mt:Include module="Global Settings" /> DomesticViolence Evidence Law Archives: Colorado Criminal Lawyer Blog

Recently in DomesticViolence Evidence Law Category

August 10, 2011

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

| Share

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

January 27, 2011

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

| Share


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

| Share

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

| Share


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

July 24, 2010

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

| Share

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

« Domestic Violence Prevention in Colorado | Main Index | Archives | DUI - New Laws 2011 »