Some parents have had their children removed for yelling at them, allowing them to miss or be late to school or having a dirty home. ~Social worker Anthony Cavuoti
A Criminal Defense Attorney's View
of the Domestic Violence Industry - Page 8
by: Paul G. Stuckle, Esq.
Updated: March 12, 2006
VIII. Selecting the Right Attorney
Table of Contents
1. Do Not Attempt This On Your Own
If informed that surgery is needed to remove a tumor, the patient would not go home and start rummaging
through kitchen knives to commence a self-service operation. Obviously this procedure is best left to the
skilled hands of a professional physician. The same principle exists when a family desires to have a
criminal case dismissed. This is not the time to do it yourself.
The criminal justice system is a great mystery to those who are not familiar with its inner sanctum.
There is a right way and wrong way to get things accomplished. The family finding itself facing an
accusation does not understand how to approach the system. Common sense and justice, thought to be
inherent in the system, does not exist. Rather the criminal justice system is more concerned with
power, perpetuation of the appearance of justice, and statistics.
Media and political attention concerning domestic violence may tend to have the naive think the system
is concerned with the well being of families. This is incorrect. The system does not care one iota about
the families it captures in its web. A family in recovery, healing from domestic conflicts presumes the
protectors would be pleased to discover prosecution is no longer desired. This is certainly the public
persona exemplified by the protectors. Referring to the Smith County, Texas Family Advocacy Center,
Executive Director Carol Langston said: "I would love for the center not to have to be here 20 or
40 years from now." (Laura Krantz, Staff Writer, March 20, 2004, Tyler Morning Telegraph).
In fact the exact opposite is true. The protectors want as many cases as possible and are not concerned
with what's best for the family. The system is concerned with what's best for itself, growth and expansion.
Those goals are not met by dropping cases.
"This is crazy. We had an argument that got out of control. Everything is fine now. My spouse does
not want to prosecute. If I talk to them and explain it will go away." This is the initial feeling
of a family who does not want any additional complications, such as a frivolous prosecution in their lives.
The family may be experiencing problems and difficulties, but it is not a matter that requires governmental
intervention. Husband and Wife desire to work out their issues on their own, their way. All that is needed
now is to make an appointment to speak to the prosecutor and have the State to drop the case.
The State Will Not Drop the Case.
2. Rules For The Accused
- Rule No. 1: There is nothing you can say to these people to make them go away.
Nothing an accused or alleged victim can say or do will convince the protectors (Family Advocacy
Prosecutor, Family Advocacy Center Caseworker, Police Detective) that the abuse did not occur.
- Rule No. 2: The case will not be dismissed until the government finds a dismissal is in their best interests, not the best interests of the family.
The individual effected family means nothing to these people. The family is a mere meal ticket,
another in a long line of families the system will victimize. Informing the protectors that the family
is fine, has made up, is working out their problems, and does not need prosecution will be met on deaf
ears. The system does not care. The protectors need bodies to meet necessary quotas to continue receiving
grant money and expand.
It is only when the protectors recognize they will lose the case, possibly in an embarrassing fashion,
that a dismissal will be considered. The state must be motivated through its own fear of losing face with
a jury before it will consider the needs of the family.
- Rule No. 3: Talking to the protectors without an attorney present is the single worst thing a wrongfully accused person can do.
In most cases an experienced attorney will not allow you to talk to the prosecutor or the police or
give a statement. The attorney knows whatever you say will be used against you.
The violation of these rules by unaware family members is commonplace. A family desiring to put the
incident behind them believes sanity will intervene at some point, and decide to contact the police and
prosecution. The alleged victim and suspect will give written and videotaped statements. In addition,
they will talk on the phone or offices of detectives and prosecutors without knowing they are being recorded.
The protectors are not interested in conducting a fair and thorough investigation. The accused and alleged
victim who walk into a Family Advocacy Center without an experienced attorney to "tell their side of
things" or "clear this all up" is doing exactly what the authorities want. The protectors
know what they are doing. At this meeting they will obtain real or implied admissions and circumstances
presenting opportunity for battering coming from the accuseds own mouth.
An attorney can place you in a position so that you are "cooperating" with the investigation
without incriminating yourself. The attorney can assist you in making the decision of whether to meet with
the authorities. In most situations, the attorney knows the charge decision has already been made and that
a meeting will not change the forthcoming prosecution.
3. Finding the Right Criminal Defense Attorney
Very few attorneys specialize in fighting domestic violence allegations. Many lawyers represent clients with
assault charges. These lawyers will handle such cases in addition to a general criminal defense practice.
Domestic cases are different from the typical criminal charge and must be handled differently!
Consider the following in hiring the right attorney:
A. Length of Practice and Experience.
A family violence allegation can only be defended successfully by an attorney with significant trial experience
and specifically with assault cases. The accused is not in a position to have inexperienced counsel.
Unfortunately, the police, Family Advocacy Center personnel, and the public will consider you to be guilty. For
one charged with family violence, it is important to act immediately. The accused must prove their innocence! An
attorney who does not begin an all out defense at the very beginning is wasting valuable time and compromising
There is no "home field advantage" in a domestic violence case. Do not shy away from a good attorney
who is located in a different county from where you are being charged. Judges are elected politicians. Judges
do not get re-elected if the public views them as soft on family violence. It makes no difference how well a
local attorney knows the judge; it will not be of any assistance with this type of charge. An "outsider"
who does not care about making the judge or prosecutor happy, but just wants to defend you and win, is much better
than a local name.
B. Reject Plea Bargains.
A false allegation of domestic violence must be beaten through either a dismissal or an acquittal (not guilty
finding) at trial. There is no victory in a plea bargain with these cases. The innocent persons life will be
significantly affected by pleading guilty. At no time in dealing with a false allegation should there ever be
an admission of guilt. A plea bargain may seem an easy way out, but it will ruin the life of the falsely accused
Deferred Adjudication, successfully served will not result in a conviction for the defendant. However, the lack
of a formal conviction is meaningless. Whether the accused receives deferred, straight probation, or is released
from jail, he will still have a criminal record and a finding of family violence. These records are public and
the nature of the charges can be made known to anyone. Family violence findings may result in the loss of
employment and the inability to secure future meaningful employment.
Community Supervision for the defendant will require battering intervention program counseling. In this setting,
the offender is required to admit that not only the actual charge is true, but also any extraneous charges or
allegations made in police or advocacy center reports are true. It matters not that the charge is exaggerated,
untrue, or only partially true. It matters not that the extraneous other charges did not occur. Failure to
admit that everything alleged is true will result in a revocation of community supervision and incarceration.
The prosecution will tempt the inexperienced defense attorney with offers of deferred adjudication and
"counseling" instead of incarceration. Do not fall for this guise. It can be difficult to complete
probation as the rules keep changing. Making community supervision more difficult for family violence offenders
is a legislative reality. Politicians enact new laws, which offer the appearance of fighting domestic violence.
No lobby group exists for persons charged with domestic abuse and the legislature can make the community
supervision process intolerable without opposition.
A finding of family violence can mean that you will lose your children.
C. Prepare a vigorous pre - charge defense to avoid prosecution.
If an attorney says to wait and see if you are formally charged; walk away immediately; the best time to
get a dismissal is before a formal charge.
Many times the best method of winning a false allegation case is to defeat it before it officially starts.
Evidence can be collected pre-charge by the defense that does not have to meet the standards of admissible
evidence at trial. The defense can produce typically inadmissible evidence such as polygraph examination
results, character letters, and other forms of hearsay. The defense can also offer expert witness reports
and affidavits explaining the unreliability and tainted evidence procured by the prosecution. Here are some
common examples of evidence that can be assessed for a charge dismissal packet:
- Your Criminal History
- Honorable Discharge
- Education Records
- Polygraph Results
- Polygraph Report
- Psychological and Personality Testing of Client
- A Factual Summary of the Defense Version of the Case
- Sworn Statements That the Alleged Victim Has Made False Accusations in the past
- Legal Research and Case-law to Show Reason to Not Indict
- Good Character Letters
- Availability of Defendant and Others to Testify If Requested.
- Recantations from Alleged Victims When Available.
- Expert Witness Testimony and Affidavits Regarding Tainted Evidence Comprising the States' case
- Test Results Showing the Accused Does Not Have the Psychological Characteristics of a Batterer.
If your attorney insists that pursuing a pre-charge defense is a waste of time, fire him.
D. Prepare a vigorous defense for trial.
If the prosecutor accepts the charge, then the case must be prepared for trial. It is rare for the state to
dismiss a case once they have formally filed an assault charge. Your attorney must be prepared to try these
specialized types of cases.
Selection of the jury is critical for domestic violence cases. The potential jurors come into the case
with heavy emotional attachments regarding allegations of abuse to a spouse. Strong emotions held by jurors
about domestic violence must be overcome and their attention placed on being fair and acknowledging that
false allegations are made. The jury panel must understand the serious potential for injustice a false
allegation can cause.
In addition, the attorney must educate the jury panel on how false allegations could be made. The panel
needs to understand how an alleged victim can make false and exaggerated statements and what motivation
exists to do so.
The attorney must be well skilled in cross-examination to show deficiencies in the states investigation
through a preconceived assumption of guilt shared amongst the advocacy team. Cross-examination is a skill
obtainable only through years of trial practice itself.
The attorney must also be prepared to offer strong defensive witnesses. Contrary to many criminal cases,
the accused must testify in a domestic violence case if the defense wants an acquittal. Until the jury
hears it straight from the accused's mouth that the abuse did not occur, it will convict.