In United States v. Johnson, Tuesday, the sole issue before the Eleventh Circuit Court of Appeals was whether “a single incident of extreme domestic violence” was sufficient to terminate Johnson’s supervised release. The court had no problem finding that it was. It did so even though it did not explain the legal reasoning for its finding. But the facts were sufficiently horrendous that the court did not seem to care. The court pointed out that Johnson stood on the victim’s hair while he battered her and that three days after the battery the victim had bruises all over her body and the footprint of Johnson’s tennis shoe on her chest.

I have not written about the allegations of domestic violence against San Francisco Sheriff Ross Mirkarimi. For one thing Ross is a friend of mine and I don’t want to risk the impartiality that I attempt to obtain in this blog. ¹ Mirkarimi was charged with domestic violence based upon a New Years Eve incident involving his wife, eight days before he was sworn in as the city’s new sheriff. ²

Last week, during jury selection, Mirkarimi entered into a plea bargain with the district attorney. He plead to a misdemeanor charge of false imprisonment and the other charges were dismissed. After entering the plea, Mirkarimi, in a discussion with the press, said that his legal bills were $125,000 and rising. ³ He said that the bills were a factor in entering the plea. This angered District Attorney George Gascon who said that if Mirarini was innocest his plea should be withdrawn and he should go to trial.

The problem with Gascon’s statement is that a lot of innocent people plead guilty. It is often called an Alford Plea. ⁴ Under an Alford Plea a defendant pleads guilty, even though he/she does not admit to being guilty and the court makes a finding that there is sufficient evidence to convict the defendant.

It is not particularly unusual in my caseload that a client who I know to be innocent pleads guilty. It is not something I like and I tell the client so. But I recognize that clients must make there own decision. The reasons for such guilty pleas vary considerably. One client had a sick father he had to take care of. He had been offered a plea bargain that would allow him to get out of custody if he plead guilty and he did not have money for bail. In several cases I represented indigent clients who were receiving government benefits. When offered a plea that would allow them to get out of custody they grabbed it. If they had not gotten out of custody they would have lost their government benefits and would have been unable to pay the rent. With the threat of being homeless they entered into pleas and got out of custody.

The ironic part of Gascon’s claim that he does not accept guilty pleas from innocent people is that the above clients could get out of custody, in light of the district attorney’s admission that the client did not deserve further time in custody and prove their innocence at trial if the district attorney would agree to releasing the client on their own recognizance but as a rule the district attorney will not do that.

When innocent clients enter a guilty plea I tell the judge that the plea is against my advice. Then the judge either asks me if there are facts in the police report under which a jury could find the client guilty or the judge ask for a copy of the police report and reads it before taking the plea.

Certainly there are many reasons that pleas are entered. I take Mirkarini’s attorney’s word that he takes responsibility for the crime and that the plea was not an Alford Plea. But one problem he will have if it is an Alford Plea, that is unique to domestic violence cases, is that it is contemplated that as part of his sentence ⁵ he will be sentenced to complete a 52 week domestic violence program. As a general rule the domestic violence programs won’t accept a defendant unless the defendant admits to having committed a violent act.

Russell E. Booker and Michael Wyman plead guilty in separate domestic violence cases to assault in Maine. Both cases occurred some years ago. More recently Booker accidentally shot a hunting partner and Wyman shot a bullet into the air during a domestic dispute. Both were indicted and convicted in Federal court for possessing a weapon after a misdemeanor domestic violence conviction.

Booker and Wyman appealed to the First Circuit Court of Appeals alleging that since Maine’s assault law does not require a specific intent to commit a crime the convictions cannot serve as a basis for the Federal convictions. The state statute allows a conviction for recklessly assaulting someone. They also alleged violations of their Second Amendment right to possess a gun.

The Federal statute banning possession of guns (18 USC 922(g)(9) by those convicted of misdemeanor domestic violence reads:

That it shall be unlawful for any person . . . (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The First Circuit rejected the defendants argument that the state statute had to be an intentional crime. Nowhere in the Federal statute does it require that the domestic violence statute have a particular mens rea or intent. Therefore the court ruled that Congress in passing Section 922(g)(9) did not mandate a mens rea and therefore the convictions are valid.

Pointing to Heller in which the Supreme Court recognized the Second Amendment right to possess a gun the court pointed out that the Supreme Court recognized that certain categories of people could be banned from possessing guns. The First Circuit held that due to the significant number of people killed with guns in domestic violence disputes that Congress can prohibit misdemeanants convicted of domestic violence from possessing guns.

The irony here is that while looking at the intent of Congress in ruling that a particular mens rea is not necessary for a conviction under Section 922(g)(9), the Court did not look at the intention of the First Congress which passed the Bill of Rights. Certainly the first Congress did not intend to limit the ability of misdemeanants from possessing weapons. It is unlikely that domestic violence was even a crime in 1789.

ICE claims to have definitively decided not to allow individual counties to opt out of its Secure Communities Program. A number of counties including California’s San Francisco and Santa Clara counties as well as Virginia’s Arlington County and Washington D. C. have requested to opt out of the program following the decision of the state Attorneys General to enroll the state in the program.

A community that signs up for Secure Communities electronically provides all fingerprints of those arrested and booked to Homeland Security’s Immigration and Customs Enforcement unit (ICE).

Theoretically, according to ICE, it only uses the information to deport the most serious violators of our laws. But, the truth of the matter is that the program has been used to deport numerous individuals who have no record or who have only infraction or misdemeanor records.

Furthermore, according to San Francisco Sheriff Michael Hennessy the program scares people into not reporting crimes. For example a mother may not report her husband for domestic violence if she is afraid that the father of her children and her only means of support will be deported. The same reasoning may prevent an elder person from reporting a child who is abusing her or a neighborhood kid who is writing graffiti on the walls.

Last week I discussed the case of Ken Kratz, the District Attorney of Calumet County Wisconsin who was accused of sending sexually abusive text messages to a victim in a domestic violence case.

Kratz’s response seemed to be that he made an innocent mistake. He refused to resign. He said, “(I hope) my entire career won’t be judged on a single series of text messages. But I know it will be.” He admitted the behavior was inappropriate but he said it came from a lapse of judgment in a career of being “a zealous advocate” for victims of crime.

But allegations have come forward of at least two other women, one a law student who he helped clear her record and the other another victim of domestic violence who he abused with text messages. If these are true it is hardly a single lapse of judgment but a pattern of sexual misconduct.

Kratz is now on medical leave and the governor is looking for ways to remove him from office.

Kratz should be looking for a good criminal defense attorney to defend him against possible stalking charges and to defend him before the state bar for bringing discredit to the bar.

Calumet County, Wisconsin District Attorney Ken Kratz sent a series of sexually implicit e-mails to Stephanie Van Groll while he was prosecuting her ex-boyfriend for domestic violence. Among the statements in the e-mails were:

“Are u the kind of girl that likes secret contact with an older married elected DA?”

“I know this is wrong. I am such a honest guy and straight shooter.”

“You may be the tall, young, hot nymph, but i am the prize.”

At the time of the incident Kratz was chairman of the Wisconsin Crime Victims’ Rights Board which he helped to found and which has the power to reprimand public official who mistreat crime victims. With pressure from the State Department of Justice he resigned from the Board.

Apparently he broke no rule of professional conduct in sending the e-mails. The Wisconsin Department of Justice found no criminal violation. The Wisconsin Office of Lawyer Regulation found Kratz’s behavior to be inappropriate but also found that it did not violate any rule of professional conduct.

While he may not have broken any laws or violated any rules of professional conduct his effect upon Van Groll and domestic violence victims in general cannot be overlooked and some have called for his resignation. Kratz has refused to resign and the only sanction available to the public is to defeat him when he runs for reelection in 2012.

One problem that domestic violence victims have is their inability to trust people, particularly men and authority figures after the incident. They have trouble developing trusting relationships with lawyers and therapists. Kratz’s actions made it difficult for Van Groll to cooperate in the prosecution ¹ of her ex-boyfriend. As Van Groll said, she had three days of hell as a result of the e-mails.

The First Circuit Court of Appeals upheld a finding of summary judgment in favor of the City of Sandown, New Hampshire, its former police chief and a police officer. Ralph Holder and his estranged wife attended their son’s soccer game. During the game it started to rain and Mr. Holder asked his wife if she had brought a long sleeve shirt for their son. She said she hadn’t. A verbal confrontation commenced. Eventually Ms Holder bumped her husband and he instinctively pushed her away.

Ms Holder called the police. When the officers arrived Ms Holder told them that her husband had pushed her. Mr. Holder then told the officers that his wife had initiated the verbal confrontation and that she made the initial contact. He urged them to talk to nearby witnesses. He was then arrested and charged with simple assault. After the arrest the officers spoke to a couple of witnesses. None of the witnesses saw the confrontation but one said he heard that Ms Holder initiated the dispute.

The trial court granted summary judgment and Mr. Holder appealed on Fourth Amendment grounds as applied to the states by the Fourteenth Amendment.

An arrest violates the Fourth Amendment if is not based on probable cause. Probable cause exists when

at the time of the arrest, the “facts and circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Probable cause requires only a probability that the arrestee committee the crime. Certainty is not necessary.The officer’s decision needs only to be reasonable.

According to the court the officers have no duty to check out the suspect’s defenses. Once they decide that probable cause exists and they can do that solely on the allegation of the alleged victim, they do not have to talk to witnesses or otherwise investigate whether or not the suspect committed the offense.

Mr. Holder further argued that New Hampshire law requires the officer to determine who was the primary physical aggressor. The law states

an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer. When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but should arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

N.H. Rev. Stat. Ann. § 173-B:10, II.

But according to the First Circuit a state may impose restrictions on arrest greater than what is demanded by the Fourth Amendment. But the Federal court need not consider state law. It is limited to the requirements of the Fourth Amendment, Since the Fourth Amendment only requires that the officer determine whether probable cause exists and since based upon Ms Holder’s statement probable cause existed summary judgment was properly granted.

The charges against Mr. Holder were eventually dismissed. But he had to suffer the consequences of being arrested. Perhaps he spent some time in jail. He may have had to hire a lawyer. If he had money he may have had to pay for a bail bond. He could have had consequences on his job due to time missed either while in jail or attending court appearances. His wife may have gotten a restraining order preventing hem from seeing his son. His child support may have been raised if as a result of the arrest he was not able to share custody or have visitation with his son.

All of this could have been prevented if the police had done a thorough investigation before arresting Holder. As a result of the grant of summary judgment Holder is not entitled to any compensation for the poor investigation prior to his arrest.

On Monday we discussed prior bad acts evidence in a narcotics and guns case. Today we have prior bad acts evidence in a Tenth Circuit parental kidnapping case.

Vojko Rizvanovic is the father of two young children. He was in a long term relationship with their mother. In 2006 she took the children and moved into a shelter. The family court found that Rizvanovic committed emotional and domestic abuse against the children and their mother. As a result it gave the mother sole custody.

During an overnight visitation Rizvanovic took the children to Australia with the plan to then take them to Macedonia. He was arrested on a stop over in Vienna.

At trial, Rizvanovic argued, as an affirmative defense, that he took the children abroad to protect them from being abused by their mother who had a history of mental illness. During cross examination on the international parental kidnapping charges the court allowed the prosecutor to question Rizvanovic about the family court finding that he abused his family. The Court also permitted rebuttal evidence from the defendant’s seventeen year old daughter regarding his abusiveness. The court instructed the jury that the evidence was not being admitted for the truth of the matter asserted but merely to assist in judging Rizvanovic’s credibility.

Rizvanovic argued that whether or not he was abusive was not relevant to whether he took the children out of the country to escape their mother’s abuse. Both parents could be abusive and his abuse, if any, was not relevant. But the court found evidence of his abuse relevant on the issue of motive. He claimed he was trying to protect the children. The judge felt and the Circuit court agreed that if he claimed that he was trying to protect the children evidence of abuse which was contrary to his claim to protect the children was admissible.

But certainly when you compare the probativeness of the evidence with the prejudice to Rizvanovic it is significantly more prejudicial than it is probative. Considering that his defense was based upon a claim that the children’s mother abused the children evidence that he abused them is prejudicial while of limited probative value on the issue of his credibility. But as we pointed out Monday appellate courts are reluctant to reverse trial court decisions, based upon the admissibility of evidence.

The Supreme Court, back from its winter vacation decided United States v. Hayes, In 1996 Congress extended the law banning ex-felon from possessing a gun to include people convicted of misdemeanors involving domestic violence. Under Hayes the prior misdemeanor need not be charged as a crime of domestic violence but it merely be an assault or a threat against one who is in a domestic relationship with the defendant.

The term a “crime of domestic violence” is a term of art referring to a particular charge. For example in California Penal Code Section 273,5(a) defines the crime as:

Any person who willfully inflicts upon a person who is
his or her spouse, former spouse, cohabitant, former cohabitant, or
the mother or father of his or her child, corporal injury resulting
in a traumatic condition, is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one
year, or by a fine of up to six thousand dollars ($6,000) or by both
that fine and imprisonment.

Certainly Congress knew this when it passed the statute and by using the term it must have meant one convicted of domestic violence.

But the Court’s reading of the statute has a number of problems. As Chief Justice Roberts says, in dissent, the majority’s view will make it much more difficult to get a conviction. If the predicate offense is one in which the defendant is convicted of domestic violence, it would be fairly easy to get a conviction by bringing into the courtroom the defendant’s rap sheet or other documents to show that there is a conviction for a charge of domestic violence. But when the conviction is for a crime other than domestic violence, let us say simple battery, as in Hayes it will be necessary to retry the predicate offense before a jury and to have that jury under >Apprendi find the that the defendant committed the act of domestic violence beyond a reasonable doubt. As any prosecutor will tell you it is hard enough to get a victim in a domestic violence case to testify once and it will be impossible to get the victim to testify a second time in a weapons case that may not even involve the victim.

Many defendants have entered into plea bargains, pleading to battery instead of domestic violence because they did not want the particular consequences of a domestic violence conviction. Now as a result of Hayes they will not get the benefit of the bargain. This will make it harder to plea bargain cases in the future.