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    Domestic Violence

    By H. Michael Steinberg, Colorado Criminal Defense Lawyer

    If the police or the district attorney’s office labels your case a “domestic violence” or “special victims” case, then your case takes on layers of difficulty not associated with other cases in the system (even compared with cases of seemingly greater violence).

    The real reason these cases take on extra layers of difficulty is a simple, basic motivation for human behavior: fear.  Every agency that comes into contact with a domestic violence case (police, prosecutor, and judicial) is driven by fear of the consequences if this case is going to be the case.

    The case is the seemingly “minor” domestic incident in which the accused walks away from the courtroom, returns home, and murders the complaining witness. Such cases, however rare and unpredictable they are, universally make headlines throughout the city.

    The judge is blamed, the police are blamed, and the prosecutors are blamed because it is easy to blame them. (Why the criminal isn’t blamed is a good question.)  Careers are held back and even ruined as a result of such publicity. Is it totally insane? Is it wrong and unfair?  Of course.  But that is the fear that is underneath the way the system treats nearly all domestic violence allegations.

    And as you might expect, a system driven by fear leads to unexpected, illogical results.

    The Police

    The first step in this fear-driven process is police interaction.

    Police officers who respond to a call of domestic violence (regardless of who makes the call) are required by Colorado law to make an arrest (or at least this is what the police will often will say to the people they arrest). This policy exists because the police don’t want to be blamed for failing to arrest a person who five minutes later murders his/her spouse. Everyone seems to believe that the police can, or ought to be able to, predict the future.

    Initially such a police policy might even seem a reasonable response on the “If it saved one life…” theory.  The problem, of course, is that such a policy sweeps up vast numbers of idiotic, childish, stupid situations into the criminal justice system. It is a shining example of just how bad the criminal justice system is at dealing with family issues.

    The police policy is really a fear-driven means to pass the responsibility for each case to someone else, namely the district attorney’s office.  “Arrest everyone and let the prosecutor sort it out” is a fair summary of the police policy. Having arrested everyone possible, the police will never be able to be held responsible by The Denver Post for a later murder.  “All we can do is arrest them.  It’s up to the prosecutor to make sure they get punished,” the police department will say.

    The Prosecutors

    The police approach might “work” if the prosecutor did “sort it out.” But as a practical matter, the  prosecutor doesn’t “sort it out” for the same reason the police won’t…they don’t want to take responsibility for using their judgment.

    Once someone actually uses his discretion to make a decision based on reason and logic, that person is subject to being held responsible by The Denver Post if it turns out that it was the case.

    So the district attorney’s office sometimes seems to take a “prosecute everyone and let the judge or jury sort it out” approach.  At arraignments, for example, the prosecutors as a general rule request bail in just about every single case they label domestic violence, regardless of the defendant’s background.

    This forces a decision on the judge, who must actually make a decision.

    By requesting bail, the prosecutors protect themselves from criticism by The Denver Post by making it possible for them later to say “We requested that the judge set bail.  We did all we could do.”  If the judge decides to release a person without bail, then The Denver Post responsibility rests with the judge.

    The Judge

    Now this of course places the judge in a politically awkward position. The  judge must actually use his or her discretion; therefore, the judge is subject to The Denver Post “Judge is responsible for all future actions of people who come before her” criticism.

    How judges respond to this difficulty depends on the personality of the judge. Sometimes  judges will give the prosecutors exactly what they ask for. In other words, if the prosecutors ask for $500 bail, the judge will set exactly that. This is actually an interesting way of attempting to deflect Denver Post criticism. If the defendant makes bail and kills someone, the judge can always take the position that he set exactly what the prosecutors asked for, and that he must assume that the prosecution evaluated the case (and the defendant) when requesting the bail.  The  judge can take the position that if the prosecutors had requested higher bail, he would have set higher bail, and the tragedy would never have happened.

    Temporary Orders of Protection (Restraining Orders)

    Add temporary orders of protection (TOPs) to the above recipe for seemingly absurd results, and you begin to gain an understanding of just how terrible criminal court is at dealing with domestic issues.

    A restraining order (RO) is an order from a court to stay away from another person and to avoid doing what is otherwise illegal anyway. Violating an RO is a misdemeanor offense and sometimes results in another charge of domestic violence. Ideally, ROs are designed to provide a powerful reason to, in fact, stay away from another person (the threat of criminal conviction and jail).

    Judges in Colorado issue ROs in virtually (almost without exception) every case in which the  prosecutor requests one. Right or wrong, that’s the way it is.   Not issuing an order of protection is perceived as an extremely dangerous thing to do. The Denver Post would have a field day if something happened in a case in which a judge refused to issue a requested RO.

    In the best light, this process could be described as a “Chicken soup, it can’t hurt” philosophy. Forget the fact that law is supposed to operate based on reason rather than on whether a particular ruling “can’t hurt.”

    ROs provide no real protection, however. No TOP has ever stopped a bullet or deflected a knife. Also, the RO gives the complaining witness, a private citizen, the power of arrest over another person. Once you have an RO in your favor, you can have the named person arrested at your whim. All it takes is a call to the police. “He saw me on the street and threatened to kill me” is all it takes. The police don’t want to “take any chances” so the person is arrested. Let the prosecutor sort it out…and the prosecutor doesn’t want to be blamed for anything, so they prosecute and let the judge (or jury) sort it out.

    Think about who is given that power of arrest: a person who is, by definition, in an extremely emotional state and either justifiably angry or a prior maker of false allegations. Either way, the potential for abuse is extreme. Police and prosecutors refuse to accept that the potential for abuse (and actual abuse of ROs) is incredible. None of them wants to take the responsibility for examining claims of violations of ROs, because none of them wants to take responsibility, even if they made a perfectly rational decision in a case. That future human behavior (especially in the realm of strong emotions) is impossible to predict accurately doesn’t matter to The Denver Post, so it doesn’t matter to the system.

    In other words, given this fear-driven system, don’t expect logical results.

    The policies of the district attorney’s office, the police, and the reaction of judges to cases involving domestic violence combine to treat many cases as if they were the case of the madman who will immediately kill everyone involved. It is so clearly a case of covering themselves against absurd The Denver Post stories, that they often don’t seem to understand how absurd the results often are.

    For example, consider the case of a  girlfriend or wife who does not want to proceed against her boyfriend or husband, and who affirmatively states that some of the claims she originally made when she was angry were not true. She affirmatively said she did not want a RO so that they could be together. The prosecutor invariably refuses to dismiss the case. Since the prosecutor refuses to dismiss the case, the case has to be set for trial, and invariably over the over the firm’s vigorous objection, a  judge still issues a full restraining order–ordering the defendant to completely stay away from the complaining witness.

    Does it make sense? Of course not. But that’s what happens when the system is driven by fear.  Results can be irrational.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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