Domestic Violence

photo (4)Domestic violence cases make up a large percentage of the caseload at prosecutors’ offices around the country. Colorado is no exception. Domestic violence cases can be difficult and complex for the prosecution, for the defense lawyer, and for the parties involved. Jail sentences are a very real possibility.

The attorneys at Parker Lawyers are experienced in handling domestic violence cases. Both James T. Anest and Morley Swingle are former prosecutors. Between them, they have over 35 years of experience as prosecutors. Swingle has taught sessions on prosecuting domestic violence cases for prosecutors. His article “Unhappy Families: Prosecuting and Defending Domestic Violence Cases,” published in the Journal of the Missouri Bar, has been widely quoted around the country. Click here to read the article. A study of domestic violence prosecutions in Missouri conducted by the University of Missouri School of Law praised Swingle’s policy for handling domestic violence cases while he was prosecutor. See Rebekah E. Bromberg & Brendan O. Kelly, “Investigating the Response to Domestic Violence in Four Missouri Counties,” 60 J. Mo. Bar 70 (2004).

If you or your loved one is being investigated or charged with a domestic violence offense, you should involve a criminal defense lawyer at the earliest state of the investigation, to make sure the accused has the best possible defense. Often, the police and prosecutor are not aware of all of the facts at the time a charge is filed. Sometimes, charges are filed in haste, before mitigating facts are known. Very often, the best defense in these criminal cases consists of a thorough knowledge of the law of evidence. The law of hearsay and the Sixth Amendment right to confront witnesses can both play a key role in domestic violence cases.

The following information about domestic violence may apply in your situation:

1. Domestic violence can be deadly. If you are in a relationship that involves domestic violence, you need to get help immediately, whether or not the police have yet been involved. Many homicides result from domestic violence. Don’t wait until it is too late to get out of a toxic situation where arguments turn violent. Most communities in Colorado have a “safe house” for women. In the Denver area, for example, the Denver Safehouse phone number is (303) 318-9989, and the Women’s Crisis and Family Outreach Center’s 24-hour Emergency Line is (303) 688-8484.

2. Colorado has mandatory arrest laws. An abusive relationship typically involves a “cycle of violence,” characterized by three phases: a tension-building phase, an assault incident, and a loving-repentant phase. Most authorities believe that the best way to prevent domestic violence is to stop the “cycle of violence” by implementing “mandatory arrest” and “no-drop” policies. For that reason, when a police officer has probable cause to believe a person has committed an act of domestic violence, he must arrest that person “without undue delay.” Once the suspect is arrested, that person will be booked into jail and cannot be given a bond until the victim has been informed of the bond hearing and given a right to be heard. While this policy is laudable in its intent and has undoubtedly saved lives on occasion, it can result in innocent people spending time behind bars based upon false statements made in anger the heat of the moment.

3. “No-Drop” Policies. To combat domestic violence, most prosecutors’ offices have “no-drop” policies, by which they do not routinely dismiss domestic violence cases simply because the victim has changed her mind and wants the charges dropped. Once a charge is filed, only the prosecutor can make the decision whether the case will go forward or not. The best defense in a domestic violence case often involves helping the prosecutor see that justice would not be served in that particular case by continuing the prosecution against an innocent person.

4. The “Victim” may want to get her own lawyer. If you are a victim in a domestic violence case, you may want to get your own lawyer to protect your interests. The lawyer representing the accused does not represent you – he or she represents your significant other, whose interests may not be identical to yours. The prosecutor does not represent you – he or she represents the state, whose interests may not be the same as yours. If you are changing your story from the version you gave the police on the night the accused was arrested to something else, you could end up facing criminal charges yourself for lying to the police on the night of the arrest. On the other hand, if you persist in continuing to give a false version of what happened by lying at a hearing or trial involving the accused, you could face perjury charges. The bottom line is that it is a good idea to get legal advice from a lawyer who represents YOU, rather than the accused or the state.

5. Domestic Violence Classes. Any sentence imposed by the judge in a domestic violence case will include an order to complete a treatment evaluation and any follow-up counseling. This counseling should be welcomed by both the accused and the victim. It is a chance to heal the damage and improve the relationship and the quality of life for the entire family. A state agency called the Domestic Violence Management Treatment Board approves both the treatment providers and the treatment. In low-level misdemeanor cases, the treatment might be 36 one-hour sessions over the course of 36 weeks. It is often more intensive. The only time treatment is not imposed is when the defendant is sent to prison.

6. Repeat Offenders Face Felony Time. In Colorado, a domestic violence crime that would normally be a misdemeanor can be enhanced into a class 5 felony when the offender has previously been convicted three or more times of acts of domestic violence. The felony charge carries a range of punishment of up to three years in prison. This is all the more reason a first offender should not plead guilty to a crime he or she did not commit. The conviction might be used against you later to enhance a subsequent crime to a felony.

7. Domestic Violence Convictions Impact Gun Rights. Under the Lautenberg Amendment to the federal Gun Control Act of 1968, a person convicted of a domestic violence charge – even a misdemeanor — cannot possess a firearm. The ban is a lifetime ban. It is another reason not to plead guilty to something one did not do. Similarly, a person cannot possess a firearm under federal law if an order of protection was issued against him after a hearing. See, in general, 18 U.S.C. Section 922(g)(9) and Jodi L. Nelson, “The Lautenberg Amendment: An Essential Tool for Combating Domestic Violence,” 75 N.D.L. Rev. 365 (1999).

8. No Contact With Victim. Defendants charged with domestic violence cases are usually ordered to have no contact with the victim, either as a condition of bond or as a mandatory protection order under C.R.S. Section 18-1-1001. In a situation where the victim and the accused want to continue to live together, they may not do so unless and until the lawyer for the accused has been able to get this “no contact” order removed. This is another reason to get a criminal defense lawyer involved as soon as possible.

9. Victim’s Rights. Under the Colorado Constitution, domestic violence crimes are considered “victim’s rights” cases, meaning that the victim has the right to consult with the prosecutor before any plea offers are made, and to consult with the prosecutor about the issue of bond. The victim has the right to speak at sentencing and to be notified when an incarcerated defendant will be released. THE VICTIM SHOULD BEAR IN MIND, HOWEVER, that she is NOT REQUIRED to talk to the prosecutor at any time and cannot be forced to give a statement if she does not wish to do so. She can be forced to come to court by being served a subpoena, but she cannot be forced to talk to the prosecutor or any investigator outside the courtroom.

The lawyers at Parker Lawyers are experienced in handling domestic violence cases. Whether you are the accused or the victim or both, we have the experience and training to help you get through this difficult time.

Call Parker Lawyers at (303) 841-9525.