Lawyer Gal's Blog

A Young Lawyer's Perspective

“The Call.” And no, it doesn’t relate to Cleveland.

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

asserted/proved/disproved.

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?

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July 29, 2010 Posted by | Your legal rights | , | Leave a comment

My office is not a fight club hotspot

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.

July 13, 2010 Posted by | Your legal rights | 3 Comments

Since it’s too hot to do anything else, lets talk about guns.

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.

July 6, 2010 Posted by | Your legal rights | 8 Comments

Is the Sarah Palin updo professional?

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!

July 2, 2010 Posted by | Your legal rights | , | 8 Comments

Dear Don King: You cost me $25.

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?

July 1, 2010 Posted by | Your legal rights | 1 Comment