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October 12, 2011

Minor Domestic Violence Cases Overwhelms Topeka Kansas Courts - They Stop Prosecuting Them!

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Overwhelmed by hundreds of "minor" domestic violence cases, nearly half of Shawnee County's misdemeanors are domestic battery cases... the county has said enough.

Domestic abuse prosecutions had increased over the last three years with no additional funding.

Here is where trhe rubber hits the road when it comes to "political correctness."

I have either prosecuted or defended Colorado Domestic Violence cases for over 28 years. Back when they were treated like all other cases - (where law enforcement was allowed to decide which cases needed to be prosecuted and which cases should result in mediation and detoxification ) -- the police and the courts could cope.

Today - in Colorado and across the United States - as a result of powerful feminist influence over state and local legislatures - mandatory arrest policies and no drop policies are clogging the courts with unnecessary prosecutions -- and most often - the "alleged victims" of these cases do NOT WANT government in their and their families' lives.

In the city of Topeka -- which had a misdemeanor domestic battery law - they could no longer afford to prosecute these cases.

So - guess what -- the City Council members rescinded the domestic battery law.

Now the cases are prosecuted soley in the Kansas state courts under state domestic battery laws.

Of course -- the cry of the feminist lobbyists was heard far and wide.

"I absolutely do not understand it," said Rita Smith, executive director of the National Coalition Against Domestic Violence, in the Star's report. "It's really outrageous that they're playing with family safety to see who blinks first. People could die while they're waiting to straighten this out."

In these times of budget cuts and limited government resources -- I am hopeful that Colorado governmental agencies will follow Topeka's lead and restore the decision to arrest in these cases to those in the best position to exercise that discretion -- the cop on the beat .. who is - as Dennis Hybert puts it on The Unit -- the man on the ground. H. Michael

Posted by H. Michael Steinberg | | Email This Post

August 17, 2011

Colorado Criminal Law - Domestic Violence in the Teen Years - Teen on Teen - Explodes

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A new study by the Center for Disease Control has found that nearly 10 percent of U.S. high school students report being hit, slapped or physically hurt by their boyfriend or girlfriend in the past year.

That means that one in four teenagers is suffering at the hands of an abuser. If these crimes are reported - and prosecuted outside of dedicated juvenile court systems ( many cities do not have separate family courts - set up tp protect teenagers from their own immaturity) - it can mean a permanent criminal history that can follow the individual throughout their lives.

The victimization is not just physical - sometimes teens can be victimized through technology or through other forms of emotional abuse.

"People I've talked to think teen dating violence is all about bruises. It's not just about bruises. You can't see emotional abuse," says one teen at BeSmartBeWell.com/Domestic-Violence. "Teen dating abuse is just like domestic violence," says Chicago Police Department's Domestic Violence Liaison Officer Claretha Cross featured on the website. "It's abuse designed to maintain and gain power and control over another person.

H. Michael's Take

I strongly suggest that parents visit the site referenced above and do some reading to educate themselves as to the warning signs in this area and to prevent the abuse and potential for a criminal case filing of charges.
____________________________

H. Michael Steinberg Esq.
Attorney and Counselor at Law

The Colorado Criminal Defense Law Firm of
H. Michael Steinberg

A Denver, Colorado Lawyer Focused Exclusively
On Colorado Criminal Law For Over 26 Years.

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E-Mail: hmsteinberg@hotmail.com

Primary Web Site: www.HMichaelSteinberg.com

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Main: 303.627.7777
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Always investigate a lawyer's qualifications and experience
before making a decision to retain that lawyer or, for that matter,
any professional ... in any field.

Posted by H. Michael Steinberg | | Email This Post

August 10, 2011

The So Called "Secure Communities" Program Has Unintended Consequences for the Victims of Illegal Domestic Violence Arrests

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A relatively new Department of Homeland Security's (DHS) Program called "Secure Communities" is having an unintended impact and should be stopped.

Several states have sought to withdraw from the program because the program "traps" unintended victims of false domestic violence arrests in its grasp.

The Program compels the recording of the fingerprints of everyone booked into local police custody -- even if they have been the subject of illegal or wrongful arrests such is often the case in Colorado for misdemeanor domestic violence charges.

In many of these cases the police are compelled to dismiss the charges - however the fingerprints are still forwarded to DHS to check the falsely arrested person's immigration status.

Many times the VICTIMS of domestic violence are wrongfully arrested by the police - who cannot decide whom to charge. Often the wrong person is arrested leaving it up to the DA to decide what to do with the case.

"One such person was Isaura Garcia is a 20-year-old mother living in Los Angeles who endured three years of domestic violence before calling 911, seeking protection from her abusive boyfriend. After the police arrived, they questioned her about her immigration status, then arrested her and sent her fingerprints to federal immigration authorities. Stunned, Isaura fainted. At the hospital, a doctor found bruises on her body and identified her as a victim of domestic violence, and no charges were filed against her."

Simply because she had been arrested, Isaura's fingerprints were submitted to immigration officials and she was placed into deportation proceedings. Immigration and Customs Enforcement (ICE) only terminated her proceedings after the ACLU of Southern California drew public attention to her case.

The program had fundamentally good goals when it was started in 2008, Secure Communities was billed as program aimed at deporting "serious criminal offenders."

Now, four years in, ICE's own statistics show this is far from the truth. The majority of people deported under the program since its inception -- 60 percent -- have had only misdemeanor convictions (such as traffic violations or municipal code violations), or have done nothing wrong at all.

There has been widespread opposition to the program from across the political spectrum.

The result has been a built in disincentive to contact the police by a population that needs to build more trust with law enforcement. The program - as one blogger put it "undermines public safety by deterring immigrants from contacting local police when they are victims or witnesses of crime.

In short - this program - like many other Governmental programs meant well - and has - as the most recent television program puts - "Broke Bad."


Posted by H. Michael Steinberg | | Email This Post

March 28, 2011

CNN Points Out Danger in Using Jail Phone in Domestic Violence Cases

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This weekend, CNN did an excellent report demonstrating the dangers in using the jail phone - which records every conversation - in the context of weak domestic violence cases.
The article and braodcast was entitled Recorded calls keep inmates locked up

The gist of the report was simple... do NOT use the jail phone to talk to ANYONE about your case!

The why - is obvious -- domestic violence cases are defensible.. the alleged victim admits she lied -- or refuses to cooperate - or believes that a prosecution is not what she wants. The system continues to roll over the relationship - often resulting in the destruction of that relationship. This is exactly what the alleged victim does NOT want.

In weak domestic violence cases, the DA will "mine" these recorded calls looking for evidence of violations of no contact orders. intimidation of a witness, or tampering with witnesses. The latter two crimes are usually filed as new felony cases.

Despite repeated warnings posted on the walls of the jail - by the phone - by family and friends and by their attorneys - remarkably - those accused of domestic violence continue to make this terrible mistake.

Here is an excerpt from the article:

Amazingly, detainees keep calling from jail despite posted signs warning that their calls are being recorded. A taped messageat the start of each call also reminds them of monitoring. Some detainees use the phone as many as five times a day. Authorities estimate some inmates make hundreds of calls while waiting for their cases to come up.

"I guess they feel that in tens of thousands (of calls), theirs might be the one that doesn't get listened to, but all inmate calls are recorded," says Andrea Hall, who directs the intelligence unit for New York City's Department of Corrections.

Some detainees aren't exactly Einsteins.

Kessler says one man who apparently knew he was being monitored warned someone on the other end to speak in Spanish, thinking they wouldn't be understood. "We had one (mother) who said to her son, 'They may be listening.' And his response was 'Mom, they don't have time for this.' "

Yes, actually, they do. At the district attorney's office, prosecutors wearing headphones listen to hour after hour of admissible recordings. Calls to attorneys and clergy are exempt"

If you are in jail and you are accused of ANY crime PLEASE do NOT speak to anyone about your case except your lawyer!

Here is a link to help you understand the crimes of Tampering or Intimindation of a witness in Colorado:


Posted by H. Michael Steinberg | | Email This Post

February 6, 2011

False Allegations in California Case Illustrate Danger of Untested Domestic Violence "Allegations"

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On the heels of a young man's challenge to the custody of his child, a young woman in California complained - and the District Attorney's office charged - a felony domestic violence assault for allegedly smashing the victims head into a wall several times and threatening to kill she and her child.

As often happens in these cases, neither the prosecutor nor the police truly 'tested" or "grilled" the victim about her story before taking the case to trial. On the witness stand, the "victim" changed her story several times. The District Attorney, embarrassed at the false charges and the woman's complete lack of credibility, dismissed the charges two weeks into the trial.

It was too late, the accused, a 24 year old kitchen manager - already had lost everything -his job and his reputation. He demanded a trial - even though he was facing 5 years in prison - yes he was vindicated by a jury that actually clapped when the case was dismissed by the DA.

It is unknown in this recent case - February 2011 - whether the young lady was charged with making false charges. She should face the kind of fear and anxiety the Defendant felt.

H. Michael's Take:

The kind of travesty of justice that this case represents barely touches the surface of the problem of the overreaction of law enforcement to uncorroborated allegations of sex assault or domestic violence by an individual without "testing" the truth of the story - well before the case goes to trial.

http://www.colorado-domestic-violence-lawyer.com/Domestic_Violence_and_False_Allegations_of_Child_Abuse.html



Posted by H. Michael Steinberg | | Email This Post

January 27, 2011

UK Crosses The Line In Escalating The Crimes of Domestic Violence -- Colorado Not There Yet

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Criticizing partner, denying them money and shouting is domestic abuse, in UK court

BRITAIN'S Supreme Court has ruled that shouting constitutes as domestic violence and anyone who raises their voice at their partner could be thrown out of their home, the Daily Mail reported Thursday.

Leading a bench of five judges, Lady Brenda Hale made the ruling in the case of Mihret Yemshaw, 35, who had applied for free housing entitled to victims of domestic abuse.

Ms Yemshaw said her husband had yelled at her in front of their two children and did not give her money for housekeeping.

However, her request was rejected by officials in Hounslow, West London because her husband had never hit her or threatened physical violence.

But the new judgment means Hounslow council will be required to reconsider Ms Yemshaw's case.

Under the landmark ruling, denying money to a partner or criticizing them could also count as abusive behavior.

H. Michael's Take

While Colorado's Legal Definition of Domestic Violence is very broad - it has not achieved the insanity of the ruling of this British court.

Colorado criminal defense lawyers agree that many arrests in Colorado for domestic violence are frivolous on their face.

I have defended cases where water was thrown on a spouse's face -- where the back of the husbands head was playfully scuffed - and where a spouse has broken his own personal property in an silly manner -- all leading to arrests, charges, and later dismissals of the cases - but this case reaches new plateaus of absurdity.

Colorado has not reached that point in the expansion of the crimes of domestic violence.. HMS

Posted by H. Michael Steinberg | | Email This Post

January 11, 2011

The High Price of Restrictive Federal Gun Laws in Colorado Domestci Violence Cases

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A Fort Carson soldier Chester Duncan, who was featured Sunday in a Gazette investigation of troops who deploy with pending felonies, appeared in court Monday on leave from Afghanistan. He hoped for a light sentence that would ensure he could return.

The judge did not give it to him.

In 4th Judicial District Court, the 28-year-old specialist pleaded guilty to choking his wife and slapping his daughter.

The prosecutor had agreed to a plea deal she thought would allow Duncan to continue his tour as a combat engineer, hunting hidden roadside bombs and flying remote-controlled aircraft. The soldier would plead to 3rd degree assault -- a misdemeanor -- and receive a one-year deferred sentence, which meant if he went to domestic violence and child abuse classes, he would do no jail time and his record would be wiped clean in 12 months.

Both the prosecutor and defense attorney told the judge that it was the right move because Duncan and his wife had made amends, he had gone to Army family violence classes, and the couple had not fought since his arrest in the fall of 2009. In fact, while he was in court, she was going into labor with their third child.

"Is this what you want?" 4th Judicial District Judge Deborah Grohs asked Duncan, who stood before the bench.

Duncan said yes.

For defendants to take a plea agreement, they must explain to the judge what they did wrong.

Duncan, a soldier in the 3rd Brigade Combat Team, 4th Infantry Division, described how he got into an argument with his wife, then pushed her and held her down.

"Did you choke her?" the judge asked.

"Yes," Duncan said.

"Did you cause your wife physical pain?" the judge asked.

"Yes," Duncan said.

The prosecutor and defense attorney asked the judge that the assault charge not be categorized as a domestic violence crime, because under federal law, that would bar Duncan from possessing a firearm for the 12-month sentence, which began Monday.

"If he could not hold a gun, he may not be able to go back to Afghanistan," deputy district attorney Carrie Sample told the judge.

Duncan's public defender, Rory Taylor, argued that Duncan's case was not really domestic violence, just the unfortunate aftermath of a 15-month deployment in Iraq that had resulted in "a lot of tension."

The judge listened to the arguments, but said she was ultimately constrained by law.

"You are getting a very nice plea agreement," she told Duncan. "If you complete the requirements you will have no criminal record."

Then she sighed. After a long pause, she noted that Duncan and his wife were married at the time of the crime and he choked her until she was unable to breath.

"This is, indeed, an act of domestic violence," the judge said. "I have total sympathy for you and respect your service, but this is what it is, I can't make it disappear. I know it may mean your termination from the Army, but it is what it is."

She determined that the crime should be categorized as domestic violence.

It is not clear whether the Army will return Duncan to Afghanistan, or whether he risks being discharged because of his conviction. A spokesman for his brigade did not respond by press time to an e-mail request for comment.

Read more:

http://www.gazette.com/articles/soldier-110902-court-return.html#ixzz1AjXFpMlO

H. Michael's Take

This tragic circumstance highlights the unyielding nature of "all or nothing" federal gun laws whose passage was a knee jerk reaction to a powerful feminist lobby. By removing discretion from a judge - (here it occurs at the state law level - which charaterizes a case as Colorado "Domestic Violence") - based solely upon the identification of the victim and ignoring all other pieces of information in a case mitigating his actions - the state legislature prevents the judge from doing what the judge is elected to do... decide the case results.

Both the DA and the Defense Attorney must have known the judge could not disregard the law - which is mandatory - identifying this as a domestic violence case. This judge had no choice but to impose the domestic violence "tag" to the soldier's actions - thus - in my opinion - ending his military career.

The pendulum must swing back and judges must be allowed to do their jobs and answer for their decisions... and not wring their hands and blame the mandatory nature of Colorado's domestic violence laws..

This must change. Change begins with you - the voter.

Posted by H. Michael Steinberg | | Email This Post

December 24, 2010

Domestic Violence Increases Because of the Bad Economy

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Recently a Texas newspaper reflected a sruvey by the Allstate Foundation that has found nine of the ten domestic violence programs in the Dallas area reported a significant increase in demand for their services this year. It's a trend they blame, in part, on the bad economy.

The decrease in the resources of many marriages has led - at large part - to the increase in acts of domestic violence.... It is a national trend - and it is growing here in Colorado as well.

Many domestic violence shelters report that calls for help have also increased drastically... in some cases, as much as 60-percent since last year.

"They're very open with us and they'll tell us its because of their finances," said Catherine Olde of Safe Haven of Tarrant County.

Advocates say the economy has added stress on families, making abusers more violent and men and women less likely to leave the families.

Shelter services, meanwhile, are being stretched to their limits trying to meet the increased need.

Advocates are now trying to focus their efforts on prevention, while helping as many people as they can.

H. Michael's Take

It is no surprise to Colorado criminal defense lawyers practicing Colorado domestic violence defense.. that domestic violence is on the increase. What is more significant to me is the absence of resources available to assist married and unmarried people through this stressful period.

I have seen little or no public education that is dedicated to supporting families, little in the way of church based services that are being made available, and even little internal efforts on the part of extended families to reach out and assist couples struggling with the stress of the financial downturn.

The reason? The intensely private nature of relationships and the fear of the appearance of interfering in the intimate relationships of others.

I advocate for preventative - proactive measures- not just reactive or emergency based triage type services. Battered women's shelters should be a last resort for women who find themselves in these difficult circumstances.

My strong suggestion -- reach out to your family and try a form of intervention ... it may save a family from the destruction of a domestic violence charge. H. Michael. Steiberg

Posted by H. Michael Steinberg | | Email This Post

December 11, 2010

DA Stopped From Retrying Defendant After Mistrial Granted - The Protection of Double Jeopardy

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In a recent decision by the Colorado Court of Appeals, the DA was prevented from retrying a case when he sought and was granted a mistrial ...

Here are the facts:

The defendant was charged in a Colorado Domestic Violence case with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace. The trial court declared a mistrial during cross-examination of an alleged victim in the misdemeanor assault case against the Defendant who then filed an immediate appeal stating that a retrial would violate his rights against double jeopardy.

The trial court denied the moton to dismiss concluded that there was manifest necessity for the mistrial because the cross-examination question improperly provoked the jury into believing it was determining issues of immigration and domestic relations and because the risk of unfair prejudice to the prosecution could not be corrected just by instructing the jury to ignore the question.

The Colorado Supreme Court found that the defendant not only properly raised his double jeopardy challenge to retrial but that the defendant had a right, possibly of constitutional magnitude to inquire into the wife's understanding of the immigration consequences of a conviction.

H. Michael's Take

In this case the Defendant's theory of defense was that his estranged wife had fabricated the claims to gain leverage in a contentious custody battle involving the couple's infant son. At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would "do anything," including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected - stating "we're here on a criminal trial not on the divorce case" - but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel "a little bit of latitude" in this area, the court did urge counsel to "cut to the chase."

Further questioning established that the wife had taken the couple's son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he'll be deported? The prosecution objected before the second question was answered, stating it was "completely improper to bring that up in this proceeding." The court promptly ordered a recess.

Outside the jury's presence, the prosecutor moved for a mistrial. He argued the jury had been "irrevocably tainted" by questioning that was "a ploy to invoke sympathy for the defendant" and amounted to "probably the worst violation [he had] ever seen." Defense counsel responded that the question went to the "heart of our defense" and defendant was constitutionally entitled to ask it. Counseltold the court that she had spoken with defendant's immigration attorney, that this assault conviction would lead to deportation, and that the wife "knows all of that."

When the DA moved for a mistrial, the defendant objected -- the mistrial was granted and the defendant immediatley appealed.... and WON.

The importance of this case is that the defendant should be allowed using cross examination to expose the possible motivations for a report odf domestic violence to the authorities, When the judge shut that down and then granted a mistrial -- he was dead wrong. The Colorado Supreme Court went even further in it's analysis:

Criminal defendants have a right, of constitutional magnitude, to engage in "'otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.'"

Posted by H. Michael Steinberg | | Email This Post

July 24, 2010

Case Exemplifies The Use of "Prior Tranactions" Evidence in Domestic Violence Cases

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LOCKPORT--Niagara County Judge Matthew J. Murphy III on Friday scheduled an Aug. 4 hearing on whether prosecutors will be allowed to tell a jury that Gwendolyn Garcia, charged with the stabbing death of her boyfriend, had a vegetable thrown at her by the victim 3z years before.

Garcia, 31, admits that she killed Randy R. Whitney, 38, in their Hartland apartment. In a trial for first-degree manslaughter scheduled to start Aug. 9, she is expected to plead self-defense, pointing to a history of domestic violence between the two.

Prosecutors want to offer a story from Whitney's mother, Linda, that she saw her son "playfully" throw a pepper at Garcia in the summer of 2006, to which Garcia allegedly responded that she could kill him for that.

Meanwhile, defense attorney Michael W. McNelis said Friday he has dropped the notion of calling an expert witness to testify about battered woman syndrome, which means prosecutors are no longer seeking a pretrial psychiatric examination of Garci.

H. Michael's Take:

This case points to the absurdity of just how far a prosecutor is willing to go to "taint" a jury in a weak domestic violence prosecution.

Under Colorado Domestic Violence law, the DA in a domestic violence case that has gone to trial, is permitted to use prior episodes of so called "domestic violence" to prove the case before the court. This is called Ruloe 404 (b) or similar transaction evidence.

The law reads as follows:

18-6-801.5 - Domestic violence - evidence of similar transactions.
Top

(1) The general assembly hereby finds that domestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness. The general assembly therefore declares that evidence of similar transactions can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence.

(2) In criminal prosecutions involving domestic violence in which the defendant and the victim named in the information have engaged in an intimate relationship as of the time alleged in the information, evidence of any other acts of domestic violence between the defendant and the victim named in the information, and between the defendant and other persons, constitute other acts or transactions for the purposes of this section, and the court may authorize the admission of evidence as provided in subsection (3) of this section.

(3) The proponent of evidence of other acts or transactions under this section shall advise the trial court by offer of proof of such evidence and shall specify whether the evidence is offered to show a common plan, scheme, design, identity, modus operandi, motive, or guilty knowledge or for some other purpose.

(4) Upon the offer of proof under subsection (3) of this section, the trial court shall determine whether the probative value of the evidence of similar acts or transactions is substantially outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or misleading of the jury if the evidence is allowed or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(5) Upon admitting evidence of other acts or transactions into evidence pursuant to this section and again in the general charge to the jury, the trial court shall direct the jury as to the limited purpose for which the evidence is admitted and for which the jury may consider it.

Juries, upon hearing about other episodes of so called conflict between the parties, use that information to bridge the gap in an otherwise weak domestic violence case .. that is unfair in my opinion...

In this case the attempt to use of other crimes evidence points to the absuridity of these rules.


Posted by H. Michael Steinberg | | Email This Post

July 22, 2010

The Domestic Violence Protection Order: New Heights of Absurdity

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SALT LAKE CITY, July 21 (UPI) -- A Salt Lake City man jailed for domestic violence, is accused of violating a protective order by sending letters to his estranged wife's cat, officials say.

The 32-year-old man, convicted in two domestic violence cases, sent the letters in May from jail to the cat, Molly, and to his wife's neighbor, addressing his wife in the second person, The Salt Lake Tribune reported.

In the letters the man, whose name was not reported, asks his estranged wife, via cat and neighbor, not to testify against him in the upcoming domestic violence case which resulted in the protective order, the newspaper reported Tuesday.

The man faces 11 counts of violation of a protective order and two counts of tampering with a witness, all third-degree felonies

H. Michael;s Take:

Clearly criminal and civil protective orders have a role to play:

They can:

What a protective order can do:

· Prohibit further acts of domestic violence.

· Prohibit the abuser from directly communicating with the victim (via phone, fax, email, or in person).

· Prohibit the abuser from going within a specific distance of the victim's home or place of employment.

· Prohibit the abuser from going near the home, child care facility, or school of a child protected under the order.

· Provide for the victim parent to have temporary decision-making responsibility for children.

· Set child support or spousal support.

· Order the abuser to attend counseling or an intervention program.

· Provide for the possession of mutually-owned property, such as a home or car.

· Help the victim establish the conditions when she/he should seek assistance from law enforcement

But the abuses of the protective order in the context of so called domestic violence cases is made clear by this short news story.

Posted by H. Michael Steinberg | | Email This Post

July 21, 2010

Prosecutor's Absolute Immunity Armor is Pierced in Colorado

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A former college student who had been accused of libeling a professor in an online
journal can pursue his lawsuit against the prosecutor who approved a search warrant affidavit for his home, a federal appeals court said Monday.

The 10th U.S. Circuit Court of Appeals issued a ruling reversing a lower court's dismissal of the lawsuit against Weld County prosecutor Susan Knox.

The lower court said Knox couldn't be sued because of qualified immunity for overnment employees.

The appeals court disagreed, sending the case back to the trial court.

Former University of Northern Colorado student Thomas Mink sued Knox in 2004 after she approved a search warrant affidavit for his home following a complaint that he had libeled a professor in his online paper "The Howling Pig." Greeley police seized a computer and written materials from the home.

A district court granted Mink's motion for a temporary restraining order and ordered police to return the computer and other items.

The district attorney's office then said the statements in "The Howling Pig" couldn't be prosecuted under Colorado's criminal libel law.

Mink pursued his lawsuit, saying his constitutional rights were violated. A district court ruled that Knox couldn't be sued for approving the affidavit because a reasonable official in her position could believe the statements weren't constitutionally protected.

The appeals court said a reasonable person wouldn't take the spoof of the professor as
statements of fact or believe publishing the statement was a crime.


H. Michael's Take:

This case will send ripples of fear into the Colorado Prosecutors subculture. As long as I can recall (over 28 years), DA's have enjoyed complete and absolute immunity from civil lawsuits as a result of the discretionary decisions they make as prosecutors.

Immunity is an exemption granted by statute or government authorities from a legal duty, penalty or prosecution. Before this case in Colorado District Attorney's enjoyed almost absolute immunity from civil suit -that is -from liability for decisions made in the course of their duties... this case has the potential to change that status...

Posted by H. Michael Steinberg | | Email This Post

July 16, 2010

Federal Law: Domestic Violence Law Broadened and Extended Prohibiting Gun Ownership

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In 1996, a Federal Law was enacted which prohibits those convicted of a domestic violence offense from possessing firearms. in 2009 in the case,of United States v. Hayes, a West Virginia man who had been convicted of a domestic violence offense in 1994, against his then-wife but nowhere in the record was there an indication ro a reference to his plea as an "act of domestic violence."

Ten years later, in 2004, after the Federal Law in questions had been passed [18 U.S.C. §922(g)(9)], police responded to a complaint of domestic violence at Hayes' home. Upon search of the home, police found a rifle amongst Hayes' possessions. Police were also able to determine that within the ten year time-frame, Hayes had owned at least four other firearms.

Hayes' 1994 conviction was for misdemeanor battery, rather than a specific offense of domestic violence, even though the victim was undoubtedly his wife at the time.

The appellate record was a ping pong of reversed decisions ultimately ending in a negative result for an individual's right to bear arms..

Hayes had argued to a United States District Court that the Federal Ban on possession of firearms should not apply to him since the law had not been enacted yet and his plea did not include a reference to the fact that it was an act of domestic violence -- the so called "domestic violence finding or "tag."

The (Lower) District Court rejected Hayes' argument and Hayes entered a conditional plea of guilt, preserving the case for appeal.

Upon appeal, the United States Court of Appeals for the Fourth Circuit reversed Hayes' conviction, citing that the Hayes' conviction for misdemeanor battery was not specific to constitute domestic violence, despite the fact the battery was against his former wife.

The Supreme Court of the United States agreed to hear the case, and, reinstated the conviction against Hayes.

The Supreme Court found the definition of misdemeanor crime of domestic violence, as it applies to the Federal Statute, to include two elements

(1) the use or attempted use of physical force or the threatened use of a deadly weapon, and

(2) it must be committed by a person with a specified domestic relationship to the victim.

The Court held that the statute does not require the prior conviction to specifically apply to an offense of domestic violence, but rather that the Government can prove such a domestic relationship existed in the previous offense in order to apply the Federal Law in the case at hande,

The Supreme Court held that requiring a prior offense to be charged specifically as a domestic violence offense would "frustrate Congress' manifest purpose" in preventing the combination of firearms and the tendency of a person to commit domestic violence.

Under present Federal Law, Domestic Violence is defined as any abusive relationship that results in emotional abuse, physical violence, sexual assault, stalking, assault, and/or threatened violence.

State Court convictions can have Federal implications. If you have been charged with an offense of domestic violence, or an offense stemming from a prior conviction, it is important you contact an experienced Colorado Criminal Defense Attorney immediately.

H. Michael's Take:

Today most Colorado Front Range Counties "Fast Track" Domestic Violence cases to trap the inexperienced targets of what often turn out to be very weak cases of so called domestic violence. The impact of taking a "plea" in these cases - as a result of Federal Laws such as the Federal Gun Laws mentioned in this case report -- is extensive and drastic. Information is power -- do NOT take a plea bargain until you are fully aware of the full ramifications of the plea bargain are made known to you.

A state court judge has NO obligation under the present law to advise you regarding the loss of your Federal right to bear arms.

For a confidential consultation, contact our offices via phone at 303-627-7777, or email at hmsteinberg@hotmail.com.

Posted by H. Michael Steinberg | | Email This Post

July 4, 2010

Lack of Domestic Violence Training Cited as a Problem

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In early 2010 A new study on domestic-violence killings and a recent murder/suicides in Loveland, Colorado has prompted calls for better training of the officials who deal with divorce and custody issues.

Incredibly, jin Colorado udges, some mediators and special advocates (Special advocates are court appointed lawyers or therapists who investigate, report and make recommendations to the court on issues that affect children in custody cases) receive no mandatory domestic-violence training.

H. Michael's Take:

It is clear to me that almost all judges in Colorado try to make an informed decision at the critical stages of domestic violence cases. However, all too often, the judges rely on the recommendations of the politically reactionary District Attorney -- whose position is based on the "no risk" model of prosecution. Take no chances and you will never be held to answer for your recommendations by the voters.

When decisions on the conditions of bond (amount of bail - living arrangements of the defendant - no contact orders- as examples) -are made in open court, judges need to give greater deference to the wishes on the victim. It is in this arena that most victims of domestic violence are treated as if they were children and not respected and perceiving adults. This judicial approach is inconsistent with and flies in the face of the Colorado Victim's Bill of Rights ...

A judge's decision in the area of Colorado alleged domestic violence should reflect the same principles of support and respect accorded to victims of all other crimes. Perhaps additional training will assist judges in these tough - and yes, risky- decisions.

To read the actual Colorado Victim's Rights act:

Continue reading "Lack of Domestic Violence Training Cited as a Problem" »

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June 18, 2010

Colorado Domestic Violence: "But I Have No Criminal History" - The Truth About DV Cases

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How many times have I heard a client utter the words - "But I have no criminal history"...as if those words will immunize them from prosecution. And the second most used phrase - "and she is not pressing charges" quickly follows the first.

In this brief entry -- I wll address the first issue --and in a subsequent Blog entry -- I will talk about the second of these issues.

Recently the Denver Post Ran an Article on Domestic Violence.

"The Denver Domestic Violence Fatality Review Committee found in its study that most people who commit murder and then suicide typically have no police record. That means the clues to violent behavior come from understanding the dynamics of domestic violence."

The article spoke about Rick Walters and his former wife who exchanged custody of their three children at his Loveland home on Jan. 27, On that date, Walters shot and killed his ex-wife and two of the kids before turning the gun on himself. Police had never been called to the home, and Walters had no criminal record.

"You can't predict which cases are going to end in tragedy," said Phyllis Roestenberg, staff attorney and pro bono coordinator for the Rocky Mountain Children's Law Center. "There were red flags in the (Walters) case, and you need to take them seriously." Robert Smith, the court-appointed special advocate for the Loveland case, wrote before the killings that Walters needed to "get a firm handle on his anger and a desire for revenge" before he can focus on his parenting.

He also cited concern for Walters' "reported use of the children to express his anger."

Walters' former wife, Anne Formosa, also said that her husband isolated her from friends and family, Smith noted. Smith wrote: "Father continues to feel maligned by Mother, and wants her to reconcile and to return home to resume life the way it was."

Larimer County District Court Judge William Dressel finalized the couple's divorce. He would not discuss the specifics of the case. He did, however, say that both parents rejected the idea of using a neutral site to exchange custody, saying it would be too inconvenient.

H. Michael's Take:

This is the most tragic of all Domestic Violence cases and it is the horror story that every DA, Judge and Probation Officer fear the most.

The truth is that patterns of DV often go unreported for years. The police, the DA and the Judge "assume" that a lack of criminal history is NOT evidence and that DV has occurred and they proceed on the basis that the "victim" has not reported it.. thus, in effect, canceling out the presumption of innocence accorded to Defendant's by the Colorado and US Constitutions.

Sometimes prior acts of Domestic Violence have gone unreported -- sometimes there simply were none...this iis the first. The crux of the issue - and what the Defendant / the accused / the client needs to understand is the culture of the criminal justice system - its mindset.

The system focus's on disbelieving the victim and treating (usually a female) as if they are a child, a liar, or both -- and disregarding the protestaions of this person as if what they have to say is meaningless...is the Government's belief that the Government is "acting on her behalf," "in her best interests" nothwithstanding what she wants!

So here it is .... a lack of criminal history in the context of accusations of domestic violence -- holds little weight in the criminal justice system. The answer? -- this lawyer may seek to have a professional - such as a therapist conduct a private DV evaluation on the client (assuming they can afford same) to establish for the DA , the Court, Probation etc and for settlement purposes only- ( assuming the DA has a case and the incident DID occur and can be proven in court) - that this was an isolated and is unlikely to reoccur. The DV evaluation establishes the credibility of the Defendant's statement - this was an isloated incident and is, truly, isolated.

If you are charged with an act of domestic violence - don't wait and don't hesitate to call or page me 24-7.. H. Michael.

T

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