon these evaluations, the state filed a “motion in limine” requesting the trial court issue a ruling precluding House from introducing any evidence regarding his PTSD at the trial.   The state’s argument was that because the experts determined his PTSD did not affect his sanity at the time of the murder, any evidence regarding his PTSD was wholly irrelevant to the issues at hand.

A motion in limine is a preliminary ruling from the court prior to the start of trial and usually related to evidentiary issues.  “In limine” translates roughly into “at the threshold.” The purpose of the motion is to obtain an early determination regarding some contested evidence issue so that all parties are on notice as to how the court is planning to rule during trial.  This allows both sides to properly prepare their evidence, arguments and theories of the case.  However, a preliminary order by the court is just that, preliminary.  It is not binding on the court and the judge can change his or her mind during the trial.  Therefore, if a party believes that the court’s preliminary order excluding evidence is wrong, the party must still attempt to introduce the evidence at trial and have the court actually exclude it in order to preserve it for appeal.  Otherwise the party really never suffered any prejudice because, in theory, the court might have allowed the evidence to be introduced but the proponent never attempted to do so.  Although its unlikely the court would have changed its mind, without attempting to use the evidence, no one will ever truly know.

The trial court granted the state’s motion in limine and preliminarily ruled that he was prohibited from introducing any evidence regarding his PTSD and that he was not permitted to pursue a NGRI defense without any expert testimony.  Following these decisions, House waived his right to a jury trial and a bench trial commenced.  After the first day of trial, House withdrew his former plea of not guilty and entered a no contest plea.  He then appealed the trial court’s rulings that he was not permitted to introduce evidence regarding PTSD and not permitted to pursue a NGRI defense without expert testimony.  This seems like something that perhaps the court of appeals so decide, right?  Well, maybe, but the appellate court did not in this case.  Why? because House had waived his right to object to the preliminary rulings when he pleaded no contest.

The court noted that “[a]n evidential ruling, prospective or otherwise, is never final until the trial in completed [.]”  There is nothing in the opinion that shows House attempted to introduce the evidence at trial, but even if he had done so, the fact that he pleaded no contest mid-trial precluded appellate review.  Citing a few earlier opinions, the court reasoned that to allow an appellate court to review evidentiary rulings for a trial that was cut-short by defendant’s change of plea would provide the defendant an unfair advantage.  The Second District quoted a Sixth District opinion in stating, [t]o allow a defendant to plead no contest immediately following an adverse evidentiary ruling and then appeal that ruling, would be to permit a defendant to interrupt his trial any time to pass questions as to the admissibility of evidence on to the court of appeals in the hope of prevailing and having the opportunity to start his trial over again.”

The end result is that if your case involves an adverse evidentiary ruling, you will need to finish the trial to preserve the issue for appeal.  It should be noted that this does not effect the ability to appeal the denial of a motion to suppress after pleading no contest.  When a court overrules a motion to suppress evidence, that is considered a final order of the court.  In contrast, preliminary orders in limine and rulings during a trial are not final and cannot be appealed unless you finish the trial.

Just one more nuance to pay attention to when considering whether to plead no contest.

Destroying A System of Pleas

In both Missouri v. Frye and Lafler v. Cooper, the United States Supreme Court correctly recognized that “criminal justice today is for the most part a system of pleas, not a system of trials.”  These cases each dealt with the question as to what extent ineffective assistance of counsel claims could be recognized in the context of a plea bargain.  In holding in Lafler that defendants are entitled to the effective assistance of counsel when negotiating pleas (even if the the defendant ultimately goes to trial and receives effective assistance during that part of the representation) the court understood that negotiating a good plea agreement has become one of the most important attributes of a criminal defense lawyer.  Over 90% of all criminal cases are resolved through a plea agreement, so attorneys that fail to adequately assess a case and competently advise a client as to whether to accept or reject a plea offer is tremendously important.

However, our system of pleas is not necessarily fair even with the best representation.  Sure, defendants get the benefit of reduced charges and prison time, and the state gets to save some money, time, and effort.  But the two sides are hardly negotiating at arms length as is the case in other forms of negotiation. The state holds the hammer.  One of the more egregious parts of the system is the decision of prosecutors to overcharge defendants in order to force them into accepting pleas.  Instead of charging a defendant with only the most pertinent offenses, based upon the defendant’s actual conduct, the state often “stacks” any and all conceivable charges into an indictment so that defendants are looking at a very, very long time in prison if they do not prevail at trial.  Further, there is the dreaded “trial tax.”

While it is actually unconstitutional for a court to punish a defendant for exercising his or her constitutional right to a jury trial, the trial tax is very much real.  Make no mistake about it, a defendant that chooses to go to trial is most likely going to receive a much stiffer sentence if found guilty than he otherwise would have received had he entered a guilty plea.  So, in short, prosecutors, who are imbued with unfettered discretion to charge a defendant with whatever crimes strike their fancy, have effectively been able to make trials largely disappear.  Is that a good thing?  Of course not, but until there are reforms, those of us that practice criminal law are going to have to deal with it.

How does the system get fixed?  Legislatures aren’t taking crimes off the books.  In fact, more and more criminal offenses are past every year.  Politicians don’t get reelected by not passing laws so they can claim to be “tough on crime.”  The prosecutor’s tool box of possible crimes to charge is only getting larger and larger.  So there must be a different approach to reform if fairness is to creep into our “system of pleas.”  Many organizations have proposed reforms, and the newest entity to throw its hat into the ring is Human Rights Watch.

In a lengthy report, “An Offer You Can’t Refuse,”, HRW reiterates many of the concerns and complaints that criminal defense attorneys have shouted a thousand times over.   The report opens with offering some interesting vignettes before addressing the root of the problems plaguing our system of pleas and concludes with advocating some specific reforms.  While the report is focused on the federal system and its treatment of drug offenses, many of the issues highlighted are equally applicable to state laws.  I’m not aware of any state in our union that has retained a “system of trials.”

The specific reforms directed to the Attorney General include:

  • “Establish just sentences as a Department of Justice goal for all drug offenders regardless of whether they plead guilty or go to trial. Define just sentences as those which are proportionate to the defendant’s individual conduct and culpability and which are no longer than necessary to further the purposes of punishment in each individual case.
  • Direct prosecutors to seek indictments only for charges that would yield a fair and proportionate sentence for each individual defendant in light of the facts known about that defendant. If an offense carrying a fair sentence has been charged, prosecutors may offer a modest sentencing benefit to reward a defendant for pleading guilty, but should not offer to reduce the defendant’s sentence to such an extent as to coerce the defendant into waiving the right to trial.  We urge the Department of Justice to establish parameters for what such a modest reward might be. In addition, the Department of Justice should explicitly prohibit prosecutors from: 1) threatening higher sentences to secure pleas from drug defendants and 2) filing superseding indictments that raise the sentence faced by a defendant solely because the defendant refused to plead guilty.”

As other commentators have pointed out, while the report’s recommendations are a well-meaning attempt to revive the dying trial, it would likely work against the interests of defendants in practice.  Specifically, the trial tax will still be ever present.  And by not allowing prosecutors to offer anything more than a “modest reduction,” defendants would be deprived of the one benefit they do get in our system of pleas – the opportunity for significantly reduced sentences.  Most judges are still going to hammer a defendant for going to trial.

Trials will still clog the docket and “waste resources” in the eyes of the guy in the black robe.  So if the huge disincentive to proceed to trial is still very much alive, then the proposed reforms will only lengthen the sentences for defendants in the end.  Defendants will have to choose between “modest reductions” or the trial tax.

The only real way to resuscitate the trial is to do away with the trial tax.  If a defendant were not penalized for exercising his constitutional right to have a jury of his peers determine whether he is guilty or not, we’d have more trials.  It’s that simple.  Unfortunately, there is not a viable way to end the trial tax.  As long as judges sentence within the bounds of the statutory amounts, appellate courts won’t find error, even if it is readily apparent that the court penalized the guy for fighting for an acquittal.  So where does this leave us?  In a system of pleas, with the occasional trial, and no real solution to the existing problem. One day we might get somewhere.