One of the first rites of passage to becoming a criminal defense attorney is “the call.”
No, this is not a term for a the next tragic event that stabs, mauls and deflates the hope of all Cleveland sports fan. [See “The Decision,” “The Drive,” “The Shot.”]
It is the telephone call a defense attorney gets from the alleged victim of domestic violence. Typically, this girlfriend or wife asks in confusion why the defendant is in jail. “It was just a fight….He needs to get back to his job….He needs anger management class but not jail.” These are many of the responses I hear.
Sadly, many women are ignorant of the process, the politics and the consequences involved with domestic violence prosecution. Here’s a little overview.
The Fight & Arrest
If you’ve ever been in a relationship, you know that fighting can occur – and it’s often intense. For some people, threats of physical violence ensue; and of course, for others, physical violence does in fact ensue. The alleged victim calls the police often out of anger, and sometimes out of fear. Frequently, I believe the alleged victims believe that the police will come and referee the dispute, and maybe tell the guy to go to his buddy’s house and “sleep it off.”
This could not be further from reality. Pretty much every police department has a policy that a domestic violence call requires an arrest – don’t expect refereeing. [Why should we? This can endanger cops’ lives, and as you’ll read below, the call alone is typically enough evidence for an arrest.]
The Victim’s Statement
In Ohio, alleged victims fill out a report that is a narrative of what occurred. I’ve read a lot of these, and they all seem to have a similar thread: we were angry, he called me a bitch, we were drinking, he pushed me, etc. This statement is definitely enough evidence to arrest and charge a person. It is usually completed at the police station, immediately following the incident.
What if there is no Statement?
In some cases, the alleged victim hasn’t filled out a report that sets forth the facts. [She may be too intoxicated, injured, unwilling, etc.] The police, even without this, have enough evidence to arrest and charge a person. And the prosecution can still make a case without a victim’s statement. How? Through a hearsay exception called “excited utterance.”
An Excited Utterance
A quick tutorial needs to be done to understand this concept. Hearsay, in a trial, is mostly excluded. Hearsay, in the simplest terms I can think of, is:
Witness on stand, testifying;
witness on stand says “person Y told me this…” The “this” is
typically a very important factual issue that is trying to be
The whole idea of excluding this testimony is that person Y should be the one to testify and be subject to cross-examination. Without cross-examination, there would be no tool to test the truthfulness of someone’s testimony. And obviously, you can’t cross-examine someone who isn’t testifying. So the goal is to ensure that key issues to a case are established by testimony direct the witness, and not second-hand.
But, there is a caveat to hearsay. Some hearsay is permitted if it falls into certain categories. The excited utterance is one of those categories. Basically, if a person says something in response to a startling event, and it relates to the startling event, it is allowed into trial.
How does an excited utterance make prosecutor’s job easier?
Domestic violence victims that refuse to cooperate with the prosecutors can present a tricky situation. Usually, they are the only ones that “witnessed” the offense, so without their testimony, it’s darn tough to prove a case beyond a reasonable doubt. However, prosecutors now have a tool in which they can bring in evidence of the victim’s statements to police to prove their case, all as an excited utterance. In Summit County, our court of appeals has given wide latitude to the trial court’s admission of this testimony.
Why prosecute a case when a victim is against it?
From an intuitive standpoint, it seems odd to go against a victim’s wishes. Yet, domestic violence is very much a moral, social and political issue. Prosecutors are elected officials who are ultimately responsible to their constituents. If a prosecutor is “light” on domestic violence, voters don’t take kindly. And quite frankly, a society where couples are fighting, abusive and inclined to use law enforcement as a referee is not ideal.
So in a way, prosecuting domestic violence is the government’s way of saying: if you involve the criminal justice system in your personal life, you better not be toying around.
Do you think prosecutors should be more responsive to victims’ wishes?
I have worked in a law office for over three years. During this time, I’ve learned a few lessons that anyone using a professional service should hold dear.
In order to achieve the most from a professional such as a lawyer, doctor, accountant or dentist, there are three fundamental rules to remember:
1. Be realistic about your expectations. A lawyer cannot change the law to create a desirable outcome, especially in criminal cases. Remember: a successful case is not fairly measured by your happiness with the outcome. We are not legislators. Rather, a fairer litmus is the strength of the evidence, the laws, and what happens in similar cases.
2. Always be polite while in a professional’s office. It is understandable to get caught-up in your case. Dealing with the government can be scary, confusing and intimidating. Don’t take out your frustration on the people around you, especially those there to help! If you have a fee dispute, voice your concerns calmly – you will get a lot further than becoming agitated and aggressive. As you can see, my office is a serene atmosphere – I prefer to keep it that way.
3. Envision yourself in the position of the lawyer or doctor. Their job may not be physically exhausting, but it most certainly is mentally tiresome. Moreover, these professionals are bound by strict ethical codes. As professionally licensed individuals that spend thousands of dollars on education, the last thing they want to do is commit an ethical violation that could jeopardize what they’ve worked towards. Chances are, they will try their very best to treat you fairly and honestly.
If you keep these tips in mind, I firmly believe your experience with a professional will be precisely that: professional.
Here in Ohio, it is 93 degrees and the ac at my office is not denting the heat! For some reason, the heat makes my mental acuity lethargic, so the best blog idea I could amount is guns.
For those that are not enthralled by Supreme Court action, then you may not have heard that the almighty Court rendered a really rare Second Amendment decision this session.
Newbie Samual Alito authored a majority opinion in McDonald v. City of Chicago. Specifically, the gun law in question came from Chicago, a city that had a long-standing handgun ban dating back to 1983. The Court told a lower court to reevaluate the law, stating that states and cities must respect the Second Amendment. Although the Court didn’t flat-out strike the law as unconstitutional, the effect is to invalidate outright gun bans across the nation. According to the opinion, law-abiding citizens have to a right to act on the belief that
“their safety and the safety of other law-abiding members of the community
would be enhanced by the possession of handguns in the home.”
The Court was far from clear, which Stephen Breyer saw as a problem in his dissent. The decision did not specify the constitutional limits on gun laws. A few key issues that could be litigated include:
-Bans on people under the age of 21 buying or owning guns;
-One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia;
-Georgia’s ban on carrying guns into churches;
-Bans on guns in bars
Another issue that could potentially alter gun jurisprudence is the make-up of the Court. The decision was the most narrow possible at 5-4. If one conservative justice is replaced by a liberal one, the Court’s stance could change drastically.
For many politicians, guns are symbolic connection to their constituency. Here are a few photos of politicians touting their Americanism. I say, as usual, Arnold does it best.
Sarah Palin has lovely hair that looks fetching in an updo. Her long hair is certainly different from that of most female politicians. I tend to think this is undisputed.
Sarah Palin also has a rather amusing parody on Saturday Night Live poking fun at her ability as a professional. I tend to think the hilarity of the skit is undisputed.
I’ve often wondered if her image causes people to consider her to be less qualified for a serious profession. To wit: does long hair detract from a woman’s professionalism?
A lot of female lawyers probably question their image and whether or not it hurts their career. I know I do!
I, like Sarah Palin, have long hair and a youthful face. I’m also short like Sarah. I am spunky as well – and like anyone, I say stupid stuff that makes me look dumb.
I admire Sarah because she doesn’t change herself to fit the mold of an ideal professional. She, like me, enjoys long hair. Instead of chopping it off for a more “modern” hairstyle, she puts it up in a tasteful updo. Personally, I think an updo is quite attractive and can accent a suit nicely.
Yet Sarah is constantly derided for being vapid. I’m sure any other female politician with short locks and a serious demeanor has goofed up just as much. But we don’t hear about them!
So I query: does a long-haired, feminine woman, by virtue of her hair and attitude, become disqualified as a professional?
If we used Sarah as an example, and the media circus of pundits that follow her, I tend to think so. Maybe I should cut off all this crazy hair!
No one ever described Don King as short-winded. I now know this first hand, as his “promoting” cost me $25 in the form of a parking ticket.
Yep, Don King was at the Northern District of Ohio Bankruptcy Court this morning. He also was ahead of me in the docket, which meant a 45 minute typical endeavor took 2 hours.
To be precise, he wasn’t ahead of me; rather, one of his boxer’s was. Ray Austin is a 6’6, heavyweight boxer, who at age 39, has seen his fair share of fights. But like any boxer, his highs parallel his lows. Just a few months ago, he filed chapter 7 bankruptcy for $6000 in debt, plus back child support for 5 adult children. Apparently, he started impregnating women at a very young age. His case was the typical chapter 7: without assets.
Well, it ends up that Don King Productions is willing to pay off Austin’s creditors in exchange for dismissal of the case. A bankruptcy, from what I gathered from the circus-like testimony from Don King’s lawyer, the World Boxing federation, and Austin himself, renders Austin unmarketable for bouts. Austin is guaranteed by King to fight in a bout worth at least $100,000. [And why anyone would believe this is baffling to me. Isn’t the whole point of boxing promotion is to tell whoopers so as to make something seem more epic than it actually is?]
The trustee and the judge were curious to know why Don King became interested in Austin after he filed bankruptcy. A boxer with 15 years with of blows to his head, a weird Floridian lawyer, and Don King himself could not clearly answer this question. Then again, the audience of pissed-off lawyers who had to wait an hour already figured this. At one point in the “hearing,” the lawyer asked to talk with King…old Donny pulled his ancient body from the courtroom bench, adorned in his wrinkled old suit, and surrounded with this highly obese bodyguard also adorned in an old suit [obviously custom-tailored to fit 400 lbs of girth], to converse with the lawyer. They were both in ear-shot of me, but frankly, I could not decipher King’s odd, southern dialect.
After about an hour of this testimony, the judge made the parties step outside so the rest of the docket could proceed. By that point, I already knew I had a parking ticket. And instead of feeling reverent for sitting in the same room as a celebrity, all I felt was irate. To Mr. King, this was just a playground for his little circus. It was probably a form of promotion: I’ll admit, I googled the boxer’s name, and now, I’m writing about it for others to read. Curiosity is a powerful tool.
Yet, I believe a federal court is not a playground for boxers, especially when it made about 15 lawyers sit well over an hour, just so a Florida lawyer and a World Boxing Council lawyer could pretend they are big time.
So if I could have said something to Don King, it would have been: along with the $6000 for Ray Austin’s creditors, can you pay for $200(15 lawyers x 1 hour), plus my parking fine, plus the tax-payer dollars wasted by your little game?
I don’t text…let me just get that out there. It’s really annoying that I have to tell everyone I meet not to text me because I’ll never get it. Texting is just not my thing, and I have no intentions of starting anytime soon.
While I am pleased to chalk up a law that doesn’t apply to me, it makes me realize how lame law-making has become. Lawmakers are at the point of micro-managing citizens with laws that frankly cannot be enforced. Moreover, the idea of promulgating a law that is utterly OBVIOUS seems like a waste of resources. Yet, counties continue to push these anti-texting-while-driving agendas.
Lawmakers biggest rationale for these laws is deterring drivers from engaging in dangerous behavior. Gee, whodathunkit? Texting is dangerous? So are about 15 other activities that I could rattle off, and I’m sure you could add a few to the list. How about enforcing an anti-make-up-while-driving agenda. If you are found with mascara, then you are fined. At least with mascara, you can only do one thing.
But a phone has so many features that the law doesn’t cover – like answering. I assume everyone presses a button when answering – isn’t this basically like a mini text? How will an officer know if someone is actually texting, or just answering? And confiscating the phone would lead to a whole can of 4th amendment worms.
Call me an obsessive libertarian, but my theory is based on assumption of risk. When I hit the roads, I assume people will sometimes participate in reckless activities such as texting. Knowing this makes me a defensive driver. Even though it would be unfortunate for my parents and student loans companies if I got killed by a texter, well, hey, it’s no different from a burger-popping trucker or a make-up maven.
Therefore, I advise all people to drive a big truck. The gas is kind of pain, but my truck is a helluva lot more painful than a little mini coup driven by an iphone obsessive person.
When I was growing up, my parents and teachers told me I could be anything! Their encouragement has always spurred me to do well in school, finish college in 2 years, then head off to law school, and eventually, open my own firm. If there is one thing about me, it’s that I believe in myself.
Yet, I am amazed that all those people prevaricate, although with the best intentions.
Or perhaps they were linguistically exact, for I could do any thing. Singular!
A puppy named Rogey that looks like a sausage [really short legs as beagles have and fat baby belly] has really brought this point home.
I am “co-mommying” him with my mother – she stays home all day, and I come home after work. And this little guy is still kicking our parental skills into action. My mom is a grand mother figure…I mean, she was a preschool teacher for 10 years. She loves baby-like things, be it puppies, kittens or babies. If it were possible to label, I’d say she is an expert in the baby-raising field. Interestingly, she stayed home when I was growing up – probably why she knows so much.
I, on the other hand, am a terrible co-mommy. All I really want to do is come home after work and play with the puppy, feed him people food, and hand him to mom when pooping occurs in the house. True, I “raised” a cat from the time it was a kitten, but it was mostly my roommate that did all the hard stuff like teaching it to not jump on the table and kill the guinea pig. But by all accounts, my cat is a heathen that walks around like a panther killing all birds, moles and live things in sight.
So my point being, when all those people said I could do anything, they didn’t really mean I could do everything. For as a professional, I don’t have the time or really the interest to do domestic things that don’t pay. I LIKE getting paid. And while I’m sure there are some super women who think they can do it all, I am skeptical that they actually do.
Many experts agree that there is a link between the 1.2 million people who file for divorce in the United States and the 1.4 million that file for bankruptcy. VISA corporation did a survey over the past few years and found that divorce is the 4th most common reason people file for bankruptcy.
Attorney fees certainly may lead to a financial strain. However, the structure of property division may also contribute to insolvency. When a couple splits, they divide both assets and debts. Sometimes, one spouse hasn’t been in the work force for years and finds her skills rusty. Keeping up with her debt obligations becomes impossible, and coupled with the financial hit she took for attorney fees, she may find bankruptcy the only alternative.
To add to the mess, all debts incurred during marriage remain intact after marriage. If one spouse who was assigned a debt in the divorce decree defaults, the other will be liable to creditors. So, for example, an ex-husband was the breadwinner and he was assigned all the debts in the divorce decree. The ex-wife moves to a small apartment and slowly re-enters the work force. She’s barely getting by…Suddenly, she gets a call from a collection agency telling her she owes $5000 on credit card debt. To her dismay, her ex had lost his job and stopped paying the debts. In this scenario, bankruptcy would probably be the only option. I bet she wished she had mediated instead!
I’m sure plenty of you face this tough question on a daily basis. I wondered the exact thing when I read an article on law.com this morning about a guy who Nazi saluted the mayor at a city council meeting.
It ends up that his salute was not the most prudent of actions, as he was promptly removed. Ironically, he was arrested in California. It was there that the famous free speech case, Cohen v. California, was decided in 1971. If I can recall from a very sleepy, crossword-filled constitutional law class [again, ironically, I scored perfectly on my con law Bar exam essay], Cohen was a guy who was against the Vietnam war. He wore a jacket into a courthouse that said “Fuck the Draft” and was arrested for a criminal offense. He was sentenced to 30 days incarceration. The Supreme Court held, basically, that “one man’s vulgarity is another’s lyric.” A society with open discourse will hear foul words as a side effect. The Court noted that although “fighting words” can be regulated, no one could construe Cohen’s jacket as a personal attack.
In the instant case, a man performed the Nazi salute to the mayor despite disagreeing with Nazi viewpoints. He saluted in response the mayor cutting off a speaker that expressed criticism of council. Originally, a 3 judge panel for the 9th U.S Circuit Court of Appeals held for the city. In rare form, a majority of the 26 active judges opted to rehear the case en banc with an 11 judge panel. Many people speculate that this case will make it to the Supreme Court, which frequently occurs when a circuit court hears a case en banc.
In my view, his behavior was completely constitution, albeit lacking in taste. It seems like the reason for his removal was the subject matter of his dissent. The city argues that he was removed because his behavior was disruptive. However, it could not have been too disruptive, since the mayor did not notice the salute. Instead, someone pointed it out to him. Then, he evicted Norse from the meeting. A video clip of the incident shows that the salute lasted about 5 seconds.
Interestingly, city council rules permit holding up signs. How is a salute anymore disruptive than a sign?
Some of the most seemingly normal people are actually the most dangerous to society. Interestingly, these people are often the loudest advocates for morality, law and government.
This morning, I read my daily copy of the Daily Legal News. It’s a wonderful little publication that deals with legal issues around Northeast Ohio. The main story talked about the captain of Mayfield Heights Fire Department installing a camera in the handicap stall at a local YMCA. A janitor found it, and staff identified the man installing it as Capt. Daniel Serge, a member of the Mayfield Hts Fire Dept for over 8 years. [He forgot to turn off the rolling tape while installing it.]
Shortly thereafter, police obtained a search warrant for his house, intending to find information related to the YMCA incident. Instead, they found 60 tapes of about 8 hour total of juvenile boys going to the bathroom in Serge’s home, all intricately linked by 3 wide-angle cameras. As it ends up, he employs kids to work on his tree farm. He also ran a program called “Hunt of a Lifetime” for terminally-ill boys to hunt deer raised at the farm. The program, sadly, entailed filming these ill kids in unknowing situations.
Serge was also the department’s training officer. As statistics prove, most fire fighters are men. So I guess he really liked to be involved in the whole “development” of young men.
Even though, as a criminal defense attorney, I generally believe all people deserve due process of the law, my profession doesn’t make me blind to the fact that there are some major freaks out there. That some of the biggest are involved in positions of public trust and look good on paper is very scary yet pervasive.
This story is certainly full of details. Yet many criminal defense cases are. But what really makes it stick out to me is how fake people can be. Here is a guy, running a charitable program for terminally ill kids, when he’s actually doing something else. And all his sheep-like co-workers act so shocked that such a “well-respected” guy would be caught up in such allegations. As much as a try to understand people, I cannot fathom why some play the holier-than-thou role, only to be exposed as complete frauds.
- “The Call.” And no, it doesn’t relate to Cleveland.
- My office is not a fight club hotspot
- Since it’s too hot to do anything else, lets talk about guns.
- Is the Sarah Palin updo professional?
- Dear Don King: You cost me $25.
- Finally, a law that does not apply to me! Texting while driving (really folks?)
- Lawyer by day, puppy trainer by…oh wait, pups have small bladders.
- Planning to fight a divorce? Plan to get a bankruptcy attorney, too.
- Ever wonder if you can Nazi salute at city council meetings?
- Seemingly “normal” people are often the biggest freaks of all.
- Touchdown Jesus won’t be making any calls.
- Ban on gay & bisexual men giving blood to be reconsidered by FDA