DOMESTIC ABUSE AND THE NATIONAL FOOTBALL LEAGUE

Earlier this week I represented a lady whose husband obtained an order of protection against her. Her husband said my client had assaulted him and that under the Arkansas domestic abuse law, he wanted the judge to remove her and her children from their marital home. Also on the court’s docket that morning were 8 other cases an Order of Protection had been asked for. As the bailiff called all of the cases scheduled for hearing, it looked like the we were in for a long morning. I knew each would take at least 30 minutes to hear. Of those eight cases that were set for a hearing, all of them except for our case was dismissed because no one showed up for court, or they asked the court to dismiss their petition for an order of protection. As it turned out, I was back at the office in less than an hour. He lost. Still, as the bailiff went through each and every case, dismissing one after the other, I got to thinking about what I’ve learned the past 32 years.
Back in 1980, when I worked for the local prosecuting attorney, the crime that is now called “Domestic Violence” was treated differently by the police, the prosecutor and the courts. Most abuse victims, which were mostly women, received little sympathy from those sworn to protect them. It was only when she was seriously injured, or worse, did the police, prosecutor and the courts do much about it.
Back then, when a husband slapped, hit, scratched, bit, his wife, or vice-vers, and if the police were called, the police officer could not make an arrest unless the officer witnessed the incident. When an officer did witness the “illegal touching” often the abuse victim was given some half-heated advice to see the prosecutor and get a restraining order (not an arrest warrant) and file for divorce. That was pretty much the same advise the abuse victim got when she came to the prosecutor’s office, the advice most often given was to go see a divorce lawyer.
It wasn’t that the police and prosecutors didn’t care about the victim. It was that both had become cynical over the years with their experience with victims of domestic abuse. Reluctant to clog up the criminal justice system with “these types of cases,” because in the overwhelmingly majority of these cases, the victim would not come to court to prosecute and if she did, she wanted the charges dropped. The result was that before the arresting officer went home to get some sleep before his shift began, and before the prosecutor who used spare time to prepare for trial closed his case file, and before the judge moved to the next case on his crowded docket, you could hear said in unison, “Just what we expected.” The costs added up to about $1000 a case – and that was in 1980 dollars – and the abuse victim would go back home to their abuser. Based on what I saw earlier this week that part hasn’t changed.
But in 1994 the world changed…at least the world of domestic violence and how abuse victims and the offenders were treated. What happed in 1994 was when former college football and NFL great, TV sports personality and everybody’s hero, a guy named OJ Simpson, was charged with murdering his wife and another person.
Although OJ Simpson was not convicted of this double homicide, the legacy left behind by this terrible crime was the public’s awareness of, and something battered wife advocacy groups could use to further their cause, for victims of domestic violence do. OJ’s legacy was a better understanding why and how abuse victims behave and most importantly, how they are treated by the criminal justice system.
This was because the abuse by OJ Simpson inflicted on his wife before she was murdered is was typical of abuse victims across the nation were treated and how they behaved. Before her death, there were several incidents of domestic abuse in the Simpson home, but only when Simpson put his then former wife in the hospital was he fully prosecuted and then he was given 2 years probation and community service. At that time, his then employer, NBC Sports kept him in their employment and outside of Los Angeles County, nothing was said about OJ Simpson’s history as a wife-beater. Then, four and half years later, Nicole Simpson was stabbed so many times that she was almost decapitated.
After OJ Simpson was acquitted of this double homicide, and as a result of what the public perceived was a criminal justice system that did not offer any protection to Nicole Simpson, there was a flurry of legislation that addressed this matter. First there were laws passed in the state legislatures, and laws that were passed by the U.S. Congress. These laws were designed to prohibit any chance of dismissive treatment of the abuse victim received from the police/prosecutor/court, but also protected abuse victims from themselves.
No longer were the police given the option of whether or not to place an abuser under arrest; no longer did an abuse victim have to live with the abuser until the case was decided in court, and when the abuse victim wanted charges dropped, an appearance before the judge was required and that intimidation factor usually resulted in the case being tried. For the past 20 years, although nothing tells me that incidents of domestic violence have gone down, the penalty the abuser pays is much more significant.
In Arkansas, there are several specific criminal offenses specifically dealing with domestic abuse and there are laws requiring the courts to hear petitions for orders of protection. The laws passed that permit the police to arrest an alleged abuser for causing injury that would be a misdemeanor even when the injury did not occur in their presence. In 1994, the U.S. Congress passed the Violence Against Women Act, later amended in 2013, and has also added to the list of persons who are prohibited from being in possession of a firearm. There has not been, at least to my knowledge, a law passed making the victim of an alleged abuse prosecute the abuser.
But now there is a new trend that worries me. It worries me because I don’t know how far the law and society is willing to go to punish an alleged abuser. And like what happened 20 years ago, it again involves a player in the National Football League.
Ray Rice is one of several professional football players who have recently been accused of abusing their wife or girlfriend. In Ray Rice’s case, there isn’t much room for the word “accused” as it used to be said, “Roll the Tape.”
Although Ray Rice will never be the football hero and TV sports personality that OJ Simpson was, unlike what happened to OJ over 20 years, when he pled to putting his wife in the hospital, NBC did not fire him. They issued a press release.
However, in Ray Rice’s case, his private employer, the Baltimore Ravens have fired him. At least for now, Ray Rice isn’t going to given an opportunity for counseling, he is going to lose his ability to make a living.
I do not know how far the rest of the private sector will mimic what the NFL has done, i.e., terminate the employment of a not-yet convicted domestic abuser, but I worry, is that maybe there’s a better way to permanently end a man’s career.

WHEN A CLIENT ASKS, “DOES THAT JUDGE NOT LIKE YOU?

When I was in law school in the late 1970’s, I would sometimes see a car with a bumper sticker that asked; “Have you hugged your lawyer today?” There have been times the past 32 years I’ve though about that bumper sticker, mostly when someone comes to me because they want to change lawyers. I ask them why they want to make such a drastic move and they usually say, “I don’t think the judge likes my lawyer.”
When I hear that, I can usually help the person understand the lawyer is doing a good job. I have never asked, “Did you ever think about giving you lawyer a hug?” How would you feel if you were a lawyer, fighting for your client and had to appear before an out of control judge?
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From the outset, I want to make it clear. It is very, very rare a jurist does not drive to work intending to do the ethical, honest and wise thing; and equally rare when a judge drives home with a clear conscious thinking they did that very thing. But the truth is most every judge worries they have done the right thing in court. And like us, judge’s have bad marriage, kids they worry about, someone on their staff they want to fire, concern that an appellate court is going to reverse the judge’s decision. Judge’s have lots of stress too. The experienced lawyer knows that the cranky judge is a lot happier when lawyers are not antagonistic with each other, and their clients are reasonable. The experienced lawyer knows the best way to “get the judge on your side”, is to be prepared, present your client’s case professionally and for your client to be and act civil outside the court, be reasonable when negotiating, and not unruly while testifying. The experienced lawyer knows that the best way for a lawyer to reverse a judge’s negative opinion of the party or the lawyer is to accept an adverse ruling, not talk back, argue or make a face.
But what do you do when the judge is wrong. Sometimes, I really mean almost never, a judge is just plan nuts…wacky…bonkers.
An article in the most recent edition of On-Line American Bar Journal reminds me of the judge who needs to removed from hearing any case. The ABJ tells the story of a Florida judge – not the one that earlier this year punched a public defender in the face – but of another wacky, crazy, Florida judge. I have put my comments in bold type, but here is a partial reprint of the ABA Journal article:
“Even before she assumed the bench nearly four years ago, a Florida judge had begun to exhibit “a pattern of behavior which is inexplicable, appears to demonstrate instability and is disruptive to the 18th Judicial Circuit,” contends an ethics complaint filed Monday against Judge Linda Schoonover.”

“Perhaps best-known for sending a Facebook friend request to a party in a divorce case who contended the judge retaliated against her when she refused it, Schoonover demonstrated “paranoia” and made incorrect statements on multiple occasions, the Florida Judicial Qualifications Commission says in its notice of formal charges.”

(Note: The article refers to an earlier article about this judge which I have reprinted in italics. You can skip to the rest of the article or read what happened when the judge sent a Facebook friend request to a woman whose divorce case the judge was hearing).

A Florida judge who sent a Facebook friend request—which was rebuffed—to a litigant in a divorce she was presiding over has been removed from the case, the Wall Street Journal Law Blog reports.

Judge Linda D. Schoonover reached out to litigant Sandra Chace ex parte with the friend request… Chace did not accept the request after her lawyer advised her not to. Chace’s lawyer alleged that when she denied Schoonover’s friend request, the judge retaliated by giving her most of the marital debt in her divorce, and giving her husband, Robert Loisel Jr., a larger alimony award.

“It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor,” the opinion states. “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.”

You gotta wonder what the client thought about her lawyer when that happened. After all, he told her not to accept the friend request. Now, back to recent ABA Journal article:

“The filing contends that the judge, or someone acting on her behalf contacted the Florida Department of Law Enforcement. The complainant said that the judge’s office had been bugged, when it wasn’t; accused a former chief circuit judge of assigning Schoonover a larger than standard amount of work, which he didn’t; and complained that unauthorized persons were shown entering Schoonover’s chambers on a security camera she had installed.”

“As with the other issues reported, the FDLE investigated the claim about unauthorized entrance. After reviewing the video footage, the agency determined that the individuals in question were court maintenance personnel, the (ethics bar) says, characterizing the incident as an example of “bizarre” behavior on the judge’s part. ‘Your bizarre behavior was based in part on your belief that your judicial colleagues and courthouse personnel have or intended to mistreat you,’ wrote the (ethics bar).”

And, even that wasn’t enough to remove the judge from hearing cases, because the Florida supreme court allowed her to keep deciding cases.

“Schoonover remains on the bench…and currently presides over a juvenile dependency (docket)….”

So, if you find yourself wondering, “Does the judge not like my lawyer” consider that there’s nothing wrong with your lawyer and that your lawyer might just need a pat on the back, and you might want to get a bumper sticker that asks, “Have you hugged your lawyer today?”

Is there a defense to a federal felon in possession of a firearm charge

The law is very clear. A person violates federal law if he or she has been convicted of a felony in either state or federal court, and at any time or for any reason, possesses a pistol, rifle or a shotgun. But should this hard line rule apply in every case? What if it is necessary that a felon possess a firearm in order to defend himself, or another person, from being killed or seriously hurt? For example, what if a man who was convicted in a state court of felony hot check violations happens upon a elderly person that is being beaten and robbed at gun point. What if this same person, who I will call our Good Samaritan, knocks the gun from the robber’s hands and holds the robber at gun point until the police arrive? Should our Good Samaritan be convicted of violating title 18, U.S.C. Section 922(g)(1) the federal law that bans felons from holding, possessing, using or even smelling a firearm. He probably will be indicted, but can our Good Samaritan argue to the jury that he was defending the elderly woman and was justified in possessing the robber’s firearm? The answer is Maybe!

Although most federal circuits recognize self-defense or defense of others (called a Justification Defense) to a Section 922(g)(1) violation, those federal courts will require our Good Samaritan to pass a Four-Part Test and show the trial judge there is evidence to support his defense. The additional problem is that this test is so tough, even our Good Samaritan might not pass it. And if our Good Samaritan is indicted in a state that makes up the Eighth Circuit Court of Appeals (Arkansas, Missouri, Nebraska, Minnesota, North Dakota and South Dakota) he is in real trouble because federal courts in those states do not even recognize that there is a defense to a Section 922(g)(1) violation.

What do you do if you are charged with being a felon in possession of a firearm? Plead guilty and get ready to go to federal prison? No, you should call me.
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Prior to 1934, federal gun laws did not exist, only the states had gun laws. In 1934, the U.S. Congress passed the National Firearms Act and soon after that passed The Federal Firearms Act that prohibited felons from transporting a firearm across state lines. This law was quickly challenged on grounds it violated the Second Amendment to the U.S. Constitution. In United States v. Miller, a case that originated in the Western District of Arkansas, the U.S. Supreme Court held that the federal firearms acts did not violate the Second Amendment to the U.S. Constitution.

In 1968, Congress passed The Federal Gun Control Act, again making a illegal under federal law for a felon to simply possess a firearm. But Congress did not provide that people like our Good Samaritan were excluded from this federal law, now found at title 18, U.S.C., Section 922(g)(1).

Then, in 1980, in the case of United States v. Bailey, the U.S. Supreme Court held that our Good Samaritan might have a defense to this charge, if he could show that his defense was made in good faith and there was some evidence to support it. Soon after the Bailey decision, most circuits recognized that, although our Good Samaritan might be indicted for violating Section 922(g)(1) violation, our Good Samaritan must pass a Four-Part Test demonstrating there was some evidence to support that defense. But if you are not charged in Arkansas, the federal courts do not recognize a Justification Defense to a Section 922(g)(1) charge. Although some courts will listen to your Justification Defense argument, and might let you make this claim, it is seldom successful. But that might be changing.

I recently argued to a three-judge panel at the Eighth Circuit that it is not only time for a Justification Defense to be recognized by the Eighth Circuit, but that the Four-Part test is unconstitutional. I argued that when the U.S. Supreme Court ruled in District of Columbia v. Heller and McDonald v. City of Chicago, that the Second Amendment to the U.S. Constitution created a constitutional right of self-defense, and that any unreasonable restriction of that right (such as restricting the of right of non-felons to carry a firearm) is unconstitutional, that even a felon has the right to argue this defense to a jury without having to prove to the judge his defense has merit.

I told the Eighth Circuit that a felon can be barred from carrying a firearm, every court, federal or state, should recognize the right of self-defense and any restriction on even a felons right to argue self-defense should not be restricted.

We will wait and see what they decide, but in the meantime, if you are charged with any federal gun violation, no matter what state or federal court, call me. I will provide you with a free phone consultation and if you want, my legal services.

Jim Crow has Gotta Go – Voting Rights of Convicted Felons

In a speech he made on Tuesday, February 11, 2014, U.S. Attorney General Eric Holder called for the states to repeal their laws that prohibit a convicted felon’s right to vote. There are very important political reasons why laws that bar a convicted felon’s voting rights should be repealed, and I write about those political reasons below. But when I learned what Mr. Holder said earlier this week, I first thought, how many think that a convicted felon never has, never will and never should have the right to vote? I grew up thinking that convicted felon NEVER has the right to vote. For a while, I practiced law thinking that same thing. They didn’t teach us that in law school. So first, a brief civics lesson.
The right to vote in any election, state or federal, is governed by the laws of the state in which the voter resides. The only way to gain access to a voting booth, whether to vote for the President of the United States, a representative or a senator, a governor or mayor, is by registering to vote. The same goes if you want to vote for your governor or mayor. But some states have permanently banned a convicted felon from voting.
In Arkansas, we are a little more enlightened. In our state, after a person has been released from parole or probation, after all fines, court costs and any other costs paid, a convicted felon can re-register to vote. Section 11(c)(2)(A) of the 51st Amendment to the Arkansas Constitution says, “It is the duty of any convicted felon who desires to register to vote to provide the county clerk with proof from the appropriate state or local agency, or office that the convicted felon has been discharged from probation or parole, has paid all probation or parole fees, or has satisfied all terms of imprisonment, and paid all applicable court costs, fines, or restitution. Other parts of Section 11(c) speak to other requirements but you get the gist.
So, Arkansas is more enlightened but not Texas, North Carolina, Florida, Iowa, Kentucky and Virginia. These states prohibit our country’s 5.8 million felons from voting for President of the United States, a U.S. Senator or the governor of their state. And of the 5.8 million convicted felons in America, about 2.6 million are African-Americans. 2.6 million people of a separate and distinct class. “Those swept up in this system too often had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives. They could not vote” as General Holder said.
Felony convictions, in both state and federal courts, fall disproportionately upon African-Americans. Prison sentences fall disproportionately upon African-Americans. Please don’t tell me, “If they don’t wanna do the time, don’t do the crime” because I’m gonna tell you that some laws, and as we have seen, federal drug laws do punish differently. A federal prison sentence for cocaine powder (the drug favored by upper-middle class whites) is very lighter than a prison sentence for crack cocaine (the drug favored by poor blacks).
As General Holder said in his speech last Tuesday, “criminal justice and civil rights” go hand-in-hand. Those people that reside in those states that disallow convicted felons the right to vote for the elected officials that say what streets get repaired, how high a tax on food and clothing, and what is a crime deny one of the most important rights of all.
If you agree, you might want to read the book, “The New Jim Crow” by Michelle Alexander.

They are gonna retry Gary Dunn! Really!

It’s now official.  The State of Arkansas is going to try and convict Gary Dunn for the murder of Nona Dirksmeyer….AGAIN…FOR THE THIRD TIME. Trial is set for August, 2011.   Arkansas State Treasurer BEWARE, the bills that are coming now are gonna be followed but a bunch more.

Dunn’s second trial ended in a mistrial just two weeks ago.  The costs of the two trials have not been released, but think about this.  Both of Dunn’s trials lasted three weeks a piece.   There was a trial back in 2007 when the state tried to send a man to prison that the proseuctors now says is innocent.

Now I have nothing against lawyers getting paid, I am all for it.  Especially when the two lawyers are Jeff Rosenzweig and Bill James…as good as legal talent that you can get.  But the point is, not only does the state pay their legal fees, the state pays for their accommodations.  Six weeks of accommodations so far.  Then, you add three employees of the Public Defender Commission…and their costs…for six weeks…so far.  And they want to pay them again?

Then there are the lawyers proseucting the case:  Jack McQuary, H.G. Foster and Kent Holt are on the state payroll already, but six weeks of food and lodging have been paid for…so far.

Then the jury.  So far, a total of 24 jurors have listened to 42 days of testimony, arguments and instructions.  And so far they have voted 16 to 8 FOR DUNN acquittal!

There is no price too high to prosecute and incarcerate the person who murdered Nona Dirksmeyer.  And there is a special place in hell for the person who did this.   But so far, too many jurors have said Gary Dunn didn’t do this.  But for the people who insist on keeping him in jail and putting his liberty in jeopardy, there is another special place in hell.