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Courtroom tips that matter

This is another one of those blogs that shouldn’t have to be written, but after the last couple days in court, it clearly does. Spending every weekday in court, I get to see and conduct a lot of hearings. All kinds. Anything from preliminary hearings to petition for post conviction relief. After months of watching other attorney’s clients during hearings, I realize that people just don’t know how to act in their own best interest. I cannot emphasize enough, you have to be your own best advocate! I am your attorney, I will do everything in my power and under the law to defend you and your rights, but I cannot dress you, and I cannot make you behave in court. The judge sees it, the district attorney sees it, everyone sees it, and it is hurting you! What, specifically, am I talking about?

I was watching a preliminary hearing where the victim accused her boyfriend of assaulting her. Throughout the entire direct examination of the victim (this is when the state puts their witness on the stand asking them questions so they can tell their story), the defendant was scoffing out loud at almost every statement. He shook his head so much and for so long I found it amazing that he could even stand up without falling over. He tried to talk at least three times during the testimony. When he was told to be quiet, he would tell his attorney that she was lying (he literally said it after every other word that came out of the victim’s mouth). The most amazing part of this entire show was that his attorney never said a word to him.

Before every hearing, I sit down with my client and go over what they need to do and not do during the hearing. Here is what I tell them:

  1. Do not react to anything the witnesses say,
    1. Do not scoff,
    2. Do not shake your head,
    3. Do not even acknowledge that they are in the courtroom.
  1. If you have any questions, write them down (I always provide my client with paper and a pen), if I can and should ask them I will,
  2. Do not talk to the witness,
  3. Do not talk to the judge, and
  4. If you have trouble with any of this, just look forward,

Remember, the judge is the one who rules on all the objection, decides how much leniency I get with my lines of questioning, determines whether there is probable cause to bind a case over, and determines whether to increase or lower a bond. Most people wouldn’t want to annoy the judge or make them mad and hurt their chances of a favorable outcome. But that is exactly what will happen for being disrespectful.

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Domestic Violence Prosecution – A System Broken at its Core

Domestic violence is physical violence where the two parties are related, romantically involved, or living together. It usually involves a person in a position of trust and responsibility violently abusing the other. While violence in any instance is unacceptable this is more egregious because the victim is particularly vulnerable due to the nature of the relationship. Actual domestic violence is among the most atrocious evils plaguing our society. Punishments, for a conviction for domestic violence, range from probation, to months of classes, to one day shy of a year in jail. Further all convictions revoke an individual’s second amendment right to bear arms.

So how can a system, that prosecutes this heinous act, be broken? This really is a criminal law hot button issue. It is broken because it does not have the ability to differentiate between a person guilty of committing domestic violence and a completely innocent party. And no district attorney or judge wants to be the one to dismiss a case only to have something else or something worse happen. It seems that the domestic violence system prefers to lock up/punish innocent people in an attempt to prevent any guilty people from escaping the consequences of their actions. In this current system, everyone who is accused is guilty from the very beginning.

In Davidson County if a 911 call is made alleging domestic violence, someone will go to jail. Police officers do not have the authority to make a judgment call as to whether a crime has been committed. I can no longer count the times that an officer has come to me, the defense attorney, and commented that nothing really happened but that the officer had to make an arrest solely based on the nature of the call.

Now you are in jail. If you are lucky, you can afford to bond out. The average bond on domestic violence is $10,000. That means you have to pay a bonding company roughly $1000 dollars plus tax to get out of jail. This money is non-refundable. Even if you are found not guilty you will not get this money back. If you cannot afford to pay a bond you will just sit in jail.

The State is entitled to ten days to prosecute a case where an individual is in custody. During those ten days you will be sent to court multiple times. The first setting is an settlement/review. The only thing which can occur is a guilty plea. To reiterate if you are in jail on your general sessions settlement/review date your only options are maintain your innocence and stay in jail or plead guilty.

On the second court date the district attorney may, and I emphasize may, have spoken to the alleged victim in your case. If they have they will make an offer based entirely on the one sided version of the alleged victim, usually to plead guilty to probation and a class or jail time. If the alleged victim is unavailable the state will request the remainder of ten days to prosecute the case. Nothing can be done at this point but wait. The assistant district attorney is entitled to ten days and the defense cannot stop this. Now on the tenth day the assistant district attorney will have, hopefully, spoken to the victim and will make an offer or the judge will retire or dismiss the case. That is ten days in jail for as little as one phone call and no other evidence.

We now live in a country where a single phone call with no corroboration is sufficient to place an individual in jail for ten days. Further jail time, a criminal record, loss of constitutional guarantees, and permanent damage to your reputation is based entirely on one person’s word and the mood of your friendly neighborhood district attorney and in no part whatsoever on guilt or innocence.

The worst part is that there is no defense against the abuse in this system. If the person sitting across the table from you at dinner tonight decides to call the police and claim you struck them, you will go to jail. And why would they do this? I’ve seen police called over things as simple as one person was angry over a non-physical argument. I’ve seen couples decide to punish one another for cheating. I’ve even seen police called with outrageous claims of horrible physical violence just to better posture in a child custody dispute.

So what can be done? Public awareness of just how broken this system is would be a start. Next a better system needs to be built so that the innocent do not suffer next to the guilty.  And to be clear, I do not advocate for leniency. True domestic violence is deplorable and should be handled severely. However the system must improve so we only punish those who deserve it and not everyone who is accused of it.