Domestic violence. Intimate partner abuse. Wife-beating. By whatever name you call it, according to the National Coalition Against Domestic Violence (NCADV) 10 million Americans find themselves victims of some form of physical abuse in the family. Considering that each instance involves both an alleged perpetrator and a complainant, that equates to 20 million people involved in family violence or over 6% of the U.S. population! According to the same source 1-in-3 women and 1-in-4 men will, in their lifetime be the victim of some form of domestic abuse.
October is Domestic Violence Awareness Month and last Thursday was #PurpleThursday, where stakeholders do their best to raise awareness for this issue. As a criminal defense lawyer, I represent men and women across Texas who have been accused of, among other things, state charges for assault family violence, assault family violence impeding breathing or circulation, continuous family violence, family violence with a previous conviction for family violence, and aggravated assault against a family member involving either a deadly weapon or serious bodily injury.
At social gatherings, one of the most common questions I get asked either explicitly (rude) or implicitly is, “how do you defend wife-beaters?”
As a person of faith, depending on my audience, I’ll sometimes turn the question around and ask, “who do you think Jesus was more like, a prosecutor, or a defense attorney?” The faithful will know that Jesus intercedes our behalf against the accuser for the wrongs that we are all guilty of, and that breaking any of God’s laws makes us guilty of breaking the rest.
I might also reference the many clients I’ve represented who have been the victims of false accusations for various reasons: immigration benefits, an upper hand in divorce proceedings, revenge, just to name a few.
Or I might talk about the many spouses who have hired me on behalf of their husband or wife after they regret involving the government in what they wish had remained a private matter. Now they find their partner incarcerated, facing job loss. The complaining witness faces court-mandated long-term separation from their partner, solo parenting, back-breaking expenses to finance a second place to live for their spouse, and so much more disruption to their daily lives. Many times spouses of my clients tell me that they wish they’d never called the police, that everything has been blown out of proportion. They never thought things would come to this. And that they just want the whole thing to end.
So while the two thirds of women and three quarters of men who’ve never been involved in this kind of thing ask me, essentially, “how do you live with yourself,” the questions I get professionally are far different: “How do we get this case dismissed?” “How do I get access to my kids again?” “How do I get permission to move back in with my family?” “What rights do I have if I’m falsely accused of domestic violence?”
In this post, I’ll answer those questions and provide an overview of my law firm’s approach to domestic violence charges. How we think about our client’s priorities, how we begin by addressing onerous bond conditions, how we approach witnesses and evidence, and ultimately, how we get the best possible outcome for our clients.
First off, there are two ways that an accused person’s journey can begin.
On the one hand, the alleged abuser might be present when police arrive. Maybe they try to tell the police their side of the story. I generally don’t advise this. If police are investigating domestic abuse accusations, odds are you’re going to jail and you need to call a criminal defense attorney right away. Our firm has a 24-hour-a-day answering service, and personally, I’m up most hours of the day and night. If you call, you will always get a live person, and if you need urgent legal advice as police are on the scene, we will always try to get you to a licensed attorney right away.
The reason I generally advise against talking to police is right in the Miranda warnings that you WILL NOT GET if police talk to you while they are just investigating the scene: “everything you say can and WILL be used against you in court.” And although you have the RIGHT to have your Miranda warnings read to you under some circumstances, there’s a reason why you usually won’t hear “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?” It’s because your right to have your rights read to you don’t kick in until you’re UNDER ARREST. That’s how police get around having to warn you that you’re walking into a trap before they start bolstering their case with your words.
You might ask, “But what if I just tell them what really happened? She hit me first. I was just defending myself. Surely the police will hear my side of the story and side with me, right?” Wrong. While I have a selection bias—I only see the cases where charges have been filed—I routinely see officers who charge clients with domestic violence after they have given a full truthful account of what happened that should have exonerated them if they had been believed.
So if police arrived while you were at the scene of the alleged crime, you’ll be arrested on the spot.
On the other hand, you may not be arrested at the scene of the alleged crime. Perhaps you’ve wisely left to de-escalate a tense situation or to cool your head. Perhaps the complainant has made an accusation up out of whole cloth in your utter absence. Perhaps the complainant has waited to make a report until sometime later—either by calling 911 or by walking into a police storefront.
At any rate, if you’re not arrested on the spot, a warrant will issue for your arrest. You might here Houston criminal attorney’s like me refer to this as a “to-be” warrant. It’s a stupid expression. It just means that the object of the warrant (you) is “to-be” arrested. Isn’t that implicit in the idea of a warrant?
In either case, you’ll want the help of a criminal lawyer right away. If you were arrested on the spot, you’ll need to make some kind of bail before you can be released. You’ll go before a magistrate, usually within hours, to get a bond set and conditions of bail. You may have a public defender at that initial hearing, or in some jurisdictions you may be unrepresented. If a loved one isn’t able to make your bail (more on bail in another post), you’ll remain in jail until you CAN make bail, or until the case is over with—which could take YEARS!
A qualified criminal attorney can argue for a bond that you can afford—possibly even a free bond called a release on personal recognizance or “PR bond,”—as well as for bond conditions that you can live with.
As a matter of course, most judges I’ve dealt with will default to ordering that upon your release you are to have no contact at all with the complaining witness. That’s regardless of whether you lived with that person or had children with them. So upon release, you’ll need to find a new place to stay until the order is lifted—which could, again, take YEARS!
At my law firm, our first goal in your case is to get you free. After that, we want to get you as comfortable as possible on bond so that these accusations interfere with your life as little as possible. Usually that means, as quickly as we can, restoring communication with your loved one if that is what you both want. Restoring access to children. Minimizing burdens of hotel costs by staying outside of the family home, and much more.
If you found out about a warrant for your arrest after the fact, we will still have these goals for you, but they’ll look a little different. Once you engage our firm, we’ll walk you through the process of doing what’s referred to as a walk-through. Not every judge indulges in them, but most do. The judge you get will be by random assignment unless you are in a small county, in which case there’s only one option for misdemeanors and one different option for felonies. But if a walk-through is an option, while we can’t ethically recommend a bonding company, we’ll talk to you about how to go through one to be prepared to make a bond, how to engage a “runner” from the bonding company to go with you to court and guide you through the process. When you’re ready, an attorney from our office will meet you in court and advocate for the lowest bond possible in your case, and the least restrictive bond conditions.
Once we’ve got you free and settled on bond conditions you can live with (hopefully), we set to work on our big goals for you: 1) keep you free; 2) protect your criminal record; and 3) end the case with you in a better personal position than you were at the start. Ultimately, when you hire us, we work for you. Whatever your goals are, those become our goals. You may want to avoid deportation. Or be set up to win a custody battle. Whatever is important to you, we hope you’ll let us know.
So how do we achieve your goals? The process begins with “discovery” and investigation. Some of the first things we’ll do after we’re hired onto a case is review the available police summary or police report and any other available evidence, and make a formal request for all evidence that the prosecution has or will have in your case. These days this usually includes a recorded 911 audio recording, photographs, and body-worn camera footage. We can usually also subpoena electronic records reflecting chatter between officers and dispatch about your case and the exact time and location of responding units, in case it becomes relevant. These things are referred to by lawyers as, “discovery.”
We’ll also work with you to guide our investigation. Maybe you have cell phone video of the event showing the complainant assaulting you. Or maybe you know someone else who does. Maybe social media can shed light on what happened—or at least the back story of your relationship and what was going on before the fight. We will follow every lead in an effort to see you cleared of all charges. Beautifully, in Texas, there are no rules mandating reciprocal discovery. That means whatever we find out in our investigation, we don’t have to share it with the prosecution. That frees our clients up to tell us and show us everything. If it’s helpful, we find a way to use it. If it’s not, ethical rules prevent us from sharing it. Instead, we have a duty to zealously advocate on your behalf and to keep your confidence.
We’ll also contact the complaining witness. We’ll consult you first about the dynamics of the relationship and situation. If you think that a cooling off period would be helpful, we might choose to wait a while. If you know that the complainant already wants charges dropped, we’ll probably call right away.
It is so incredibly common that when we call complainants they want charges dismissed and have more questions for us than our clients do. They want to know, “What are my rights as a victim?”
Let’s start here: under the Texas Constitution, Article I, Section 30, a crime victim has the right to “be treated with fairness and with respect for the victim’s dignity and privacy, and “to be reasonably protected from the accused”
That’s why judges default to ordering no contact as a condition of bond. They also almost always automatically issue a 61-day order called a Magistrate’s Order of Emergency Protection (MOEP) ordering the accused person from harassing or threatening the complainant and ordering him to stay away from certain places like the complainant’s residence and work or school. It’s these orders that we’re often seeking relief from, and also consulting with complainants about.
Additionally, under the same provision of the Texas Constitution, upon request, a victim has five more rights:
(1) the right to notification of court proceedings;
(2) the right to be present at all public court proceedings related to the offense, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial;
(3) the right to confer with a representative of the prosecutor’s office;
(4) the right to restitution; and
(5) the right to information about the conviction, sentence, imprisonment, and release of the accused.
But the Rights enshrined in the Texas Constitution don’t always answer the questions I get from complainants. They want to know specifically, “do I have to answer the phone if the prosecutor calls?” “Do I have to come to court?” “What will happen if I don’t show up?”
First off, no, if you are the alleged victim of a crime—domestic violence or otherwise—you don’t have to answer the phone if the prosecutor calls. If you send them to voicemail you can’t be fined or sent to jail. Nothing will happen to you.
–Important side note—Nothing in this blog post should be taken as an attempt to alter or influence the behavior of any witness in any criminal proceedings whether pending or prospective. And any attempt to use this post to influence or coerce a witness to testify falsely, withhold testimony, elude legal proceedings, absent herself from proceedings to which she has been legally summoned, or abstain from discontinue, or delay prosecution of an accused person would constitute witness tampering under Texas Penal Code section 36.05. Keep that in mind as we go on.
In my experience as a former state prosecutor in the Harris County District Attorney’s office is that if you, an alleged victim, don’t answer the phone after several attempts, usually a letter will be mailed to your last known address. Maybe an email will be sent. As with a phone call, you’re under no legal obligation to respond.
If a prosecutor issues a subpoena to you, you are legally obligated to come to court. And if that prosecutor has had that subpoena served to you personally (handed to you directly by a process server as opposed to sent to you in the mail or emailed to your or some other means of deliver), and if the prosecutor has the proof of the personal service (called a “return of service”), then if you don’t show up as ordered, the prosecutor could request a writ of attachment. That writ is an order by the judge to law enforcement to go get you and pick you up wherever you might be and to bring you to court. This is a remedy I have rarely seen prosecutors resort to over the years.
There is one even more harsh measure a prosecutor can take. If they get you to court and think you won’t return—say to continue testimony the next day, or after the weekend—they can ask the judge to require that you pay a witness bond—an amount of money to guarantee that you return. If you pay it, you leave court and get your money back when you are released from testimony. But if you can’t pay it, you can be jailed. It’s happened only once that I’m aware of in the sphere around me, and when it happened, it made news. (https://www.click2houston.com/news/2016/07/21/rape-victim-put-in-jail-after-breakdown-on-witness-stand/). As a result, prosecutors where I practice are VERY reluctant to engage in such cruel tactics.
Every District Attorney’s Office handles these situations differently, but the largest counties where I practice all have particular divisions of assistant district attorneys who specialize in prosecuting cases where either the complainant has made clear that she won’t cooperate with the prosecution, or that she has given a statement that conflicts with the initial report to police.
If an alleged victim doesn’t show up to court, usually the case will be assigned to one of these prosecutors. Their job is usually to look at all of the evidence and decide whether they can and should prove the case beyond a reasonable doubt. (Remember a prosecutor’s number one job is not to seek convictions but to “to see that justice is done”—Texas Code of Criminal Procedure Art. 2.01).
Although murder cases are routinely charged and proven without the testimony of the complaining witness, these cases can often be tough for the state to prove. In my experience, many (though not all) are ultimately dismissed, if the accused can bravely withstand the temptation to accept a plea agreement and force the state to decided to try the case or dismiss it.
There are many other tactics for getting a domestic violence case dismissed. Far too many for this already long blog post. But as I wrap up, I want to address one last question I often get from clients and prospective clients: “How can she lie and say I abused her and I’m the one who has to go through all of this?”
It’s true that an accused person in America has some very helpful and important rights when it comes to criminal accusations: the right to compel witnesses to testify on his behalf, the right to confront and cross-examine his accusers, the right to a trial by a jury of his peers, the right against self-incrimination, the right to an attorney, and many more. But most of these rights, enshrined in the Fourth, Fifth, and Sixth Amendments to the US Constitution have to do with a trial.
But practically speaking, before you ever get to a trial, you may have been arrested, you may have had to pay a bond, hire an attorney. The mere accusation may have cause you to lose your job, or your place to live.
And for the most part, the American legal system provides no way to make things right.
Sure, after your exoneration, you could push the prosecution to press charges against the complainant for making a false statement to a peace officer (Texas Penal Code Section 37.08). At best, that would only serve to punish the accuser by up to six months in a county jail and up to a $2,000 fine. And I have never seen a prosecutor take up that invitation.
And sure, you could sue for defamation. But what good will that do you? It won’t give you the months or even years back that you spent falsely accused, fighting the charge. At best, you might win some money from your accuser. And that supposes the accuser is solvent, that you have provable damages, and that liability is clear. And even if all that is true and you win a defamation case against your former spouse, boyfriend, or girlfriend, it could be a Pyric victory. Because by filing a defamation suit, you amplify the false narrative that you’re seeking to punish. This phenomenon has a name: the Streisand effect, after a 2003 suit filed by Barbara Streisand over a violation of privacy. Not only did she lose the lawsuit and have to pay $177,000 in the other side’s legal bills, but she amplified the reach of the photo at issue. Before the suit, the photo had been viewed online only six times. But in the month following the filing of the suit, the website was visited 420,000 times.
I say all of that to say this. If you or someone you’ve been accused of domestic abuse, you might beat the rap—certainly if you hire my law firm we will do everything we can to make that so. But you can’t beat the ride.
So if you or someone you love stands charged with a criminal offense involving domestic violence in Texas, please feel free to give us a call. We’re here 24/7 to help.
And in parting, violence is never acceptable conduct. If you or someone you know is suffering at the hands of an abusive partner, please protect yourself and seek help. And in the immortal words of Bill S. Preston, and “Ted” Theodore Logan, “be excellent to each other.”