I don't believe it.

[pecunium]

Well, in fact I do, I just wish I couldn't.

A judge in Maryland aquitted a man of domestic abuse charges because 1: the victim didn't show up in court and 2: (this is the amazing part, swallow the coffee, put objects which might break windows out of arms reach) he said he did it because, according to the Baltimore Sun "without the woman's testimony, he could not be sure that she hadn't consented to the attack."

The exact quotation of the judge, Paul Harris, is worse, ""You have very rare cases; sadomasochists sometimes like to get beat up."

To go out on a limb here, this wouldn't have happened if it wasn't a domestic violence complaint.

Why do I say this? Because the complaint wasn't lodged by the woman who didn't show up in court, but by a witness to the event; a cop.

According to charging documents, a police officer was on routine patrol when she saw Michael Antonio Webb approach a car at an Exxon station in Laurel. Webb reached in the driver's side door and swung his hand three times at the driver, police said...


"I witnessed him use his right hand, not in a fist, but in, I guess, an open hand, and push the female's face. ... As I saw him grabbing her hair ... and trying to pull her out, that's when I called it on the radio," the officer said, according to a recording of the hearing.

The woman told the officer that Webb had attempted to pull her out of the vehicle, causing her hairpiece to fall off, and that he hit her in the face, though she characterized it as "more of a tap than a punch." The woman had no visible injuries, police said.

The officer testified, "She appeared scared. She was talking very quiet to me. She wasn't making eye contact with him."

The judge's comments were first reported yesterday in The Capital of Annapolis.

For more than a year after the June 2006 arrest in the Laurel attack, prosecutors were unable to locate the woman to assist in the case. Two show-cause hearings were held, and the court ordered that she be arrested for failure to appear in response to a witness subpoena.

Attempts to reach the woman, who is 39, were unsuccessful yesterday.

The guy is in jail, for a different offense. He is 24, 6'3" and 215. If he had been accused of assault and battery of a man (say me, 40, 5'9" and 120 lbs.) who thinks my being unavailable would have trumped the testimony of an eyewitness cop?

Me neither.

He refuses to stop digging.

Harris said the sadomasochist comment was intended as a hypothetical. "I'm probably as against domestic violence as anybody, when the case is proven."

When the case is proven... which he seems to think can only be done if the victim testifies. If this were a case where the victim ha filed the complaint, and then failed to show, that's one thing. But a reasonable person can take the testimony of a disinterested observer. We do it all the time.

Maryland is losing points, but not as badly as Philadelphia where a judge declared consent is both irrevocable, and transferrable

A prostitute had made a deal with a john. So far, so good (I am ignore the question of the nature of prostitution, it's not relevant to this discussion IMO).

So, using Craigslist a deal was struck. When she got to the location it turned out to be a, not a house, but a vacant lot. The guy also had a friend. They negotiated an additional fee for him.

Not so good; two men, one prostitute; a abandoned house. Already the issue of real consent is getting fuzzy, and the friend shows up without cash. This is when the story gets ugly. Someone pulled a gun, and three more men showed up.

The last one saw she was crying, refused to take part and took her away.

When it came before the judge, she reduced the charge to theft of services Ignoring the sheer horror of having gang rape at gunpoint dismissed, because a negotiated deal with one man was turned into something else completely, lets look at § 3926. Theft of services.

(1) A person is guilty of theft if he intentionally obtains services for himself or for another which he knows are available only for compensation, by deception or threat...

(b) Diversion of services.--A person is guilty of theft if, having control over the disposition of services of others to which he is not entitled, he knowingly diverts such services to his own benefit or to the benefit of another not entitled thereto.

(c) Grading.--

1. An offense under this section constitutes a summary offense when the value of the services obtained or diverted is less than $50.
2. When the value of the services obtained or diverted is $50 or more, the grading of the offense shall be as established in section 3903 (relating to grading of theft offenses).
3. Amounts involved in theft of services committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.

We'll skip ahead to § 3903 (b) Other grades.--Theft not within subsection (a) or (a.1)* of this section, constitutes a misdemeanor of the first degree, except that if the property was not taken from the person or by threat, or in breach of fiduciary obligation, and:

1 the amount involved was $50 or more but less than $200 the offense constitutes a misdemeanor of the second degree; or

2 the amount involved was less than $50 the offense constitutes a misdemeanor of the third degree.

So it looks as though this is a misdemeanor of the first degree, never mind that a gun was used.

Want to know the grace note in this little song and dance?

Four days later, this guy was arrested for doing the same thing to another woman.

The judge, she, ...acknowledged that her ruling and remarks would be controversial.

"I know I'm going to get killed on this."

But she said she has to "sleep at night with what I decide."

And on the night of Oct. 4, when she ruled in the preliminary hearing of this case?

"I slept well."


* Those sections don't seem to apply in this case

Comments

[chris-goodwin.livejournal.com]

When the case is proven... which he seems to think can only be done if the victim testifies. If this were a case where the victim ha filed the complaint, and then failed to show, that's one thing.

If she had merely failed to show, that would be one thing.

But a reasonable person can take the testimony of a disinterested observer. We do it all the time.


The Maryland judge's comments were asinine, but while I'm not a lawyer, I'm not sure how else he could have found. The accused has a right to face his accuser, and to be presented with the evidence against him. This is pretty central to our justice system. If the victim is not the accuser she's at least evidence, or at least her testimony is. Without the victim, it's the cop's word against the defendant's, and all the defense attorney has to do is hammer on the cop's credibility.

I imagine that, had the victim been more helpful to the police over the intervening year, her lack of availability the day of the trial might have meant a delay until she could be brought in to testify. As you point out though, there were two show cause hearings and an arrest for failure to appear, and she still didn't show up in court to testify.

The guy is in jail, for a different offense. He is 24, 6'3" and 215. If he had been accused of assault and battery of a man (say me, 40, 5'9" and 120 lbs.) who thinks my being unavailable would have trumped the testimony of an eyewitness cop?

If, hypothetically, you had essentially refused to assist the police with their case for over a year, and refused to appear in court to prosecute the case, I'm pretty sure the case would have ended similarly.

The state had to prove their case. They didn't have the primary witness in their case. They had to go with the cop's word against the defendant's.

Or are you really saying the guy should have been found guilty of a felony based solely on the cop's say so? That way lies the slippery slope. I'm not sure I want the ability to get a conviction on anything more serious than a traffic violation based solely on an officer's say so.

The Philadelphia case is utterly wrong. It's my understanding that consent can be withdrawn at any point up to and including during, i.e. after penetration (if my wife and I are in the middle of intercourse, and she tells me she wants me to stop, if I don't stop I'm guilty). Perhaps local case law in Philadelphia says differently, I don't know. Perhaps the judge has a problem with prostitutes, and feels they need to be "punished". Perhaps the DA was asleep on the job.

[neadods.livejournal.com]

The accused has a right to face his accuser, and to be presented with the evidence against him. This is pretty central to our justice system. If the victim is not the accuser she's at least evidence, or at least her testimony is. Without the victim, it's the cop's word against the defendant's

As was pointed out in the Sun article (and the Annapolis website), lawyers do that *all the time!* Missing persons. Murder victims. The judge whipped right by the possible crimes of intimidation, kidnapping, or tampering with a witness to assume that she was a consenting kinkster with a thing for public scenes in front of unwilling witnesses.

As a woman living in Maryland, I oddly don't feel much safer that the judge was so meticulous to keep to the rule of law. I'm taking home the lesson that when someone pounds me in public, a cop may stop him right then, but the judge won't lift a white, male, Republican finger to keep me safe if the same man is left free to make damnsure that I'm too intimidated or injured to testify against him.

This is, after all, the same state where another judge told a woman seeking an emergency divorce that the world was full of things he wanted too, but that didn't mean that anyone would get them, delaying divorce AND dropping the restraining order... at which point her ever-lovin' hubby showed up at her workplace and set her on fire. The judge was again within the rule of the law - but funny how the law was interpreted to put the woman in maximum danger. And funny how the guy claimed that he's all for women's rights and all, but who knew that just because she was complaining about her husband he really would be that psychotic?

pecunium, I ranted about this one in my LJ too. I particularly like the "probably against domestic violence" line. That "probably" speaks volumes - mostly to the meaning of "couldn't give a rat's ass but I have to say something that makes me sound like less of a dick."

The Philly case doesn't stand alone - there was another one a couple years ago in Maryland where the judge ruled that once consent was given it couldn't be withdrawn, which is why another woman couldn't "cry rape" after she was, well, raped, having consented to some activities and then being forced into other activities. Let me poke around; I might have that link somewhere.

[pecunium.livejournal.com]

Yeah, I thought I recalled that case in MD too (in fact my original draft referred to it, but I couldn't find it either. Three might have been too long though; I'm not sure how I'd have structured the final piece).

I, too, thought the "probably against dometic violence as anybody else when the case is proven." comment was the really telling part.

Because it means, looking at his conditions for proof, he puts this sort of case in a different category from other assaults.

TK

[neadods.livejournal.com]

he puts this sort of case in a different category from other assaults.

Into the "she probably deserved it" category, as far as I can tell. He'd've been better off keeping his mouth shut than saying something so incredibly stupid and callous.

[redbird]

The fact is, juries do often convict entirely on police testimony. I don't think the police are angels, but neither do I think that a police officer is a less reliable witness than another bystander, or than an assault victim who may have been in shock.

Did the police, or the judge, look into why the woman hadn't appeared? Or did they assume that a man who was accused of beating someone up in public wouldn't have tried to interfere with her testimony?

Also, if by some unlikely chance it had been consensual SM by idiots (because forcing the public to watch you play is wrong as well as stupid), why wasn't the woman in court to say so?

[pecunium.livejournal.com]

If, hypothetically, you had essentially refused to assist the police with their case for over a year, and refused to appear in court to prosecute the case, I'm pretty sure the case would have ended similarly.

The state had to prove their case. They didn't have the primary witness in their case. They had to go with the cop's word against the defendant's.

Or are you really saying the guy should have been found guilty of a felony based solely on the cop's say so? That way lies the slippery slope. I'm not sure I want the ability to get a conviction on anything more serious than a traffic violation based solely on an officer's say so.

Well, since the victim wasn't the accuser, the cop was, that's covered.

More to the point there are lots of cases which are prosecuted without the active participation of the victim.


Experts in the legal community questioned the judge's contention that the victim's testimony was key to the case, specifically because a police officer offered eyewitness testimony.

Byron L. Warnken, a professor at the University of Baltimore School of Law, said in many cases, key elements of a crime are often proved through "reasonable inferences."

"Unless he found that the officer was not credible, it appears that there would be enough by which a typical fact-finder, a reasonable fact-finder, would have found the element of second- degree assault to exist in that case beyond a reasonable doubt," Warnken said. "The notion that you can't possibly try this case without the victim there is incorrect. What would we do in a murder case?"

Lynn McLain, a professor at the University of Baltimore, said: "Very often, domestic violence victims do not appear and do not testify, and often that is because they are intimidated by the abuser."



In point of fact thousands of cases where the accuser doesn't testify go forward to acquittal in that countly alone.

Anne Arundel State's Attorney Frank R. Weathersbee, the county's top prosecutor, said his office routinely prosecutes defendants in domestic violence cases when an accuser won't testify. Roughly one-fourth of the 14,000 to 16,000 cases that his office prosecutes each year are classified as domestic violence, Weathersbee said.

A reasonable trier of fact will weigh the evidence, assess the credibility of those who presented it and compare it to experience, and the law.

I don't think this judge acted as a such a reasonable trier of fact.

TK

Watch where your slippery slope is. You're standing on it.

[waterlilly.livejournal.com]

Would you expect a murder victim to show up so the perpetrator could face his accuser? Or should we just stop prosecuting murder? I mean, most murder victims are totally unhelpful to the cops. They refuse to return phone calls, they never testify, and they don't show up in court. They just lie in their (sometimes hidden and forgotten) graves and refuse to cooperate with the police at all. Why should we help these lazy bastards?

"Victim" is not synonymous with "accuser." Trying to make it so would lead to absurd results, and certainly slides us down the slippery slope.

Re: Watch where your slippery slope is. You're standing on it.

[pecunium.livejournal.com]

I have to say I understand the argument chris_godwin is making. It doesn't, actually, apply to murder.

There isn't a judge in the world who will allow a murder case to go forward on no more evidence than one person saying another did killed someone; just because someone has disappeared.

Some other pieces of circumstantial evidence (at the very least) would have to be entered.

But, and this is where I disagree, I think the default assumption is that battery isn't consensual; esp. in a public place, and under the circumstances described by the officer.

If the accused can offer evidence to show that this wasn't an assault/battery, power to 'em. But it never got there. The case was dismissed, the accused acquitted. The judge, in fact, said not, "We don't know, let's hold this over for more evidence," nor even, "We don't have enough evidence, and the statute of limitations has X left to run," but rather, "You, officer, have not provided reasonable evidence, and so I am declaring this man not guilty, because sometimes the women ask for it."

Yes, I am waxing hyperbolic; and using a loaded term, but you know what, he actually said that; in terms which were more offensive.

The problem with the other examples is that Muder isn't equivalent to battery.

The slippery slope is that limiting the lesser crimes, would invalidate a lot of them (how does one show bias? Who is the victim? How will they be contacted to testify?).

TK

Re: Watch where your slippery slope is. You're standing on it.

[waterlilly.livejournal.com]

I think, based on how chris_godwin phrased his argument, that murder is part of that slippery slope. If a cop seeing the crime happen isn't enough to convict someone of a felony, even a "lesser" one, then by that logic if the cop had seen this guy beat her to death, the cop's testimony isn't enough. I mean, what if that beating was some kind of "S&M" thing? What if she was getting a sexual kick out of being murdered? You can't "consent" to murder under the law, obviously, but I think you see what I'm saying. I do think that there are parallels to be drawn here between the lesser felonies and the ultimate one.

Re: Watch where your slippery slope is. You're standing on it.

[pecunium.livejournal.com]

We disagree.

If there was a parallel in the charges being brought (i.e. a single person, absent more than just his word, getting charges filed) then yes, there is a direct parallel, and a slope of effect.

But it ain't so.

I can go to the police station, and swear out a complaint against anyone for assault and battery.

I can, in fact, effect an arrest (for a misdemeanor, committed in my presence) if I see it.

That's all it takes. From there the system takes over and the charge will probably be filed. Odds are there will be investigation, and some supporting evidence will be required, but it's not legally mandated.

Murder... well without a body, the charge is hard to make stick. So I can't just wander in to the station and say, "I haven't seen my neighbor in the past month, the guy across the street killed her," and have the DA file a charge.

The scope of effect is different.

There is, actually, some interesting case law being worked on the issue of facing accusers (and I'm not sure it would apply here; esp. in this case where the actual accuser was present).

Crime labs abd the confrontation clause at SCOTUS Blog.

We do differentiate crimes, and we do have different standards of proof. We, for good or ill, don't have as high a standard for lesser crimes as higher. If we did, we'd have a lot fewer lesser crimes get punished.

If we reverse it, well we already have the largest prison population the world; both in absolute numbers, and per capita.

[cjmr.livejournal.com]

I don't think the MD case would have gotten any press at all if it hadn't been for the asinine judge saying:

"You have very rare cases; sadomasochists sometimes like to get beat up."

Because SMs clearly like to get beaten up in public places in front of cops?

The judge later claimed that that was purely a hypothetical and he did not believe that to be the situation in this particular case. If that was true (that he really believed that), why was he running off at the mouth about it!?

I checked the county website--Judge Harris is next up for election in 2019--judges in AA county are elected to 15 year terms.

(I've gotten gas at that station before. It's very public--the guy is clearly an idiot.)

[cjmr.livejournal.com]

I think this may have come out sounding callous, which was not what I intended. It's just such an exasperating case!

By contrast to the AA county judge, let me offer the speech a PG county judge (the next county west of Ann Arundel) gave before the questioning of prospective jurors began in the voir dire of a domestic violence trial I'd been called to the jury of:

"The victim in this case will not be testifying. It is her right. US law allows a wife to decline to testify against her husband, even when she is the victim of the crime. Later in the voir dire I will ask you jurors individually if feel that the victim's refusal to testify will prejudice your ability to make a fair judgment in this matter."

That judge, I think, got it.

[waterlilly.livejournal.com]

Unfortunately, this kind of thing is a constant problem with domestic violence cases. Trying to balance the rights of the accused under Crawford with the fact that lots of victims want to drop charges and refuse to testify because they're scared to death means that conduct that would land someone in prison if they did it to a stranger on the sidewalk gets them nothing if they do it to the person they live with. But the main problem is cases that only the victim and the perpetrator know for sure what happened, and all we might have is the victim's say-so that it happened at all. (Lots of abusers are good at not leaving marks, and victims might wait to report.)

It's rare that someone actually commits domestic violence in front of a cop. On those rare occasions when the cops see it, I think we ought to treat it not as "domestic violence" but as assault and battery. We need to call it what it is.

[pecunium.livejournal.com]

It's rare that someone actually commits domestic violence in front of a cop. On those rare occasions when the cops see it, I think we ought to treat it not as "domestic violence" but as assault and battery. We need to call it what it is.

Which is why this case is so appalling. The only thing which changes this from a charge of Assault and Battery is the pre-existing; romantic, relationship of the parties. If he had, in my example, attacked me, and I unwilling to testify, the cops word would have been good enough; because we assume strangers don't consent to being pushed around, slapped, and beaten.

So why in holy hell should we count it separately when the people are living together/fucking each other?

TK

[waterlilly.livejournal.com]

My crim law prof wrote a fantastic law review article several years ago titled something like "Against the Peace and Dignity of the State." Her main idea was that if something is, as the indictments here in Texas read, "against the peace and dignity of the state" if you do it to a stranger, why does the state have no peace and dignity in your home, or in your actions towards your family?

There is no good reason for treating these things differently. An assault is an assault, no matter who you commit it on or what your relationship is to them.

Too many people want to haul the "well the victim didn't want to testify" thing into the argument, which ignores the fact that the cops do a piss-poor job in too many cases of protecting victims of DV who actually testify, and who leave the person who did it to them. It's hard to get someone to testify against somebody who has beaten the crap out of them in the past and who has promised to kill them when he gets out. We give the victims no motivation to testify, and then we complain that they're uncooperative.

(Pardon some awkward constructions there. I'm trying really hard to keep this gender-neutral. Women commit domestic violence too, and I'm really trying not to make it look like I think all men are evil and all women are victims.)

[pecunium.livejournal.com]

I'm still working on my repsonse to your last post (because I don't see the same slippery slope), but I don't think you need to keep the language gender neutral.

Do women commit DV? Yes. But the relative numbers are so disparate that to be gender neutral is probably giving aid and comfort to the men who make up the, vastly, greater number, by making it seem as if they are just as likely to be victims as not.

Moreover, it gives cover to those who want to minimise it by letting them think there is an equivalence, when there is no such thing.

TK

[waterlilly.livejournal.com]

I understand what you're saying, I was just trying to work on what can become a "bash the men" tone in this kind of thing. That also can give cover to people who want to say it's not a problem, it's a mere "women's issue," considering it mostly happens to women.

Believe me, I'm aware of the numbers. I helped write a policy and procedure manual for a domestic violence shelter, and the law clinic I worked in last semester drew clients from a local domestic violence shelter. We had several classes on how to serve that kind of client, and what kind of questions to ask, and how appalling the statistics are. The thing that brought it home the most, about who the victims are and what it does to them, was having to bring a client to court when she was terrified of her husband, and we were all terrified he was going to shoot us in the parking lot if he lost.

It may actually be that I should have recused myself from this topic altogether. I may be too close to it, and in danger of typing before I think.

[pecunium.livejournal.com]

That's a judgement call. I have that problem with torture.

I don't think there's much risk here of becoming a man-bashing place, in part because this is about the judges (one of whom is female) in these cases, and the system which encourages them/they are perpetuating.

Then again, I don't see it as a "mere" women's issue. That's nonsense (more than half the population is women, the effects reach beyond them, etc., etc.).

TK