Domestic Violence Petitions in WV – Part II

Apparently there are others out there who feel the same way that I do about the rampant abuse of domestic violence petitions in West Virginia.  See my prior post here.  Among others, and a flurry of comments, I received this email from a reader:

Mr. Bryan:

 I read your blog entry regarding the domestic violence (DV) petitions. Many law professionals have raised similar concerns inclusive of numerous judges who vocalized their discontent with pressure exerted on them predominantly by women’s groups. I’m not sure if you have seen this but a study was done attempting to quantify the financial impact to West Virginia regarding DV and false accusations of DV. As you may suspect this is a very difficult task and highly subjective. I have quickly read the report and will dive deeper into it over the coming holiday. Interestingly the impact from false allegations could range from $5.7M to $18.2 M. This is simply an estimate of the direct cost to West Virginia. I would suspect that indirect costs far exceed this number – potentially reaching to $100M. Indirects would include costs like welfare, money going to legal fees that would otherwise be spent in the non-service economy and therefore subject to sales tax, lost production and taxes from people losing jobs, and the cost of social services that are often a result of false allegations (i.e. kids being placed and paid for by public funds etc.). I also believe the direct costs outlined in the report are conservatively estimated (i.e. on the low end). Other costs include substantial tax subsidies to “advocacy” agencies to the tune of literally millions (you should take a look at the VAWA appropriations – it is staggering – not just financially but from a gender discrimination standpoint). If there number of claims were reduced by 60-80% theoretically their operating cost would reduce proportionally.

 This issue is far larger and significantly more important than most people realize. Women’s groups understood that oppressing women had serious negative effects on girls. We are now seeing the impact to boys resulting from the systematic discrimination against men. Last year’s college graduation rate was 58% women to 42% men. The steady gap increase is about 1% annually and will be at 60-40 within 2 years. That equates to 50% more women graduating from college than men. Some speculate that this is a result of different learning patterns between boys and girls. I don’t buy it. While our biological differences likely do present logistical challenges it doesn’t explain why it is a problem now and it certainly couldn’t explain the rapidity by which this transformation occurred. The long term effects of this are horrific.

 On the DV issue – there are numerous studies that date as far back as the 70’s that prove DV is nearly mutual, meaning it is 50-50. Please don’t misunderstand, I am not advocating that DV is not a problem I am simply stating a statistically relevant fact that men are not the sole perpetrators of DV or even the majority perpetrators. Even more alarming is that women initiate the physical violence at a rate that far exceeds men, almost 70% of the time. Women are also more likely to perpetrate violence against their children than men are. Note – men perpetrate violence against children more than women but when assessing violence parents initiate against their own children women are far more likely to be the perpetrators. Just one more fact – women are also much more likely to commit infanticide. These statistics are relevant and were compiled by agencies like the US Department of Justice and the CDC.

 My personal thoughts regarding DV have evolved substantially over the past couple of years. I was the victim of false allegations and subsequent discrimination by our “justice” system. Fortunately I don’t have kids. I’m now committed to working diligently in raising public awareness and trying to affect positive change in the current discriminatory DV legislation. We need to restore credibility to the DV orders and the judicial system. The idea that a DVPO can be issued with absolutely no proof is outrageous. The idea that a DVPO can be issued based on metrics that are virtually unproveable (i.e. psychological abuse) is absurd. The process violates the very foundations of our legal system. There is no due process afforded to men  accused of DV. There is no recognition that women are equally perpetrating DV. It really is insane.

 If you’re interested I can forward additional information. I would greatly appreciate your engagement in this issue. It is important for everyone – men, women and children. I truly believe this issue far exceeds racial or religious tensions in this country. I’ve attached the cost analysis referenced above.

 I look forward to discussing this further if you’re interested. In the meantime please visit this website as it has wealth of information regarding this issue:

 http://www.mediaradar.org/

He also directed me to an October 31, 2008 article from the Bluefield Daily Telegraph, titled, “MAWAD fighting stereotypes that only women are abused,” which also contained some surprising information – not only that some people and groups are fighting back, but some surprising statistics.  According to the article:

Men and Women Against Discrimination (MAWAD) formed in West Virginia to expose the untruths behind the theory that men are always the aggressors, pursue a family court system that recognizes and honors each parent’s role in a child’s upbringing and to seek “truth, justice and equality in family law.”

Along the way, organizers say they discovered there are many men out there who are just as abused as any of their female counterparts, that the court system all too often ignores their wounds and that the very systems put in place to stop domestic violence can be manipulated and twisted into another form of abuse during divorce and custody negotiations.

That’s why MAWAD members have long argued that all custody proceedings should begin with a 50-50 shared parenting plan, which may then be crafted around the family’s individual needs and situations; that the domestic violence protective order process needs to be overhauled; and that people of any gender who file false domestic violence allegations should be penalized.

The article further described MAWAD’s goals:

MAWAD’s Region IV Director Ron Foster emphasized this week that the organization never condones physical violence or emotional abuse, but only wants every person, every parent, to face equal rights and responsibilities inside a fair family court.

“Our goal is to get the garbage out of the court so you can deal with true domestic violence cases,” Foster said Wednesday.

This is exactly right.  Men are blatantly discriminated against in the custody process in West Virginia and elsewhere.  There should be a presumptively 50-50 allocation from the outset.  However, many times what happens is that the divorce or custody process begins with a 100-0 allocation due to the domestic violence protective order that is granted in many, many cases.  This is aggravated by the fact that many lawyers feel they have a duty to suggest to their client that they take out a domestic violence petition, because it puts them into such an advantageous position.  And if their client doesn’t take one out first, they other may, thereby putting them into an extremely disadvantageous position.  

However, there is hope.  And hope lies in appealing to circuit court.  In one particularly egregious case that I had, the Family Court made a finding that a female significant other was “credible” in her profession that she was “in fear” of the male significant other due to a verbal argument and thereby entered a protective order, kicking the man out of his house, out of his job, away from his kids, and into the child support poorhouse.  However, the Circuit Court overturned the order on appeal, finding that her fear must have been “reasonable,” and that no reasonable person should have been placed in fear due to the particular allegations.  Its good to know that a circuit court judge is willing to abide by the law in the face of the family courts’ capitulation to women’s groups and institutionalized discrimination against men.  My advice to others in these situations is to get a good lawyer, create a record in the family court showing the absurdity of the claim of “domestic violence,” and then appeal after the family court enters the order – which it always does.

I agree with MAWAD that it is an anti-domestic violence stance to call for reform of the domestic violence protective order procedures in West Virginia, because right now the procedures are being abused, thereby watering down the system, and allowing real domestic violence to take place.

Note: the reader also emailed me this report, titled “Analysis of Domestic Violence Costs in West Virginia and the Potential Cost of False or Unnecessary Claims,” by Benjamin Foster, Ph.D and Professor of Accountancy at the University of Louisville, which seem to be provide comprehensive coverage of the subject.

 - John H. Bryan, West Virginia Attorney

 

Right to a fair [media account of your] trial?

Tulsa criminal defense attorney Glen R. Graham posted a lengthy run-down on “protecting the rights to a fair trial against unfair media stories in Oklahoma.” He cites the Code of Professional Journalism at the Society of Professional Journalists, and notes that the aforesaid “Code” advises journalists to: (1) seek truth and report it, (2) minimize harm, (3) act independently and (4) be accountable.

But the media can certainly do harm to criminal defendants by tainting the jury pool – not that they care.

Glen comments that a good criminal attorney must seek a protective order from the court in high-profile cases to prevent the prosecutor and staff, as well as law enforcement, from releasing harmful facts which either taint the jury pool, or taint the jury itself during a prolonged trial.

While trying a multi-week and high-profile jury trial, I found myself reading the papers and watching the local TV news everyday, always getting angry at their unfair portrayal of the days’ events of the trial. It was as if they were pandering to a tough-on-crime audience. My biggest problem with it was that I had a sinking feeling that the jurors were doing the same everyday. Obviously they were instructed not to read or watch any media accounts of the trial, but there was nothing stopping them from doing so. And I couldn’t in my own mind, believe that I wouldn’t do the same had I been a juror. There is some attraction to forbidden fruit, and none of us would actually believe that we could be tainted by any such media account of what happened – especially when we experienced it ourselves.

But, even when I read or heard the media accounts, the case sounded un-winnable. The defendant sounded obviously guilty – and a guilty verdict was all but assured. My wife was in the gallery watching the testimony everyday, and when she read the newspaper, she would also get angry, stating – “that’s not true,” or “yeah, but they took the quote out of context,” or “they left out the most important part.” The fact is, that such media accounts do not accurately portray what happened at trial. And even if you were there, by reading or hearing such accounts, it tends to sway the facts in your mind towards the prosecutions case.

In that case, when the verdict came back not guilty of 1st degree murder – but guilty of lesser included 2nd degree murder, the headlines only said “guilty of murder” with no mention of the acquittal of first degree murder – a partial exoneration from what the prosecution alleged happened, and which means the difference between life in prison and possible parole in ten years (in West Virginia).

But in reality, there is not much you can do about it but complain and hope for the best. A “gag” order may help some with pretrial disclosures tainting the jury pool (with respect to prosecutors and law enforcement leaking), and indeed the Caylee Anthony case in Florida emphasizes that possibility, but in most run-of-the-mill cases, most information is eventually “public knowledge” and thus accessible to reporters. And they don’t need prosecutors or law enforcement to assist them in shining the worst possible light onto the defendant.

– John H. Bryan, West Virginia Attorney

West Virginia Criminal Justice System Deserves Credit

I have complained before about law enforcement in Florida. There are ten cops for every one person it seems, and they spend most of their time extorting money from motorists. Well I have similar complaints about the criminal justice system in Florida, and any experience with it will cause you to want to bend over and kiss the ground in West Virginia (assuming you are in West Virginia).

Orange County, which is mostly Orlando, seems to be the worst. Imagine that you are charged with a crime in Orange County, Florida. You can’t afford to hire Jose Baez, and you have no publicity to offer him, so you are appointed a public defender. A family member bails you out of jail. You wait and wait, but you never hear from your attorney. So you try and call him or her. You call the Orange County PD’s Office. You get a recording. It thanks you for calling and automatically puts you on hold. Every few minutes a digitized voice tells you how much longer your wait time is. After about 20 minutes of waiting, you get a “customer service representative” who is extremely unhelpful and rather rude. You may find out who your appointed PD is, but you never actually get to speak with him or her.

So you then decide to call the judge’s office to find out some information. But alas, you can’t find the judge’s contact info anywhere – only his bio. So you call the Clerk’s office to try and find the number to the judge’s office. But again, you are put on automatic hold. When you finally get an operator, she listens to you, says “uhhh, hold on,” and redirects you back to the beginning of the phone system as if just to put you off on another operator.

When you finally get a live voice that is willing to give you the number to the judge’s office, you call the judge’s office, and guess what? Yep, another recording. There actually is no live receptionist, just a long recording warning you that “this is a very busy office.”

While all of this is going on, your case meanwhile is charging ahead through Orange County’s automated criminal justice judiciary. You can actually plug in your info and watch your case proceed in real time – you just can’t ask anyone about it, or stop it. What if the system makes a mistake? Who can you tell? You have no access to an attorney. You can’t call the judge. You can’t speak to anyone with any sense at the Clerk’s office. Even the prosecutor won’t speak with you if your not the PD defending the person.

Contrast this with West Virginia. Indigent criminal defendants actually receive great service in rural West Virginia counties. In most counties a private attorney is appointed for the person. These private attorneys have telephone numbers, fax numbers, and usually email addresses. You can call the person, ask questions, set up a live meeting. Or, you could call the judge’s office and speak with the judge’s secretary about the status of your case or even to ask which attorney was appointed to represent you. You could call the circuit clerk’s office and speak with a very helpful person who can answer most questions about your case. Even in the few metropolitan areas of West Virginia the service is much, much better. You can get actual contact information for the public defenders, as well as the prosecutors. And attorneys, whether appointed or public defenders, actually represent you and have ethical obligations to diligently defend your case.

Maybe they would argue that they can’t help it because there are just so many people in the system. And I’m sure the same differences exist with respect to our civil justice system as compared to Florida. But whatever the reason, it makes me glad to both live and practice law in West Virginia.

– John H. Bryan, West Virginia Attorney

Less can be more at trial

The Wall Street Journal had an article this morning entitled “Lawyers will be lawyers, dumping more on juries than they can process.” The premise of the article basically was that giving a jury too much evidence works against you.

It’s an occupational hazard: Lawyers, being lawyers, are loath to leave out a single stone of the fortress of evidence they are building, lest it prove to have been the keystone. Prosecutors are tempted to anticipate and counter every argument the defense might make. They sometimes forget that they are also storytellers, who by trade rely on judicious selection — and omission.

The article relates this mostly to white collar cases, but I think it can apply in any type of case. If you bore the jury to death, your less likely to win. And as a defense tactic, sometimes the only thing you can do when you are facing overwhelming evidence is to muddy the waters. If the state calls too many witnesses, it could dilute their message. For instance, in a murder trial, by the time the state gets done calling its dugout of witnesses, the defense hopefully will have muddied the waters enough that the jurors missed any clear message from the prosecution and really don’t remember everything that was said.

– John H. Bryan, West Virginia Attorney

No big surprises in legal-related election results in Greenbrier County

Judge Joseph C. Pomponio, Jr. retained his bench on the 11th Circuit for Division 1.  He has a great quality for a judge – being extremely humble and down to earth.  He prevailed in a campaign against a very prominent and well-liked candidate.  Overall, both candidates ran a very respectful campaign.

Judge Jim Rowe also retained his bench on the 11th Circuit for Division 2.  Judge Rowe has been a very popular judge in Greenbrier and Pocahontas counties.  In my experience Judge Rowe has been a fair, impartial, and knowledgeable trial judge, which is the heart of the job.  His opponent, a friend and mentor to me, ran a passionate and high-profile campaign, coming closer than anyone thought possible, and deserves credit.  It takes a lot of guts to put yourself out there and run for office.  A lot of people are willing to complain, but very few are willing to put their money (and their name) where their mouth is.

Patrick Via, a Republican, won the race for Prosecuting Attorney against Democrat challenger Martha Fleshman.  Pat is experienced, honest, and ethical, and will be a great prosecuting attorney for Greenbrier County – though I’m not sure if that is a good thing for defense attorneys….  

 - John H. Bryan, West Virginia Attorney

Big surprise: felony case against Raleigh County deputy dismissed

As reported in the Register-Herald this morning, a felony charge against Raleigh County deputy Randy Burgess was dismissed during his Monday preliminary hearing. He was charged with writing a worthless check for “multiple thousands” of dollars.

No big surprise here. Several things to note: (1) A special prosecutor was appointed. That should tell you something. The prosecutors office will not even prosecute a local member of law enforcement. They may say this is a standard conflict, but it shouldn’t be. (2) The charge was dismissed at the preliminary hearing at the request of the special prosecutor after “discussions with the sheriff’s department led him to believe the state ‘didn’t have a case.”

Yeah right. First off, why would the sheriff’s department be investigating one of their own? Shouldn’t the state police be conducting this investigation? Why would you rely on this as a “special” prosecutor? And how could you possibly not have a case in a worthless check case? These are the most open and shut cases that could ever exist. The check was written, the guy signed it, and the bank has all the records. What else do you need?

They should at least be honest. They dismissed the charges because he is a cop. It’s that simple. In the case where Joe Blow is charged under the same circumstances, do you think a prosecutor would speak with the sheriff’s department, and come to a conclusion that there “is no case,” and just request dismissal of the charges? Hell no. Even if the prosecutor thought that, he would offer a plea to a misdemeanor.

Someone should tell “special” prosecutor Tim Boggess from Mercer County that he represents the citizens of West Virginia, not the cops, and the citizens have a right to know why he requested dismissal of the charges. Why for the first time in history was there “no case” in a worthless check case? Has this been explained to the victim? Or is there no such thing as a victim when the perpetrator is a cop?

Once again, I’m a lone voice shouting in the wind that there is a double standard at play here. And the problem is the prosecutors – with the “special” prosecutors being the worst of all, because they are not accountable to the elected public. Do you see a trend here? Cop breaks law; elected prosecutor withdraws and requests special prosecutor; special prosecutor either dismisses charge or gives sweetheart deal; elected prosecutor walks away clean.

– John H. Bryan, West Virginia Attorney.

West Virginia ABCA Investigated by Feds

Its being reported in the Charleston Gazette this morning, as well as the Register-Herald, that the feds are investigating West Virginia’s liquor control agency, the Alcohol Beverage Control Administration, and subpoenas are flying.

The Register-Herald article was not able to confirm any of the details, but the Gazette article, by Phil Kabler, was actually very specific.  From the article:

Here’s what I’ve been able to gather: Apparently, the investigation by the U.S. Attorney’s Office in Charleston goes right to the top, and is focused on five individuals: Commissioner Dallas Staples, former Charleston police chief; deputy commissioner Keith Wagner, a former state senator from McDowell County; region 2 enforcement director John Duncan; Danny Cantley; and Fred Wooton, who also works full-time as a Beckley firefighter. He’s also the brother of former state senator and current House of Delegates candidate Bill Wooton.

The article followed the above paragraph with this one:

Duncan was one of the ABCA officials reprimanded in 2007 for transporting liquor in an ABCA vehicle to former Lincoln County clerk Greg Stowers’ homecoming party following his release from federal prison.

Goodness gracious.  Add this to the “only in West Virginia” stack of stuff….  

Apparently, the allegations revolve around gifts from alcohol distributors to state ABC officials for favorable positioning and promotion of their brands.  What kinds of gifts?  Everything from bottles of liquor to thoroughbred horses, to dinners, golf outings, etc.

Power corrupts, and absolute power corrupts absolutely.  The WV ABCA was given complete control over the granting of liquor licenses, and liquor licenses are a prerequisite the the award of a video lottery license.  Was there any doubt that this would lead to a corrupt state agency?  

There was a comment posted on the Gazette article by “Joe6pk” that was particularly insightful:

Long ago, the State decided it wanted a monopoly on the sale of alcoholic beverages, and to exercise that monopoly through distributors. It was a set-up for corruption that has continued for 70 years or more. The only way to end this corruption is to get the State out of the alcoholic beverage business. Thirty-two other states have done so, with no ill effect. Alcoholic beverages should be treated as any other consumer product. A monopoly limits selection, increases prices and reduces tax revenue. It may have been a good idea in 1933, but times have changed and it has become a stupid idea that benefits only the distributors and corrupt officials. Blah!

Criminal defense attorneys have known for a while that ABC has been using their power over liquor licenses and lottery licenses to investigate licensees charged with crimes unrelated to the licenses.  Say a liquor licensee is charged with an unrelated crime.  They will suspend his license, and then demand that he give a full and complete written explanation of what happened.  Then they will hand the statement over to prosecutors.  Why were they doing this?  Who knows.  Maybe they just got power hungry.

 - John H. Bryan, West Virginia Attorney.