Nedlin: The domestic violence freightrain
October 3, 2013
We left off last time with the advisement in front of the court and the issuance of the mandatory protection order ("What follows after a domestic-violence arrest," Aug. 11, The Aspen Times).
Let's fast-forward a couple of weeks or so where you will find yourself back in front of the court for your first appearance. This is where you first may ask the court for a modification of the mandatory protection order. For instance, if you wish to have contact with the alleged victim, this is your opportunity ask the court, although the victim must also be agreeable to the contact. Logistically, it can be a bit of a problem for pro se defendants — these representing themselves — to coordinate and find out if the victim is amenable to a modification since there is no contact allowed, not even via a third party. Assuming that the victim is in court, the defendant may ask to modify the mandatory protection order for contact.
The contact can either be in the form of text, email, phone, in person and even cohabitation. The court will then ask the victim if they wish to have contact and in what manner. In most cases, the defendant is represented by an attorney and has already spoken with the victim, so the whole process has been orchestrated and there are usually no surprises. However, in some instances the victim is asking for the modification to allow contact and it is the defendant who wishes for the "no contact" provision to remain in place.
In determining whether to grant the modification, the judge is making risk assessments based on any prior offenses, severity of the offense, and the living situation among other variables. As part of any modification, the victim must obtain a safety plan, by meeting with a victim's advocate and setting in writing a course of conduct that will be followed in case of any trouble that may arise. Additionally, in Pitkin County, the judge usually asks for both defendant and that victim to attend three independent counseling sessions.
If both the safety plan and counseling sessions are not completed, the judge will rescind the modifications and put the mandatory protection order back to its original form. Other modifications are to allow for possession and consumption of alcohol. From my experience, 90 percent of domestic violence cases involve alcohol or drugs, and the no-alcohol provision most often is put into place. However, if the defendant works in a field where he or she must possess alcohol (bartender, for example) or consume alcohol for work (sommelier, alcohol distributor), the court will allow for alcohol consumption in moderation. Essentially what that means is that the defender can drink but not become intoxicated or have a blood-alcohol content exceeding 0.08.
As an alleged victim of domestic violence, you will be kept informed of the case by a victim-witness coordinator who works for the district attorney's office. The job of this individual is to keep all victims apprised of court dates, explain the court process and also help in submitting paperwork to the crime victim's compensation fund. This fund recompenses those who have been physically or emotionally injured as the result of a crime. These individuals may also be eligible for compensation for financial losses; and losses directly related to the compensable crimes are eligible for reimbursement and may include: medical expenses, mental health expenses, lost wages and loss of support to dependents.
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Many victims are under the mistaken belief that they have the power either to go forward with a charge or have a charge dismissed. However, this could not be any further from the truth. The person in control is the prosecutor. He or she will listen to your desires and wishes. However, if you strongly want to have a charge dismissed and the prosecutor's office wants to go forward, you are now, unfortunately, along for the ride.
In my experience, many victims claimed that they called the police just to "scare" their intimate partner, not realizing that they have just set a proverbial "freight train" in motion that cannot be stopped. Additionally, many victims feel that the prosecutor is "their" attorney. This also could not be any further from the truth. Most often, the victim is an instrument that will enable the prosecution to help prove its case as many times that individual is the only witness to the event. Therefore, without that essential witness, the case goes down the drain.
It is not uncommon that once victims realizes their purpose and role in the case, there tends to be animosity and frustration between the victim and the district attorney's office, followed by a reluctance to participate.
If a victim then comes forward stating that they made up the whole story or that their initial statements were false, in order to remove themselves from participating, a prosecutor will educate them as to the seriousness of false reporting and perhaps the threat of a potential prosecution. It is quite often that a victim will hire their own attorney to help guide them through the maze and confusion of being in their position while at the same time protecting their constitutional rights. Many times a victim going through the court process feels revictimized from the court process itself.
Next month, I will discuss the different types of possible plea agreements and the consequences that go along with a domestic-violence plea.
Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and Richard@nedinlaw.com.