Prosecutor's Don't Care, They Just Want Convictions

Maybe some don't care, but the vast majority of them do.  In a situation where a Defendant has been charged with Domestic Violence and an alleged victim doesn't want the Defendant to be prosecuted, sometimes the best strategy in a case is for the alleged victim to tell the prosecutor face to face.  The only thing that prosecutors normally see before a trial setting in a misdemeanor case is statements on paper.  When a prosecutor reads a statement made by police officer, it is going to be presented in a fashion that makes the officer's decision look good.  It is just human nature.  Prosecutors deal with a wide range of cases, some are very serious, others are not serious at all, but sometimes the line between these cases gets blurred.  When a prosecutor sits down with an alleged victim and the alleged victim tells them face to face about the incident, it can help the Defendant's case in some situations.  Defendant's need an attorney with experience in Domestic Violence cases to evaluate the total situation, and the best strategy may include the alleged victim telling the prosecutor about what happened.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Subpoenas and Battery Domestic Violence cases

Many witnesses, including alleged victims, have questions regarding subpoenas in a criminal case, especially domestic violence cases.  Often, the alleged victim in a battery domestic violence case does not want to testify against the defendant in a case for a multitude of different reasons. 
Compelling people to appear in court to tell their version of events is essential to the criminal justice system.  In order for a prosecutor to obtain a criminal conviction, he must prove a case beyond a reasonable doubt at trial.  In order to do this, the state must introduce evidence that leads a trier of fact (judge or jury) to believe the defendant committed the crime in question.  In most cases, this evidence mostly comes from the testimony of witnesses.  This is especially true in battery domestic violence cases. 
In order for a witness to have an obligation to appear in court to testify in a criminal case, they must be properly served with a subpoena.  The law regarding service of the subpoena in a criminal case is as follows:
NRS 174.345 states:
"Service of subpoena.  1. Except as otherwise provided in NRS 174.315 and subsection 2, a subpoena may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age. Except as otherwise provided in NRS 289.027, service of a subpoena must be made by delivering a copy thereof to the person named.
2. Except as otherwise provided in NRS 174.315, a subpoena to attend a misdemeanor trial may be served by mailing the subpoena to the person to be served by registered or certified mail, return receipt requested from that person, in a sealed postpaid envelope, addressed to the person's last known address, not less than 10 days before the trial which the subpoena commands the person to attend.
3. If a subpoena is served by mail, a certificate of the mailing must be filed with the court within 2 days after the subpoena is mailed."
Below are the repercussions if a witness fails to attend the court date in question.
NRS 174.385 states that, "Failure by any person without adequate excuse to obey a subpoena of a court or a prosecuting attorney served upon the person or, in the case of a subpoena issued by a prosecuting attorney, delivered to the person and accepted, shall be deemed a contempt of the court from which the subpoena issued or, in the case of a subpoena issued by a prosecuting attorney, of the court in which the investigation is pending or the indictment, information or complaint is to be tried." 
There are also other provisions of the law which enable a prosecutor to obtain a warrant for a witness's arrest if it can be shown that the subpoena was properly served and the witness failed to attend the hearing.
If you are a witness in a criminal case and you have questions about the process, please contact the law office of Pezzillo Robinson through georgeforjustice.com.

Battery Domestic Violence Cases and Armed Forces Enlistment

There are clearly serious ramifications for Battery Domestic Violence convictions in the civilian world which this blog has discussed on numerous occasions, but there are also serious ramifications for much less than a conviction if you want to enlist in the military.  In the case of the Air Force, a moral eligibility determination (MED) will be made "on each applicant whose moral suitability is in question."  It is clear that the Air Force wants to see everything.  If you have ever been charged with a crime, they want to know about it regardless of the disposition.  The Air Force does this, "To protect the Air Force’s interests, MEDs are made on available information about a person’s conduct rather than on the outcome of a legal proceeding."     The Air Force is also interested in all "adverse adjudications."  These are defined as, "A finding, decision, sentence, or judgment that was other than unconditionally dropped, dismissed, or acquitted. If the adjudicating authority places a condition or restraint that leads to dismissal or is dismissed after a certain period of time, drops the charges, acquits, or the records are later expunged, the adjudication is still adverse. Suspension of sentence, pardon, not processed, or dismissal after compliance with imposed conditions is also adverse adjudication. If a person is charged and convicted of violating any federal (including UCMJ offenses), state, or municipal law or ordinance, that conviction is considered an adverse adjudication."  Waivers are available for most criminal conduct if applicants are "highly qualified and motivated."  Mitigating circumstances are also considered as part of the decision to grant a waiver.
Anyone who wants to join the military and has a criminal history should consult a lawyer who has knowledge of these regulations.  The regulations are voluminous, dense, and detailed, and they are not always consistent.  Although disclosure may be warranted in a case, consulting an attorney may help an applicant to formulate and converse about mitigating factors in a more meaningful and concise way.  This may help an applicant in the waiver process.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

New Clark County Domestic Violence Court

In the Las Vegas Township, Battery Domestic Violence cases will now be heard by one judge.  An administrative order was signed on January 11, 2011 by Chief Las Vegas Township Justice Court Judge Karen Bennett-Haron which created specialty courts in the Las Vegas Township Justice Court for Domestic Violence and DUI cases.  Pursuant to this order, Judge Melisa Saragosa will hear a segregated caseload of Domestic Violence cases.  This change will affect the defense Battery Domestic Violence cases in the Las Vegas valley.  There are certain strategies in cases that will not work as well because Battery Domestic Violence cases are now centralized in one court.  It becomes more important than ever to retain a counselor who is familiar with the new procedures in this court, the judge herself, and the prosecutors.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Factors Used in Determining the Dominant Aggressor

Pursuant to Nevada law when police officers arrive at a situation where there is an allegation of Domestic Violence, "the peace officer shall attempt to determine which person was the primary physical aggressor." NRS § 171.137.  This evaluation becomes more difficult when there is mutual physicality between the participants.
Pursuant to the State of Nevada Domestic Violence Prosecution Best Practice Guidelines,
"In situations where more than one domestic violence incident may have occurred, the "primary" aggressor is the person determined to be the dominant aggressor, not necessarily the first person to use force or violence.  In making this determination, the following should be considered:
a.  The comparative extent of injuries or serious threats creating a fear of physical injury.
b.  The domestic violence history between the parties involved.
c.  The comparative sizes and vulnerability of the parties involved.
d. The demeanor of the parties involved, paying attention to excited utterances and emotional state.
e.  Any weapons used or threatened for use by either party.
f.  Any claims of self-defense, defense of others, defense of property, coersion, or trespass.  The presence of defensive wounds, which may incude scratches to the suspect's face arms and hands or to the victim's neck in cases involving strangulation.
g.  Any witness statements.
h.  Whether there was an excessive response to the other parties' actions and/or time delay between domestic violence incidents.
i.  Whether there was a time delay between domestic violence incidents.
j.  The environment in which the violence occurred."
These factors are not always used by officers, and when they are used, they are not always used properly.  These factors can produce good defenses in many cases, but you need to retain counsel who will spend time to fully develop your case.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

A Domestic Violence Conviction Makes You Deportable

If you lawfully enter the United States on a visa, or you are a lawful permanent resident, you will become automatically deportable if you are convicted of domestic violence or of violating a protective order.  The federal law states: 
"(E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children [and].
         (i) Domestic violence, stalking, and child abuse. Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term "crime of domestic violence" means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual's acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
         (ii) Violators of protection orders. Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term "protection order" means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding." 8 USCS § 1227. 
If you are in the United States on a visa or here as a permanent resident, a conviction for domestic violence becomes even more devastating for you and your family.  Not only will you have to complete extensive counseling, pay fines, do community service, and lose your right to bear arms, you will also lose your ability to lawfully stay in the country.  Therefore, if you are here on a visa or you are an LPR/green card holder, it becomes even more important to obtain strong, competent counsel for the defense of your case.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Conviction for Misdemeanor Battery Domestic Violence = NO GUNS

Pursuant to federal law, if you are convicted of a misdemeanor crime of domestic violence, it is unlawful to possess a firearm.  For some people, this is the worst of many consequences (i.e. enhancability, long term counseling, jail time, cost) of a conviction for domestic violence, especially if you are or would like to become a member of law enforcement or the armed forces.  The law states:

(g) It shall be unlawful for any person--
   (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
   (2) who is a fugitive from justice;
   (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
   (4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
   (5) who, being an alien--
      (A) is illegally or unlawfully in the United States; or
      (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
   (6) who has been discharged from the Armed Forces under dishonorable conditions;
   (7) who, having been a citizen of the United States, has renounced his citizenship;
   (8) who is subject to a court order that--
      (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
      (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
      (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
         (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
   (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.
18 USCS § 922

If you are charged with misdemeanor crime involving domestic violence and you want to preserve your ability to legally possess firearms, you must not be convicted of a crime of domestic violence, misdemeanor or felony.  Whether aviodance of the conviction comes from a negotiation to a lesser offense or a not guilty verdict at trial, your best chance to keep your right to legally possess firearms is to retain a counselor who will dedicate enough time and energy to present the best defenses in your case.

If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

Attorney's Fees May Be Awarded If False Affidavit Filed

There is a specific provision included in the local rules of the Clark County courts that allows for attorney's fees to be issued to an Adverse Party for defending itself against an improperly filed Protective Order.  "(n) The applicant may be ordered to pay all costs and fees incurred by the adverse party if by clear and convincing evidence it is proven that the applicant knowingly filed a false or intentionally misleading affidavit."
Nev. EDCR 5.22.  Along with having to show there was fraud, the standard of proof evincing the fraud is very high, "clear and convincing evidence."  This is contrary to the standard of proof for obtaining a Protective Order which is very low "to the satisfaction of the court."  In rare cases, it may be possible to be awarded attorney's fees.   One scenario could be if an Applicant included facts in an application that he was in Las Vegas when an Adverse Party provided phone records or plane tickets evidencing that they were in Oregon.  There are also other rules and case law that could be employed to request an award of attorney's fees to an Adverse Party.  It is very difficult to obtain an award of attorney's fees in any civil case, but, in certain cases, it may be possible for an Adverse Party to be awarded attorney's fees.  Please remember, attorney's fees can be awarded to the Applicant as well, and it is easier for the court to do so. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

How do you spell TPO? G-U-N

If the word "gun" appears in an Applicant's statement of facts, a protective order will be issued.  Even without the word gun, protective orders are easy to get.  The burden of proof needed for a judge or hearing master to issue a TPO is very low.  Pursuant to NRS§ 33.020, "If it appears to the satisfaction of the court from specific facts shown by a verified application that an act of domestic violence has occurred or there exists a threat of domestic violence..." the court may issue protective order.  For many reasons (political, abundance of caution, public policy, etc.), if there is an allegation of a gun involved in any event of domestic violence, a protective order will be issued against the Adverse Party.  From a prosecutorial perspective, taking action against a person who owns a gun is preventing a murder.
What does this mean?  From a defense perspective, it can give a pretext for lying.  Allegations become exponentially more powerful, so there could be a larger rationale to lie or exaggerate facts in an application when they pertain to guns.  It also means that your 2nd Amendment rights will be taken from you for extended period of time. 
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.

He Said ... She Said

He said, she said is a common way for laypeople to describe the majority of battery domestic violence cases.  Many defendants have the impression that they cannot be convicted in a case that is "he said, she said."  This is false.  Many criminal cases are based mostly or entirely on testimonial evidence, not readily apparent injuries or other corroborating evidence.  If the finder of fact (judge or jury) in a criminal case believes that the testimony is credible, then a defendant can be found guilty of a crime based on testimony alone.
Looking at jury instructions is a simple, straightforward way to review some legal concepts.  Instructions on testimonial evidence and the credibility of witnesses differ slightly from juridiction to jurisdiction, but they are all similar to this one.  "In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe.  You may believe all of what a witness said, or only part of it, or none of it.  In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence you believe."  Eighth Circuit CA Preliminary Jury Instruction 1.05.
This jury instruction takes into account corroborating evidence, but it is not necessarily a determining factor.  It is true that a case based on testimonial evidence is normally easier for a defense attorney to refute, but these cases can still be difficult to handle and a significant amount of work needs to be done to investigate and prepare in order to perform an adequate examination of a hostile witness.
If you have been charged with Battery, Battery Domestic Violence, or any other related crime; or if a TPO has been issued against you, please visit georgeforjustice.com.