Domestic Violence – A New Class of Crime That Can Trap the Innocent

May 30, 2007

“Domestic Violence” is a new class of crime. It has become a cottage industry for law enforcement and it can trap the innocent.

You should understand that for decades police and prosecutors felt played fools by those who cried “domestic abuse”. Time after time, police were called to the scene of an argument or all-out fight between spouses or boyfriend-girlfriend. But then when the police arrived, the partners often turned on the police together to battle or oppose the police. Too often, the complaining party changed (her) mind the next day and “did not want to prosecute”.

For years, that was the end of it, until the next fight, when the same thing happened again. The complaining party simply used the police and prosecutorial system to break up the fight but protected their partner from any prosecution.

Law Enforcement “Takes Revenge” for past decades of

Cries of “Domestic Abuse”

 

Now, the system has taken over the prosecution. No more does the complaining party have the power to “file charges” or even to decide whether to move forward in prosecution. That power is now in the hands of the prosecution, and the complaining party is a mere witness who will be subpoenaed to testify, even against their will. And once handed a subpoena to appear, complaining witnesses have been cited for contempt of court for failing to appear.

Questionable Prosecutions Paid For By Federal Money

Now that federal money flows into the coffers of law enforcement to finance such prosecutions, this prosecution will go forward despite the wishes of anyone else. Now the police are much more aggressive in arresting and bringing charges, in discovering “wounds” to the “victim”. Physical marks which the “victim” swears are simply red marks that have nothing to do with their domestic abuse encounter (e.g., allergy red marks), the police confidently swear are squeeze marks or choke marks.

Finding physical evidence of abuse is critical, as the police well know, because, in order to make the arrest upon someone for such crime which the police did not actually witness, the police must first observe a “recent physical injury” to the alleged victim. The police are looking hard for such evidence, else they cannot justify their arrest.

Police and Prosecutors Seek Convictions to Advance Their Ambitions

Once the arrest takes place, the parties (defendant and alleged victim) are surprised that this process cannot be called to a halt. The parties seem sure that if someone will just listen, the charges will be dropped. But this is not so. The prosecution is moving forward, and the prosecution is looking at jail time to enforce its will. The prosecution takes the worst possible interpretation on every fact and implication.

Public Disagreements Turn into Legal Nightmares for the Innocent

Time and again, I have been contacted by a husband and wife who are startled that their wishes do not matter at all in the prosecution’s going forward to punish what the husband and wife consider their personal disagreement.

One such example involved a couple (I’ll call John and Jill–not their real names) in a store who were disagreeing about a purchase in a language other than English. Jill thought the item was on sale but the clerk didn’t agree and since the supposed savings was a minuscule amount, John took the wife’s arm and urged her to leave because they were running late for other commitments. The store personnel called the police and that started the legal nightmare that seemed like a “train out of control” for the innocent couple.

What seemed like an minor disagreement to John and Jill turned into a situation where John could be sent to prison. Imagine their horror and disbelief at this predicament.

Unfortunately, occurrences like this are not widely reported and the general public does not realize such injustice can occur to anyone. This is a prime example of how important it is to seek the best criminal defense lawyer you can for a domestic violence case, even if it appears, on the surface, to the accused, to be merely a misunderstanding that should be quickly cleared up.

If you or someone you know has been arrested or charged with that kind of offense I urge you to visit my web site at http://www.edmondgeary.com to discover how to protect your rights and get the right attorney for your case.

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DUI and Jail for Paris Hilton

May 10, 2007

Should Paris Hilton Should Go to Jail or Do You think that the Court has Gone Overboard in the 45 day Sentence for Violating Probation?

And, what would likely happen to you, if you did what she did?

First of all, let’s take a look at what happened with the original DUI charge stemming from an incident on September 7, 2006. That evening at about 11:00 authorities stopped Paris when they noticed her driving recklessly. She appeared intoxicated and had a blood alcohol level of 0.08 percent, which is a violation of law, not only in California, but most states, including Oklahoma.

She was sentenced to 36 months probation, alcohol education and $1,500 in fines. This is not a stiff sentence and was certainly reasonable for a first offense.

Then on January 15, 2007 she was stopped by the Highway Patrol, who pointed out that she was driving on a suspended license. They had her sign a document acknowledging that she was not allowed to drive.

One month later, on February 27, Hilton was stopped, at about 11 pm after her car was seen speeding without her headlights on. At this point she was charged with violating her probation.

Paris was also supposed to enroll in an alcohol education program by February 12, which she also had not done.

At her recent hearing, for which she was late, she said she didn’t know her license was suspended and that she had other people who took care of all of her mail and paperwork.

Evidently, the judge thought “Enough is enough!” Paris had displayed total disregard for the whole legal process, not obeying any of the probation terms……being stopped TWICE for driving with a suspended license…..and not enrolling in the alcohol education program…. then adding salt to the wound by showing up late for court and saying she was unaware her license was suspended!

After 30 years in criminal defense, I’m not surprised the judge sentenced her to 45 days. Over the last few years the judicial system has gotten harsher when it comes to DUI related matters and I personally don’t think the judge would have been more lenient with anyone else with this type of repeated behavior and after so many chances.

The courts are generally more lenient in a first DUI offense if no one was hurt in the incident and if there are no other aggravating circumstances. However, these days, the courts are examining things more closely—as society has kept demanding over the years.

Things that used to be overlooked in past years are now considered in the court’s determination of a sentence for the defendant accused of a DUI or related crime.

That’s why it’s important that someone who is accused of a crime has an experienced lawyer who knows and understands the nuances of each judge’s and each prosecutor’s approach to different crimes and their punishments.


A Verdict for Fairness – Even for a Lawyer

May 8, 2007

Last month, April, 2007, another local attorney in Oklahoma City took his case to jury trial. But the case was not the case of his client. This time the District Attorney accused the attorney himself, of a crime. While I’m not condoning what the lawyer did….as he truly should have known better than to get into such a situation….I was glad to see a demonstration of a sense of fair play by our jury system.

In this case, the District Attorney accused the lawyer of trading sex for a reduction of his fee. The lawyer represented a man in a criminal case, and the man’s wife was a prostitute. Allegedly, the lawyer suggested the wife perform a sex act on him as partial payment for his fee.

An audio recording was included in the evidence. The woman was wired by the police to record her conversation with the accused lawyer. The police also claimed that they burst into the lawyer’s office where the woman and the lawyer were, and the accused lawyer stood up, his pants were unzipped and he was tucking in his shirt. The police also claimed the lawyer was captured trying to destroy a tape recorder found on the woman, although the police claimed this was a dummy tape recorder they had planted on her.

Did the police set up the lawyer for this crime? Under state law, for the evidence to constitute “entrapment”, it must be established, ordinarily by the accused, that the accused “had no previous intent or purpose to violate the law” until the police suggested the crime to the accused. It must have been the original idea of the accused. Otherwise, it could be entrapment.

On the other hand, if the defendant was ready and willing to commit the sex crime whenever an opportunity arose, and the police merely offered the opportunity, then entrapment should not be a defense, according to a strict interpretation of the law.

If the jury found that the defendant “had no previous intent or purpose to commit any such sex offense, and further, that he did so only because he was induced or persuaded by some agent of the police, then the government has seduced an innocent person, and the defense of entrapment was a good defense.”

As the trial unfolded, the prosecution offered two more witnesses, two women, in addition to the prostitute witness, to testify that the accused lawyer suggested to them they have sex with the accused lawyer in exchange for a lowering of his fee in his representation of them in their cases. This was important evidence because the jury was shown evidence that the accused lawyer already had a “previous intent or purpose to commit ” an offense like this.

The prosecution presented their evidence, including the police who arrested the accused lawyer with the prostitute, the prostitute herself, and the two witnesses who testified about their encounters with the accused lawyer before this incident.

Then it was the turn of the accused lawyer to testify, but he declined to testify. An accused is allowed to do this, of course, under the Fifth Amendment, and the jury is instructed under the law they are prohibited from considering this, when they are considering a verdict, as evidence of guilt. Nevertheless, individual jurors are sometimes suspicious of an accused who does not testify, and they do sometimes consider an accused guilty for that reason, in spite of the law. So it is a gamble not to testify as a witness in one’s own defense.

At the conclusion of the evidence, the prosecution argued that the accused lawyer instigated this whole thing and he had followed through with the act. He had traded something of value (his legal services for the prostitute’s husband) for the sex act, thus purchasing sex. They argued this was both solicitation (for initiating the transaction) and that it was prostitution for carrying out the sex for money.

The defense attorney admitted the accused had had sex with the witness, arguing the whole thing was the idea of the police to ensnare him.

The prosecution countered this argument by saying that, even if the initial idea was not that of the accused, he certainly got on board with the idea, so he did pay for the sex. Therefore, the prosecution argued, the accused was guilty at least of the money-for-sex prostitution. The prosecution argued it did not matter who initiated this transaction for them to prove the accused did willingly follow through with the illegal act.

Because of the two additional witnesses demonstrating the accused lawyer’s prior intent to commit a sex offense, the defense of “entrapment” was weak. None the less, the defense argued that the police just set him up, regardless of who did what. This argument is not within the strict boundaries of the instructions of the law because either it is or it is not entrapment. And “setting up someone’ is not strictly a defense under the law. Of course, the District Attorney said that the defense did not show “entrapment”, and therefore the jury must convict the accused.

But the jury did not convict the accused lawyer.

You see, it mattered to the jury that the police did set up the accused lawyer. This is what individual jurors said in interviews to the newspaper after the verdict. That is the interesting part. The jury may not have accepted the strict guidelines of law, the strict instructions of law given by the court. Instead the jury decided it was unjust to convict someone in such circumstances. That is why the jury verdict was interesting.

The defense admitted the accused did have sex with the prostitute-witness, and the defense may or may not have been able to prove entrapment under the law. But the jury either disregarded the testimony of the two prior clients of the accused and therefore found entrapment or probably, the jury found more compelling the unfairness of the police setting up the accused so that it did not matter to the jury whether the accused met the legal definition of “entrapment”. The jury brought back a verdict for fairness.