WPCNR WHITE PLAINS LAW JOURNAL Commentary by Charles O. Lederman, Esq., Attorney at Law:
Dear White Plains citizens,
I write this as a career criminal defense attorney to offer some insight and expectations as to the Domestic Violence process we are all watching unfold before us, (involving the Mayor of White Plains).
First off, I must explain that the Domestic Violence (DV) unit of the District Attorney’s office have enjoyed their reputation as pit bulls who do not easily (if ever) let go of the charges and defendants they are assigned. Many defense attorneys dread hearing a local criminal court assistant DA’s statement that a case is being referred to the DV unit, because we know that the case will drag on for a while, and there will not likely be a lenient plea offer.
It is not uncommon for the abused to later assert that they will not support the prosecution. This is understandable, as a minor tiff like a thrown cup of tea does not often justify the overbearing and intrusive demands of the prosecutors (ie expensive counselling programs, admission of criminal conduct, and various types of sentences).
One common way out of this process is when a criminal court schedules a preliminary non-jury trial/hearing. This often occurs when an abused/victim has stated that they do not wish to proceed.
A date is chosen for “trial.” When the abused/victim does not appear on that date, the defense has a right to petition the court for dismissal, and the court is usually right to grant such an application. After all, if the prosecution is not able to proceed without its witness/victim, the matter should rightly be dismissed.
Another common path for these DV cases is the plea bargain path. Initially charged with a misdemeanor (up to one year in jail), many defendants opt to enroll in counselling with hope that the charges will be downgraded to a violation (not a criminal offense) upon completion of the counselling program.
My defendants mostly volunteer for such counselling, while many judges will order an evaluation anyway. Temporary Orders of Protection are often modified during the legal process so as to accomodate parental care of mutual children, or possible reconciliation between spouses . . . however, many defendants have spent months away from home and children because an order requires such. Violating such orders of protection often leads to serious consequences (such as new and independent contempt charges).
In watching Mayor Bradley’s matter unfold, it is interesting to see that the DA’s DV unit introduced new charges of a violation on a date earlier than the spat that brought all of this publicity. By bringing such charges, they have opened a new (and uncommon) possibility that Mayor Bradley might end up taking responsibility for this earlier and less egregious conduct (only a violation, not a crime) in lieu of the later alleged criminal conduct.
If he is allowed to plead to these violations and have the misdemeanor charges dropped, Mayor Bradley will rightly be able to claim he has been vindicated. I note, however, that the Mayor has refused to enroll in any counselling.
To me, this implies that his attorney is confident enough with the circumstances to proceed to a “trial.” Remember that this does not necessarily mean that the public should expect a real trial to proceed on the date next assigned by the court.
There is invariably motion practice among many other procedural requisites to be completed before the jury is selected and the evidence is presented like in all of those lawyer shows you watch on TV.
What it might imply, however, is the common course I described above, and that the defense is confident that Mrs. Bradley will not appear for the hearing/trial to which she will be subpoenaed.
I have never seen any repurcussions against those victims/abused who do not abide by such subpoenas . . . their complaints and charges are simply dismissed.
Nor have I ever seen a complainant/abused subsequently charged with filing a false statement, as all of us know in the criminal justice system that it would inhibit all victims from reporting violent offenses.
What I do know is that such a procedure allows all of the professionals to claim that they did their job. The DA will be able to say “hey, we tried. We even brought additional charges, but our witness left us hanging.”
The defense will be able to say “my client is vindicated, as all charges have been dropped.”
The court will be able to say that its hands were tied, and that it could not proceed if the prosecutor did not have a case to present (no witness).
And finally, the victim/complainant will have some hope of getting back to a normal (or as close as possible) spousal relationship without the animus of a pending criminal action and related orders of protection.
I predict the trial – dismissal course, because our Mayor cannot afford to plead culpability even to a violation when it comes to domestic violence. He knows he would be forced from his position if he admits anything, and will only retain his political position and credibility if the case is dismissed.
I do not know Mrs. Bradley, but can only assume that she is facing the same pressure (if not greater) as many complainants I have seen, and will seek what appears to be the easy way out . . . just not show up and hope it all goes away.
Sometimes that actually works, and families work out their problems and avoid further violent conflict. Sometimes it works in that they go their own ways without the stigma of a criminal record and collateral consequences. On occasion, we have all heard of cases where an abuser escalates their abuse to terrifying result.
All we can do is hope for the safety and well being of our neighbor Mrs Bradley and her children, and learn not to expect any real “justice” from our criminal justice system.
It hasn’t really been developed with that end in mind.