Innocence Is No Excuse In Domestic Violence

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Innocence is no excuse

Davis v. Washington

Hammon v. Indiana


 

Innocence is no excuse by Stephen Baskerville, Ph.D.

© 2006 Stephen Baskerville

Originally published on LewRockwell.com

Used with permission of the author

June 17, 2006 — The totalitarian mentality of the feminist domestic violence industry was on display recently at the New York Times, where two lawyers outline plans for suspending the Bill of Rights. The Times normally postures as a champion of civil liberties, but when the malefactors belong to politically unfashionable groups then innocence is no excuse. Only the guilty need constitutional protections, and we may as well just string them up.

When Words Bear Witness [New York Times, March 20, 2006] is a more appropriate headline than Michael Rips and Amy Lester may realize, since their own words reveal the brave new world the feminists and bar associations are creating around the trumped-up issue of "domestic violence."

"Domestic violence accounts for up to 34% of all reported violent crimes," they state. Given that government authorities define domestic "violence" as "name-calling and constant criticizing, insulting, and belittling," it would appear that many "reported violent crimes" are not very violent.

"Reported" crimes are also not proven crimes, and strong incentives exist to report violence where none has taken place. Fabricating abuse accusations ensures custody of children and marital property during divorce. The custody battles are lucrative for lawyers, whose bar associations control judicial appointments and promotions, which is why patently false accusations are treated as fact.

This perversion of the justice system is now common knowledge among legal practitioners. Thomas Kasper recently described in the Illinois Bar Journal how false accusations readily "become part of the gamesmanship of divorce." Bar associations and even courts themselves sponsor divorce seminars counseling mothers on how to fabricate abuse accusations. "The number of women attending the seminars who smugly — indeed boastfully — announced that they had already sworn out false or grossly exaggerated domestic violence complaints against their hapless husbands, and that the device worked!" astonished Thomas Kiernan, writing in the New Jersey Law Journal. "To add amazement to my astonishment, the lawyer-lecturers invariably congratulated the self-confessed miscreants." The UMKC Law Review reports a survey of judges and attorneys found complaints of disregard for due process and allegations of domestic violence used as a "litigation strategy."

Since most reports involve no crime, it is hardly surprising that domestic violence, as Rips and Lester claim, "is notoriously difficult to prosecute, because [alleged?] victims frequently drop charges or refuse to testify when their [alleged?] abusers [allegedly?] threaten them with further violence." What is this "further violence"? "One study found that many such witnesses received threats that their children would be kidnapped if they testified," says Joan Meier of George Washington University. Their children kidnapped! These wife-beaters are so sophisticated they have organized child kidnapping operations to intimidate witnesses. Translation: The accusations are concocted to separate the children from their fathers, and the fathers understandably want their children back. Each lie necessitates another.

Rips and Lester continue: "In the 1980's and 1990's, the refusal of [alleged?] victims to cooperate in the prosecution of their [alleged?] batterers may have resulted in the dismissal of as many as 70% of all domestic violence cases." The refusal of Rips and Lester to observe the presumption of innocence in their writing is not only standard in feminist literature; it pervades state and federal statutes, including the notorious Violence Against Women Act, for which Congress is now considering appropriations. VAWA grants encourage governments to "mandate and encourage police officers to arrest [alleged?] abusers." It is more likely that the cases were dismissed because there was no evidence, because there was no violence and no crime, and because the objective of obtaining custody was accomplished.

But now we can secure convictions even when there is no evidence, no victim, and no crime:

"Prosecutors, police officers, and advocates for domestic violence victims have developed techniques, together known as 'evidence-based prosecution,' that focus on the use of reliable evidence, like 911 tapes, to build cases that do not depend on the cooperation of the [alleged?] victim."

As with the Ministry of Truth, "evidence-based prosecution" is designed to convict those against whom you have no evidence. And since the defendant — excuse me, the "batterer" — can be convicted using hearsay, with no right to face his accuser, it is not really necessary that there even be an accuser, or for that matter a crime.

It is not difficult to see where this is going. In Britain, "special domestic violence courts" allow third parties such as civil servants and pressure groups to use "relaxed rules of evidence and the lower burden of proof" to bring actions against those they identify as batterers, even if no alleged "victim" comes forward (or even exists). "Victim support groups," who say women "should be spared having to take legal action," can now act in the name of an anonymous or purported plaintiff to seize the children, homes, and other property of men who have not been convicted of any crime. Similar "domestic violence courts" are being created in the United States and Canada, where "conviction rates have risen" and "guilty pleas are way up," Mother Jones magazine enthuses. In other words, rigged trials and the certainty of conviction allow prosecutors to extort guilty pleas.

Sending men to jail is apparently now a virtue in itself. In San Diego, Rips and Lester report with glee, suspending due process protections "obtains convictions in about 88% of its cases." Convicting people of crimes — thousands of people of whose guilt or innocence we can have no first-hand knowledge — is now something to be celebrated for its own sake.

Guilt used to be determined by juries weighing evidence in specific cases. But Rips and Lester apparently know that these "batterers" are guilty en masse, and all that remains is removing constitutional impediments to convicting them. Trials, juries, evidence, and the entire apparatus of due process are superfluous because guilt is not defined by whether an individual committed a specific deed. Guilt is a foregone conclusion because the defendant belongs to a class that is guilty by political definition. The New Jersey family court invokes feminist jargon to argue that allowing due process protections to abuse defendants "perpetuates the cycle of power and control whereby the [alleged?] perpetrator remains the one with the power and the [alleged?] victim remains powerless."

My niggling interpolations are no doubt annoying for prosecutors whose careers depend on their conviction rates. They have effectively institutionalized the archetypal loaded question, "When did you stop beating your wife?"

 

Stephen Baskerville is a political scientist and president of the American Coalition for Fathers and Children and author of Family Violence in America: The Truth about Domestic Violence and Child Abuse.


 

Davis v. Washington

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Comments by Charles E. Corry, Ph.D., Equal Justice Foundation

The article When Words Bear Witness New York Times, March 20, 2006, was written with reference to the Davis v. Washington and the Hammon v. Indiana cases heard by the U.S. Supreme Court on that date. Coincidentally, just two days after Dr. Baskerville published the article above, on June 19, 2006, the Supreme Court handed down its ruling on these two cases.

By a 9-0 vote in Davis v. Washington justices ruled that a Washington man's right to confront his accuser was not violated because he was not able to cross-examine his ex-girlfriend at trial. In this case a 911 operator heard from Michelle McCottry that she had been assaulted by her former boyfriend, petitioner Davis, who had reportedly just fled the scene.

Despite the fact that Michelle McCottry was not present and did not testify at Davis's trial for felony violation of a domestic no-contact order, the trial court admitted the 911 recording. Based on the Sixth Amendment's Confrontation Clause, Davis objected, but was overruled. He was convicted as a result of the 911 tape. The Washington Court of Appeals affirmed the trial courts decision, as did the State Supreme Court. They concluded that, among other things, the portion of the 911 conversation in which McCottry identified Davis as her assailant was not testimonial.

The court held that only "testimony" is subject to cross examination and falls under the Confrontation Clause of the Sixth Amendment. They speciously stated that "McCottry's frantic answers were provided over the phone, in an environment that was not tranquil, or even safe," despite the admitted fact that Davis had already left before she called. The court found that "the statements in Davis were taken when McCottry was alone, unprotected by police, and apparently in immediate danger from Davis. She was seeking aid, not telling a story about the past," and were therefore not testimonial. It isn't clear from the record how she was in "immediate danger" if Davis had already left?

Incredibly, the Supreme Court has therefore held that statements made by alleged crime victims to 911 operators or police during emergencies can be used in court even if those victims do not testify at trial for whatever reason. It doesn't take much imagination to realize that victim's advocates and shelter workers across the country will now counsel women to act hysterical and histrionic when calling 911 and, especially, to make the call when the "batterer" isn't present (that used to be known as suborning perjury). And "victims" should be sure to claim they are "in fear for their life." Of course police soon learn to scoff at such claims, and those in real peril may be ignored, but that will not affect the personal vendettas of most "victims."

The Davis v. Washington decision will in many cases negate the impact of Crawford v. Washington in controlling "evidence based prosecution" where the "victim" refuses or is unavailable to testify. Of course, in most of the those cases the woman doesn't want to prosecute after thinking it over, or where the neighbors or a passerby called the police without the knowledge or consent of the parties. Conversely, those women who brought charges for reasons of personal gain, acrimony, revenge, or to gain advantage in divorce or custody disputes will be greatly assisted by the Davis v. Washington ruling. Such women can now make an hysterical 911 call with the defendant conveniently absent and, after the police arrive and visit for awhile, she can depart for points unknown with the kids and her new boy toy without having to face cross examination in a court of law.

Obviously, his innocence is no excuse or even of concern.


 

Hammon v. Indiana

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Comments by Charles E. Corry, Ph.D., Equal Justice Foundation

In another case, Hammon v. Indiana, presented in the same ruling as Davis v. Washington, the justices ruled 8-1 that a police officer had crossed the line, from dealing with an emergency to conducting an investigation, when he questioned a woman about what her husband had done to her well after she had been assaulted.

When police responded to a reported domestic disturbance at the home of Amy and Hershel Hammon, Amy told them that nothing was wrong, but gave them permission to enter. Once inside, one officer kept Hershel in the kitchen while the other interviewed Amy elsewhere, as is standard practice. The officer interviewing Amy had her complete and sign a battery affidavit. Amy did not appear at Hershel's bench trial 1 for domestic battery and other charges. However, her affidavit and testimony from the officer who questioned her were admitted over Hershel's objection that he had no opportunity to cross-examine her. Hershel was convicted, and the Indiana Court of Appeals affirmed in relevant part. The State Supreme Court also affirmed, concluding that although Amy's affidavit was testimonial and wrongly admitted, it was harmless beyond a reasonable doubt. Courts often rule that such mistakes are "harmless error" even though it no doubt played a large role in Hershel's conviction. We grow skeptical of such evasions.

The Supreme Court also found that Amy Hammon's statements were testimonial and were not much different from those in Crawford. It is clear from the circumstances that Amy's interrogation was part of an investigation into possibly criminal past conduct. There was no emergency in progress, she told the police when they arrived that things were fine, and the officer questioning her was seeking to determine not what was happening but what had happened. Objectively viewed, the primary, if not sole, purpose of the inquiry in the Hammon case was to investigate a possible crime.

Writing for the majority, Justice Antonin Scalia said 911 statements are admissible in court when police are trying to deal with an emergency, e.g., a 911 call, as in Davis v. Washington. But such statements cannot be used if the emergency has ended and police are gathering evidence to use in filing criminal charges as in Hammon v. Indiana. Therefore the Supreme Court reversed and remanded the case of Hershel Hammon back to the state court.

The Supreme Court ruled that "the Indiana courts may determine on remand whether a claim of forfeiture by wrongdoing — under which one who obtains a witness's absence by wrongdoing forfeits the constitutional right to confrontation — is properly raised in Hammon, and, if so, whether it is meritorious," e.g., did Hershel conspire with Amy to insure her absence at trial. Without such a finding the court ruled that the Sixth Amendment operates to exclude Amy Hammon's affidavit. Hopefully, the prosecution either dismissed the case against Hershel or he was able to obtain a jury trial the second time. It is widely recognized that juries are very unlikely to convict in such cases.

Justice Clarence Thomas was the lone dissenter in Hammon v. Indiana, writing that he believed the officer's testimony about what the woman had told him was admissible in court. But Thomas said he does not believe the majority's definition of when an emergency ends and an investigation begins is workable, and neither do we. In either case it is clear that a man is innocent until he can prove his innocence and that a man now has absolutely no defense against a scripted, histrionic 911 call made in his absence.


 

Note:

1. The Equal Justice Foundation regards a bench trial, or trial to a judge, as simply a long, slow way of pleading guilty. The events here support that opinion.

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Added October 4, 2006

Last modified 10/7/16