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Archive for October 16th, 2009

Transplanted diagram of how it’s done — justice4mothers.wordpress.com

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How Abusers Use The Court System To Continue to Victimize Their Partners and Children

Written by Gail Lakritz and presented by Angela Warren at the Pueblo Conference on Oct. 14, 2009

(This is searchable, and was I believe Southern Colordao Domestic Violence Symposium.  I’ll maybe get the link up soon; took place 10/13 or 10/14/09, and was one of the FEW ones I saw talkinga bout the legal abuse also — Dr. Sharon Araji, Peter Jaffe, et al.)

In the last post (also today), I documented one case in one state, part of it.  

Just understand that not all is as it seems in this alternate reality called family “law.”

 

Gail writes:

When a woman finally makes that decision to end the abuse and to flee the abusive situation, she rightfully expects that the police, her lawyers and the courts will protect her and her children from further harm. Being a member of the Sheriff’s Posse, that is what I was thought. After all, the courts always operate solely by the law, correct? (Scan audience for nods of agreement) We all know that does not happen and that is why I was so confused by my litigation. When injustice reared its ugly head, it flew in the face of everything I thought our country stood for, and, as with most victims of abuse, I came to realize that the system is stacked against the victim.

Today, I want to speak to you about some of the ways the abuser will use the system to further the abuse during the litigation process. It is my hope that, by exposing these tactics, you will recognize in your peers, and perhaps yourselves, what is being done has real, and all too often, deadly consequences.

The litigation abuse begins the moment the abuser is arrested. He plays on the sympathy of the arresting officers. He will use excuses to enlist them in his game. He is, after all, a master at deception. He has years of practice. He is the person who can look you straight in the eye and lie. During the ride to the lock up, he will say things like “She is an alcoholic or a drug addict”, “She is always picking on the kids” or “She takes all the money and spends it on herself and we never have enough to eat.” Anything that will garner sympathy and sway them to lessen the severity of what is written in the arrest report. And, being taught to spot the antagonist of a situation as they true perpetrator of the situation, the police officer, who is generally male, will empathize with the abuser, and slant his report to favor the abuser. He will ignore what he has been taught, that the victim is most often the one who is hysterical and angry at having been attacked and side with the often calm and rational sounding architect of the situation. And the abuser has gained his first needed corner stone to further the abuse, for in the future, any calls to 911 will be met with skepticism by the police and all future reports of violence will be seen as insane acts by the actual victim.

During the booking process and his appearance for arraignment, when the victim is not present to hear what is being said to the magistrate, he will again repeat his reasons for the attack. Laying the blame on the victim. Now he has widened his circle of conspirators. Word will filter from these people to the Bailiff and on to the judge that there were “extenuating circumstances” that predicated the attack.

Now, as we all know, the key to any successful litigation is money. With money, comes the right lawyers and a venue that is considered to be the “home turf” for that lawyer. Abusers control the money, therefore, they can afford the lawyers who consider winning to be the sole measure of success, not the just application of the law.

In each court system in America, there are lawyers that are known to be the “dirty trick” lawyers. They are the ones who use often unethical and illegal means to deny the Constitutional Rights of a litigant and victim. They will look the other way, or outright encourage, the use of terror tactics against a victim. Judges and other lawyers within the local Bar Association know who these practitioners are will look the other way. In some court systems, judges will actually instruct new lawyers with “I don’t care what you do in my courtroom so long as I am not investigated” leaving the avenue open for them to ply their brand of law in any manner they see fit. The idea is to win, not to be just. The abuser will seek out these lawyers, perhaps getting the name of one from a police officer or someone else in the system who just happens to be overheard talking or from another inmate in the lock up.

So now, the abuser has assembled his “dream team”. The police, the dirty tricks lawyer and the complacent judge. What more could he ask for than to have swayed the system and set the victim up for further abuse? The abuser will get a slap on the wrist, be sent to Anger Management and, in some jurisdictions, have his record of abuse sealed. In Anger Management, the prep will learn new and better ways of abusing. He will learn to abuse without leaving the outward marks that would land him back in jail. He will hone his skills, through the knowledge passed on by other perpetrators attending these sessions. The things that worked for them will be shared in group in the form of “I reacted to the situation by….” You fill in the blank, as each and every one of you know the tactics, know how the pain can be caused both mentally and physically to a victim without leaving the marks or a trail of abuse.

The first thing the abuser will do after being released from jail is to widen his circle of allies. His dirty tricks lawyer has instructed him to get out in front of his victim, and being the superior liar that he is, he is only too willing to accommodate. Generally, abusers are loners, having few friends and having disassociated themselves from family. He has allowed only minimal if any contact between his victim and her family. He will suddenly become the “social butterfly” contacting people to enlist their help, always with the story of having been the victim in the situation. Neighbors that were shunned by him in the past are now become his confidants. Whispers of abuse by the victim are passed from one person to another. This serves two purposes. It provides a support system for the abuser as well as removing any hope of support for the victim.

The next step to the tried and true method of using the system to abuse is to make the victim seem insane to the system. The abuser or one of his allies will begin the relentless process of attacks that are designed to discredit. Break-ins of the home of the victim are a common means as are well placed phone calls where the abuser uses threats, such as the victim never seeing her children again. An abuser will actually enlist the help of the unwitting child, promising rewards of gifts or, if teenagers, no boundaries to live by. The abuser will reward the child for such things as removing evidence against the abuser from the victims home, lying to police or being complacent about what was witnessed in an incident. Often, no system of reward is needed. It is fear of the abuser, that places the child in the unenviable situation of having to lie. The child senses what will cause the wrath of the abuser to rise against them. If you come away from this presentation with anything, this is the one piece of information I hope you retain. The cycle of abuse is learned and continued by this one tactic alone, using the children as tools of abuse. Any person within the system who even suggests that the abuser use this tactic is guilty of nothing less than murder.

Police, having been repeatedly told that the victim is insane, will respond to such things as break-ins as a sign that the abuser is correct in his assessment of the victim. All too often, the abuser will leave something that informs the victim he was there, but at the point in time that the police are called, the victim will not know what is missing, if anything. Sometimes the victim will find veiled death threats, a picture that only the victim and her abuser knows the meaning of, a cartoon left on the computer screen, that is meant to frighten and intimidate. A tire will be slashed when her car is hidden from public view, mementos that have little or no monetary value will be missing. Reporting these incidents to the police enforce the abuser’s position. And, when the victim turns to her lawyer for help, if she has one, she is told to ignore all violations of her home and person. You see, it takes two lawyers to execute a well choreographed legal Tango, and by this time, the repeated calls to the police by the victim, the well placed lies by the perpetrator, and, with the assistance of the complacent judge, her lawyer has been won over to not assist in any meaningful manner. Thus the victim is turned into the abuser and seen only as a source of possible revenue for her own lawyer who will offer little if any assistance in seeing that justice is blind, not blinded by gold.

During the actual litigation process, there will be a number of players that will be easily swayed by the events that have lead up to this process. GALs and CLRs are swayed by having contact with the abuser and his ever growing stable of allies, lawyers, police and judges. If the children are afraid of the abuser, they dare not say anything to these people that would endanger themselves. Social workers, mental health professionals, even medical doctors who rely on the system for income will not oppose the well built facade of the abuser and his well scripted theater of abuse.

At this point, I would like to see a show of hands. How many of you are judges? Please raise your hands. Keep your hands raised, please. How many are police officers? Keep your hands raised, please. How many of you are lawyers who represent abuse victims exclusively? Good, now if you could all stand up and look around. Do you recognize people from your own court systems in this room? Isn’t it nice to know that some of the people who are not standing could, and I emphasis the word could, be manipulating you? Thank you, you may all be seated.

How do the dirty tricks lawyers actually manipulate? First, talk is cheap, and the dirty tricks lawyer and his client never seem to run out of voice. They will take every chance to influence the judge and the opposition lawyer if there is one, the GAL and CLR, the therapist and mental health evaluator , the social worker, shelter workers and people in the Court Clerk’s office. Ex parte is common and rampant in any court system. It can’t be stopped unless you, the judges, choose to stop it. A few well placed words prior to the opening of court, the happened, but planned, introduction of the abuser to you prior to proceedings so that you can see how likeable this person is and to get his side, again getting out ahead of the opposition in the litigation. Tools used to put a human face on an inhuman act of violence.

During the early stages of the litigation, the dirty tricks lawyer and an abuser will go for the “all or nothing” approach to a custody question. The abuser, and his lawyer, being confident in the groundwork they have already laid, will not present a parenting plan. They will often seek to move out of the jurisdiction, often so far away from the abused, as to effectively terminate all parental rights. The abused, on the other hand will present a generous plan which will include more time with the abuser than a court would normally mandate. The judge, being the Solomon of the court, knows he cannot split a child down the middle, will have to award temporary custody to one parent or another, and this is usually to the person who already has “possession” of the child at the time of the hearing. (make the hand sign for quotes when you say the word possession). If the victim was forced to flee without the child, or if the child happens to be visiting the abuser at the time of the hearing, guess who gets the temporary custody? Yup, the abuser.

This is the beginning of the motions process. The abuser’s lawyer will file motions with the court, often filing them back to back, and always asking for contempt sanctions against the victim. If the victim is unrepresented, this confuses and terrorizes her. If she is one of the fortunate ones, one of the women who was able to afford a lawyer, and motions and subpoenas are filed on her behalf, they are ignored by the dirty tricks lawyer. In the meantime, if she is Pro Se, her filings are ignored by the clerk’s office or disappear all together. It never ceases to amaze me how often victims report missing filings, even whole files of proceedings that have gone missing. I can only surmise how it could happen, all of which violate state law. When she asks for a subpoena which must go through the courts for approval, the subpoena that is received for service contains errors made by the person who entered it into the system, precluding the effectiveness of that subpoena. These errors would only be obvious to a trained lawyer, thereby giving the dirty tricks lawyer a reason to quash.

The motions process will offer more ample opportunities for the dirty tricks lawyer to ply his trade. He will mail important filings to the wrong address, often transposing the actual numbers, to prevent receipt in time for rebuttal. He will refuse to accept mail from the Pro Se and then claim that it was not sent to him. He will state a date and time verbally, but put another date and time in writing, often bolding it to attract attention to the erroneous information. He will send a copy of a minor issue in a motion, with proof of mailing, and have a second copy hand served. The problem with this is that he has actually filed two separate motions with the court, one of paramount importance and the one of minor importance. He will then have proof of two separate deliveries to the victim and state that the one hand served was in reference to the major issue while the one mailed was in reference to the minor issue. Of course, he will blame all of this on the victim. She gave me the wrong address, I never got it, she was served and I have the proof.

Depositions are an extremely useful tool for the trickster. Though most states follow the rules of the Federal Courts for deposition, tricksters do not. As all lawyers know, the only time depositions should be used is when information cannot be gotten by subpoena. The dirty tricks lawyer will force deposition to make the victim face her abuser in an environment controlled by the trickster. One deposition trick will be to inform the pro se that a date and time for a deposition of his client has been set. He will send a list of questions to be asked, and state that the deposition will be limited to these questions. This offers the opportunity to pound the Pro Se with intimidation and terrorist tactics of threats. It also forces the Pro Se into setting up a second deposition of her own. Not knowing that it is not required to submit questions in advance, the Pro Se will dutifully submit the entire list of questions to the trickster, giving him time to concoct answers that would favor him. And lest the abuser make a mistake, there is nothing to worry about. The Court Reporter in attendance is one favored by the lawyer. One only need to Google the search term “Changed Transcripts” to confirm this is a common practice. The number of hits are well in excess of 7,000,000.

Proffers are useful when it comes to the dirty tricks lawyer. It is not uncommon for them to submit Proffers to the Pro Se that are never filed with the courts. These are filled with the lies that the abuser intends on in court and are designed to see which arguments are going to be used to counteract the lies in court.

Surprise witnesses are the life blood of the trickster. No subpoena has been issued to these people to appear, but they just happen to be in the area when the court date came up. Judges have a duty to curtail the use of these convenient witnesses, but seldom do, preferring to overrule objections. Often, they are nothing more than hired guns for the defense, parroting whatever the trickster wants them to say. There is often no rebuttal for their testimony, as the Pro Se or her lawyer had no time to prepare for their appearance.

Witness tampering is blatantly illegal but used by the dirty trick lawyer and his client at every turn. All that is needed is for the potential witness to be mislead with a story of the victim being the true abuser, and after all, if they testify, they would be putting the children, and perhaps themselves, in danger. Surely, anyone in their right mind would not want to testify under these circumstances, given that few people are willing to testify in the first place. If that doesn’t work, there is intimidation of the witness. Most people have something in their backgrounds they would prefer no one find out. The dirty tricks lawyer is a master at using innuendo and sources like police, family and acquaintances to find that one skeleton. If that doesn’t work, there is always the avenue of the witness’s employer. Innuendo can be placed in letters to the employer from the lawyer stating that this or that has never been cleared.

In his bag, the dirty trick lawyer and his client rely on the assistance of Child Protective Services. If a direct call from his client does not produce the desired response, there is always the “innocent and disconnected” third party report. These reports can vary from the upper end of sexual abuse or exploitation of the child to reports that the mother is furnishing drugs to the child to such things as a child being left alone. In one case I know of, the GAL was talked into calling CPS when a teenage boy overdosed. What the GAL forgot to report was that the 15 year old had arrived from his father’s home with a plastic bag full of pills, and when the mother discovered them, he grabbed them and downed them in an attempt to get rid of the evidence. The same mother was accused of leaving the than 16 year old alone for two hours by the same GAL. Again the GAL left out a very important fact. The child was at the home of a friend.

Court orders are often altered to reflect what the attorney and abuser wants. One mother, while living here in Colorado heard a knock on her door one day. The father, who had never once exercised his visitation, had moved five years previously to Washington state. He went to the local Colorado police with an altered court order for full custody of the son, than 7 years old. No one questioned the validity of the order, in fact, the police were only too willing to help him in removing the child from the mother. She never saw her son again. She was able to locate him last year in a suburb of Seattle, but now 20, he has had it drilled into his head that she wanted nothing to do with him and had willing given him up.

If all else fails, there is always the use of Parental Alienation to fall back on. Dr. Richard Gardner, using no identifiable research and much to the consternation of all recognized authorities, first placed this Syndrome in the minds of the courts to discredit mothers and to help men save on alimony and child support payments. We are all familiar with the theory that states that the mother is toxic to the relationship between the father and his children and that the only true cure for this toxicity is to severely limit visitation or to remove it all together. Abusers and their attorneys love to use PAS. It is one of the most effective forms of abuse of the victim.

Through all the court abuse, and I have only touched on some of the verifiable things that women suffer in the courtroom, there is a continued onslaught from the abuser. Stalking, break-ins, destruction of property and threats of further harm to the victim are normal. Checks for alimony or child support that are never received are also widely reported. Harassment is an ongoing problem to the victim. Planting seeds of doubt of a mother’s love for her child in the child’s mind, any avenue an abuser can think of will be used.

All of this for one objective, to carry on the abuse. And, the players in the courtroom are all aiders and abettors to that abuse, whether they realize it or not. The crimes we allow these people to get away with are crimes that are punishable by law, and by each and every one of you allowing them to be predicated on victims of violence, you are taking part in those crimes.

Now, as one last thing, I would like some of you to take part in a fun little exercise to reinforce some of what you have heard here today. I would ask that every judge in the audience stand up and glace around the room. I want you to pick out a person here that you do not know and walk over to them and without saying a word, I want you to grasp their hand and shake it.

Now, again without giving this person your name, I want you to whisper in their ear the year, color and make and model of the car your closest loved one drives. Now, I want you, without giving the city or town you live in, to tell them the street address of that person. Good. You have just given someone who may be a trickster lawyer or an abuser all the information they need. You have just put your loved one in danger, possibly signing that their death warrant.

Think about it and try to have a nice day.

Authors Note: I, Gail Lakritz, grant permission for any and all parts of the above to be reproduced so long as the express purpose of the reproduction is for use in combating violence against women and children. All other reproduction of this article for any other purpose is expressly forbidden.

Written by Let's Get Honest

October 16, 2009 at 7:24 pm

A “case in point” of some family court matters. . . . .

with 8 comments

 

 

 

Again, see “selfreportedfool.org” and also see “justice4mothers.wordpress.com” for an article given at the Southern California Domestic Violence Symposium, Pueblo, Colorado:  Angela Warren speech is posted there (and my comment responding to it also). Then go to lizgates library.  Then think about how horrific it is that SOME children don’t sleep in the same house as their fathers at night.  One of these below didnt have a bed, maybe she didn’t sleep too well, either.  And she ain’t sleeping too well these days, as her mom faces contempt on a minor issue (including threats of jail), while the other charges keep dropping by the waysides.  

 

 

File this under “AFTER SHE SPEAKS UP — DOMESTIC VIOLENCE . . CHILD ABUSE”  And Cast Characters, Script, Action.

Disclaimer

What I’m posting here IS hearsay.  I have no firsthand knowledge of the actual events and have not personally met any of the participants (any more than I’ve personally met almost anyone whose writing shows up on my site!).  On the other hand they fit entirely with the patterns being reported nationwide.  Judge for yourself if this account is coherent, chronological, and reports a sequence of events in an orderly fashion.  This Mom requests blogging, I suspect she was just a little annoyed at getting a 30 day sentence, stayed, for (in essence) doing what Moms do, trying to protect that offspring.

Notice the staggering amount of people involved in what otherwise should be a straightforward situation.  I numbered them, making the original flow — well it no longer flows.  I just want us to notice.

Ask yourselves HOW is it possible for any mother to move forward in life with this situation.  As in other cases involving prior abuse, her re-marrying was a hotpoint for the ex.  Who apparently moved back in with Mom.  

I’ll highlight the different individuals involved.  Notice the roles they played in giving one little girl nightmares, along with, I imagine her Mom not a few restless nights also.

I was just going to paste the neatly paragraphed text.  However, I got involved counting the characters involved (about 36 by the end) and other commentary.  ASSUMING for the sake of argument this is factual (I happen to believe it is), this is but a sample of how it can go in the family law venue.  Trust the experts, they are all in control.

By the end you’ll likely see that the end goal is to put a child with a CONCERNED mother into foster care  needlessly, after repeated punitive measures for trying to protect her daughter.  This is how one little girl is learning how the world works.  Learn well, little one . . . . . 

 

AFTERWARDS, I’ll repeat, the uninterrupted text.  We are talking, waking nightmare, people.  For the adults, too.  And lots and lots of BUSINESS for the individuals in the courts, some of who may have personality disorders, I’d guess….

I’m responsible for chopping up the text, all bolds, all bullets, anything in {{……}}} and any scatalogical terms (there are none}.

After, I’ll simply paste the narrative version.  I think the restraint of putting it out beats the lack of restraint of filing repeated contempt orders on a woman trying to be a mother and move on in life, and judges scolding women in court for not getting along with dudes that THEY believe are molesting one of their offspring, especially after 2 separate individuals, qualified to do so, had it confirmed.

 

As this gives names, I assume that it might be found on FindLaw, etc. — the sequence of actions (not including CPS involvement) is likely public record.

==========

Can be blogged…..names named….agencies….blog blog blog blog blog blog blog….did I say you can blog? yes,,,you can blog =) 

 

A BEDTIME STORY (my title, not hers):

 

In 2003 my abuser forged my signature and had it notarized on a court stipulation giving him “50/50” custody and all back child support dropped, this is a paternity case. The notary was his real estate/insurance agent. The only reason I found out about the forgery is that he tried to remove our daughter, Michaela from daycare and they contacted me immediately.

People:  

  • 1. this woman/mother,
  • 2. her abuser, (Craig Hensberger — see next para.)
  • 3.  notary/real estate/ins. agent (conflict interest?),
  • 4. daughter Michaela, Daycare.
  •  

I filed a police report regarding the forgery, the DA, Jay Conley, he said that “even though we know who the likely suspect is there was no proof that my abuser, Craig Hensberger, did this”. Even though no one else would benefit from such an arrangement but the “likely suspect”.

  • 6.  Whoever took Police report (police unnamed)
  • 7.  DA Jay Conley (dismissive, even though it represented, if true, perjury and affected custody)
  •  

I got a handwriting analysis done on my own and presented that evidence to the DA, he stated that only “proved it was not my signature”, he refused to do anything. 

  • 8.  Whoever did handwriting analysis
  • 7.  DA (again) dismissive (again)

I went to court in front of Family Court Commissioner, Frank Calvert, of Oconto County, who just happened to be the GAL on my divorce/custody proceedings in 1997 who recommended custody to my ex abusive husband, John Fetterly.

  •  

9.    Former Abusive Husband, John Fetterly

10.  Former GAL, antagonistic {{give custody –of 3 older daughters?, not shown yet — to ex-abuser}} in 1997, now Family Court Commissioner, Frank Calvert.  CONFLICT OF INTEREST MUCH?

 

It was also Mr. Calvert who made sure that in his recommendations that in order for me to have primary placement with my older three daughters I was to have a “stable living environment away from Craig Hensberger”.

 

In 2003 Mr. Calvert moved up in ranks from lowly GAL to Family Court Commissioner and even with me expressing to him my concerns of his ability to be impartial I was ignored, chastised and intimidated by him. 

 

He refused to hear or see any evidence regarding the forgery and kept it as is, “50/50” custody and ordered child support in the amount of $25 per week based on 50/50 custody even though the father had placement every other weekend. 

 

Character note:  ex-abuser also forges.

 

The weekend of Fathers Day in June 2005 my daughter was in the custody and care of her father. {{indicates mother was likely obeying a court order}}  On Saturday of that weekend he was arrested for his second DUI in less than a year with our daughter as a passenger in the middle of the day

 

Seems to be a cluster of behaviors.  I fail to see the mothers’ involvement in this situation — he got himself arrested, apparently, while daughter was with him, not her.

 

At this time I had decided to move out of the state {{Fairly understandable in context??Or maybe there was another reason…}} and per the county rules sent a certified letter to my former abuser to notify him of our move. He refused the certified letter and it was returned to me, although he was alerted that I was planning on moving and then filed an objection to my move. 

 

{{Do these men read from the same rulebook?  Wasting her time, and money, obstruction of co-parenting communication.  Been through this myself.  Certified letters don’t grow on trees.  And aren’t free of $$ or time.}}

 

We again went in front of Frank Calvert who appointed GAL, Aaron Krzewinski. 

 

  • 11.  GAL, Aaron Krzewinski. 
  •  
  • COMMENTS:  Clear difficulties here.  Rather than actually rule on them (abuser, drunk & arrest, possibly forging a letter to gain ground in time with child, child support only $25/week), Family Court Knee-jerk reaction:  “QUICK!  Look official, call in another court professional.”  Note:  litigant (mother) questions the Commissioner’s impartiality.  WHAT are the chances that Calvert & Krzewinski are perhaps — cronies??

 

 

They ordered that my child stay in her current school but that Craig’s mother was to do all the transportation and supervision of placement. 

  • 12.  Craig’s (ex-abuser’s) mother.

 

{{COMMENT.  This woman/Mom wants to move.  Perhaps she has legitimate reasons, perhaps according to the court she doesn’t.  Are they discussing the reasons?  NO.  The first court reaction is punitive!, to make a stipulation regarding her daughter’s schooling (since when are courts educational experts??) and give transportation control over to the mother of the abusive ex — even though the same? judge had refused to allow her custody of her older 3 daughters unless she found stable housing AWAY from this same guy, Craig H.  Now how’s she supposed to do that if she can’t get away, period?}}

 

{{As to this practice — involving the abuser’s parents.  My comment:  They raised an abuser, right?  So how “cool” is that little one going to be in his or her care?  Parents set values.  Whatever happened to the adult offspring’s values, if he abused women?}}

 

This was when my former abuser anger began to escalate and he vandalized three vehicles of mine which rendered them useless as well as loosening all the lug nuts on my tires which could of killed me as the tire fell off while traveling to work one morning. 

 

13?  I’m going to hazard a guess that maybe she reported this (police).  I’m going to hazard a guess that perhaps she got help replacing the tire that fell of her car while it was going down the road.  At a minimum, passer by.  Then again, I have changed a tire and used a jack.  I bet she was just a little shook up and pissed off….

 

{{3 vehicles in order, or that she had simultaneously?  Doesn’t say.  }}

 

{{Note;  Sounds like so far, it’s a near-total “rout” in court.  He just won.  But, to punish her for being challenged? or caught (as in, DUI), here comes some vandalism, potentially lethal.  Oh yes, and she appears to be working.  Tire fell off en route to work.  Anyone hear about interfering with work as a characteristic of abuse??}}

 

Finally in October 2005, I moved in with my mother who lived well within the 150 mile radius I was allowed to move without notifying him. 

  • 13.  The Mom’s Mom.  An identified 13th party.

{{Sounds like financial independence is an issue here….Again, she is complying with court orders, ridiculous though they seem, at least to me}}

In December he served 20 days in jail for his DUI w/our daughter (the minimum is 30 days) and he also was allowed out on “Huber” so that he only had to report to jail at night when he was done working or not working. 

  • 14-15?  At least one jailer.  you know, that’s gboing to be more than one person involved in a man staying in jail 20 days.  But we’ll just chalk it up to ONE.

{{a free cot, and possibly one hot?  That’ll show him not to endanger children by driving drunk..  Kind of reminds me of Nicholas Soppa, head of OCSE, which comes under the noble HHS dept. of US government, who was (while working and I bet at a good salary) spending nights or was it weekends in jail over back “family” support}

After he did his time he filed a motion to enforce placement when he was in jail for most of December.

 

Again FCC Frank Calvert chastised me in court for not hav[ing] legal representation and stated that if he could make me move back he would.

{{See character #10 above, who now has affected the family’s (and see other 13 involved) life in:  1997, 2003, and here, 2005.}}

He then gave my former abuser every weekend custody and ordered that I drive roundtrip every weekend because my abusers license was suspended. He stated that it wasn’t “his fault I moved, it was mine”. He also refused to review child support and the $25 weekly was upheld. 

{{Gas, and weekend time, does not grow on trees.  But apparently this woman is supposed to make it.  Meanwhile, Commissioner Calvert appears to have some true 21st century notions of who is responsible for another individual’s criminal behavior.  Let’s see:  DUI vs. attempting, in accord to first stipulation to find stable housing AWAY from abuser, to move away froma buser?  Clearly the latter behavior needs to be punished….}}

In August 2006 I moved back to Oconto County with my then fiancé’ soon to be husband, Chad Tipton. 

  • 16.  Chad Tipton.  Must be a brave man, what with Hensberger, Calvert et al around.  Very perhaps, what with taking it so hard, repeatedly, on the chin from the court (after from the men, as described as “abusers”), our Mom here would like to have a companion or partner.  Perhaps Mr. Tipton found something to admire in her.  I can see it — stamina!  Well, I only speculate, but here is a 16th person in the drama.

It was the Labor Day weekend and we were set to drive her for visitation with her father. {{translation:  comply with court orders}} 

My daughter stated that she was scared to go because her father was putting his finger in her “butt crack” down her pants, she made a motion of up and down. She made this revelation and stated how uncomfortable it was to her.  {{note:  Labor Day means 3 days in a row. I don’t know how the 50/50 was arranged, but the little girl was in school part of the days.  Now she’s facing a 3-day, non-school weekend with Dad alone…}}

 

I immediately contacted Marathon County CPS who interviewed my daughter. They did make a TPR and advised that Oconto would then handle it when we moved there after that weekend. 

  • 17.  Marathon County CPS.  {I’m guessing that this is the county where her mother lived, within the 150 mile radius.  Or thereabouts}.  DAUGHTER IS INTERVIEWED.

During the first weeks of September 2006 my daughter was met at her school by Oconto County CPS worker Carrie Silbernagel

  • 18.  Ocoton County CPS, Carrie Silbernagel.

After not hearing from Ms. Silbernagel 

{{Note:  Not hearing???  A mother has just presented a daughter in another county, to that CPS worker, who believed the daughter’s account of sexual abuse by her father, and made a TPR.  Assuming this WAS true, how do you think a mother might feel?  How would a CPS worker assume a mother might feel?  yet it was up to the MOTHER to follow up with the 2nd county’s CPS.  Note — if this worker had followed the case at all, she’d have seen prior domestic violence and problems with the girl’s father, which should’ve been a red flag.  If she’d been overworked and couldn’t bget to it, than admitting that would’ve been the more honest thing to do}}.

 

I contacted her and she was very volatile towards me. Stating that she didn’t believe my daughter, that she believed she was “coached” and that she had children younger than my daughter who could provide specific details such as smells, times of days, etc. but my daughter did not. 

  • Apparently this worker doesn’t know much about “DID.”  Look it up.

She stated that she knew of my “history with CPS” and reporting false allegations of sexual abuse. I asked her to explain as I had never made any other report to CPS regarding sexual abuse. 

{{That phrase is a red flag (key phrase) to those who are familiar with some of the literature from the fatherhood movement.  Discreding DV and child abuse seem to be part of it.    }}

She referred to another CPS worker that I had allegedly spoke to in 2004 regarding my older daughter. She made comments that she “knew ALL about me” etc. 

{{In other words, without directly talking to this mother, and having dismissed her claims without informing the mother she did so, this new worker she has correctly analyzed her character.  WHAT ABOUT THE REPORT FROM MARATHON COUNTY?  Filed in the trash bin??  Welcome to this arena, folks!!}}

When I pointed out that my daughter is in danger as her fathers history of driving drunk. She then stated that “driving drunk with his child didn’t make him a bad father, he made a bad choice”.  {{And could’ve killed a child…}} She refused to take any action and the matter was closed. 

{{WELCOME to “DUE PROCESS AT CPS.”  Sound like too much authority vested in a single person??}}

In May 2007 my former abuser decided to file for sole custody of our daughter as his behavior was to the point of madness since I was getting married on July 7, 2007. 

{{This is what Presidents Bush, Clinton and Obama WANT, right?  And a whole BUNCH of conservative religious denominations across a few diffferent faiths.  No father absence, no female-headed households, these girl(s) are going to have a man in the home.  One less social crisis to worry about, right?

. . . .wrong . . . . . . }}

{{Sounds to me as though this is fully 10 years after she separated from Mr. John Fetterly, with a relationship inbetween?}}

It was during this time that FCC Frank Calvert recused himself finally after I had filed a complaint against him with the Wisconsin Judicial Commission regarding his impartiality and biasness.  [bias]

  • 19.  Wisconsin Judicial COmmission X however many they are, plus any support staff involved in the process.

{{Exercising her free will to protest wrongs.  Sounds like I read that in the Constitution somewhere.  Unbelievable, really, but the Wisconsin Judicial Commission — were they going to act or did the fact that she was serious wake up Commissioner Calvert, lest he get a real blot on his name??}}

By this time he was already facing charges of endangering safety with a dangerous weapon {{a.k.a. vehicle}} as he tried to run my then fiancé’ and 13 yo daughter in a grocery store parking lot one night as he waited outside for us. 

{{Had he done so, those charges would’ve also had an added charge, laying in wait.  }}

During that summer he was given… 

  • 20.  Since Calvert recused himself, let’s assume another judge (unnamed) is involved.  I’m up to 20 now, not including any grocery store personnel involved in witnessing the vehicular stuff.

every other week custody and they kept it that way until school started. Every bad behavior he gained more and more custody as the GAL was continually getting more money. 

{{Seems to be a pattern; I’ve noticed this too.  GAL is drawing a salary.}}  

By January 2008, last minute he agreed to joint custody and dropped his sole custody claim

{{i.e., “I’m dangerous to others, do not appear (if so, none is showing up in the narrative) to have found another woman, or let go of THIS one, despite, she’s about to remarry and is trying to have a life…..  But I still want JOINT custody of that daughter, even though I’m DUI, molesting (alleged), and dangerous in a vehicle (alleged).”}}{{Abusive habit:  Making outrageous claim, then backing up a foot, perhaps.  Typical of the controlling personality.}}

In February 2008 my daughter came home and said that her grandmother had forced fed her soup and then her vomit while threatening to beat “her ass” with a wooden spoon if she didn’t eat it

{{see personnel, #12, above….}}{{See my prior comments on the “wisdom” of giving kids to the custody of an abuser’s parent.  Sounds, like mother, like son .}}

 

I contacted CPS {{DOES she have another legal option?  Women are not so easily let off the hook in contempt of court orders in family law venues, FYI}}  and was told that the same CPS worker Carrie Silbernagel whose last name was now Burke as she married would contact me. 

  •  Not quite a player in the case, but I’m counting.  Add #21, Mr. Burke, simply indicating change of status for CPS worker.  Again, did Mr. Burke know that his new wife is blowing off charges of child molestation?

After I told her of the force feeding incident she stated that she wanted to get down to the bottom of this “once and for all”. 

  • {{Like, by checking some facts??  the phrase “get down to the bottom of this “once and for all” indicates a lack of patience, irritation.  Not exactly receptive. . . . . .  Indicates there’s a real puzzle to be solved, not a potential abusive situation.}}

She suggested to take my daughter to a neutral third party who would interview her, I agreed. Although she only needed one parents permission she made the appointment at the Child Advocacy Center when it was the fathers placement time to avoid any of my ‘coaching’ etc. 

  •  

On February 25 my daughter was picked up by Carrie Silbernagel Burke 

{{not coached or influenced by her, naturally — the woman who had ignored Michaela’s first set of complaints about her Daddy’s habit of putting his finger down her butt crack and moving it up and down….}}

and had my child interviewed by Sara Schumacher who was a forensic interviewer for child abuse victims. 

21 Real (not theoretical, like newlywed Mr. Burke)  “neutral 3rd party.” to interview I believe Michaela..Sara Schumacher who was a forensic interviewer for child abuse victims.

The interview was recorded and transcribed. During the interview not only did my daughter tell of the soup incident but once again how her father sexually abused her. She told both Sara Schumacher and Carrie Silbernagel Burke that he father had instructed her to lie that day to them. 

{{Perhaps with 2 there, this little girl feels a little safer.  Age?  In 2003, she was in day care.  This is 2008.  Can’t be TOO old}}

By that afternoon I received a call from Carrie telling me that they were substantiating the abuse and placing my daughter with me. 

{{Did I hear an apology anywhere from Ms. Carrie? Or a note of any future policy changes made in light of this oversight?}}

I thought that the nightmare was finally over. The CPS worker advised my husband and I that it would be a good idea if we left town for the night, get a hotel room as when she contact Craig he was extremely upset. She also advised that we should immediately file a child abuse restraining order for the TPR would not help protect my daughter very long. She explained that they would be filing a CHIPS (child in need of protection) petition {{Signifying??}}  and she would be in contact with us. 

{{So now, the Dad that was driving drunk and wasn’t a bad dad, had just made a bad choice, had been identified as making more than one “bad choice” AND they are acknowledging a possible volatile reaction.  Of course FCC Calvert (then GAL?) had noted this years ago, and it was I bet in the file.}}

The next day I filed child abuse restraining orders against Craig and Betty Hensberger and it was granted by Oconto County [[JUDGE or FCC, I presume]] Richard Delforge for 30 day pending the CHIPS petition. 

  • 22 (possibly already in the picture, above)  Richard Delforge.)

 

By March CPS {{NOTE:  2/25/09 interview with child identifies abuse}} was already back pedaling and we were advised by Carrie Burke that Corporation Counsel, Robert Mraz, 

  • 23 Corporation Counsel, Robert Mraz (unclear in context who this is….Which corporation?)

stated that I was already “protecting my daughter in Family Court” when in fact there was no such order but only the one in which she was to go every other week. Then CPS offered for both parties to sign a stipulation agreement for “co-parenting” classes for both parents

{{Never miss an opportunity to push those “co-parenting” classes.  Ladies, Gents — I suspect that some of this activity was funded by ACCESS VISITATION funding, and suggest you look into the finances of whoever was involved there….Like Child Advocacy Center?}}

They never even ordered any alcohol or drug assessment for Craig whose history of alcohol abuse was severe. {{Why fix an identified problem, when unidentified ones left to be pioneered through co-parenting classes?}} My attorney at the time, Michael Perry,  advised me not to agree to the stipulation and also my former abuser refused to sign. 

  • 24.  Attorney for mother, Michael Perry.

Also in March he was acquitted of his charge of endangering safety with a dangerous weapon (i.e., vehicle) (what about lying in wait?). Somehow my former abuser contacted my ex husband and had my older daughters recant their statements. When this was brought forward to the DA, Jay Conley of possible witness tampering, he stated it wasn’t because Craig only talked with my ex husband. 

  • {{In the absence of other facts, should I presume this was the equivalent of mind-reading, or Seance 101?  For WHY daughters might recant see my last post, Giles Amicus Brief about this topic.}}

On May 21, 2008, my daughters 10th birthday, an Administrative Appeal was held by recused FCC Frank M. Calvert. 

{{exCU U U USE me??}}

My lawyer and I were not privy to this hearing in which (1) my former abuser, (2) his attorney, (3) Corporation Counsel, Deputy Director of Oconto County CPS Greg Benesh [[I think this is 3rd, and not 2nd) and (4) Carrie Burke were a part of. {{WHY not Sara Schumaker, who’d done the interview?}}  {{Commentator added the #s in paragraph}}

  • 25 Craig H’s attorney John D’Angelo (see below)
  • 26 if not same person, Greg Benesh ((above) County CPS.

The only reason my attorney learned of this hearing was due to my abusers attorney, John D’Angelo, sending a copy of [[transcript of?]] the hearing in which Mr. Calvert unsubstantiated the sexual abuse allegations. My attorney advised me to get the recording from the hearing and I did. {{see Mr. Mraz, counsel, above?  I’m getting a little lost on the hearings…Plus, hadn’t Calvert recused himself earlier?  So this was then his SECOND hearing while recused??}}

{{As such, that hearing was illegall and should be scratched from the record.}}

What I heard was chilling as my character and credibility was more of an issue than the actual abuse. 

{{In other words, we are indeed in the family law venue, and not in a criminal investigation of outrageous abuse of a child, which she has now reported 3 times to 3 different workers}}

Especially in which Mr. Calvert snickers and makes fun of me that he’s “well aware of the difficulties with Ms. Fetterly-Tipton”. My lawyer instructs me to file a complaint with the judicial commission as Mr. Calvert had recused himself and he had no right to hear that case. When I requested the CD recording of the hearing Mr. Calvert’s assistant Julie Depouw stated that perhaps Calvert “forgot” he recused himself. A complaint was filed with the judicial commission regarding the ongoing bias and unethical practices of Frank M. Calvert. 

  • 27.  Mr. Calvert’s assistant Julie Depouw .  Let me see, does SHE have any ethical constraints in her behavior, as a civil employee, I’m presuming?

In July 2008 my former abuser wanted his placement times back. {{At about that time, this mother wants her LIFE back, i bet…}}  We went to court and after my two witnesses testified, 

  • 28, 29 – Mother’s 2 Witnesses

Sara Schumacher and Greg Benesh, Judge David Miron ordered a recess. 

  • 30.  Judge David Miron.

My lawyer, my former abuser’s lawyer, GAL Krzewinski met in chambers.

My lawyer returned to say that the judge was not going to hear any more testimony because so far we had not proven that there was any substantial change in circumstances for change in placement. {{As bad as that placement was to start with, given the child abuse, drunk driving, and overall harassments}} He also stated that due to her father subpoenaing my daughters counselor, Jennifer Werner, 

  • 31  Daughter, abused, is GOING to need a counselor, who is Jennifer Werner.  Is this now the 4th individual/expert the 10 yr old is confiding in? Since the courts have pretty much discredited her MOM.  Who is paying for that?  The abuser?  The courts (taxpayers..)?

her (Ms. Werner’s) supervisor 

  • 32 Child’s Counselors’ supervisor.

wrote to the judge to tell of his disdain that she was being ‘used’ as a pawn in this proceeding and she had no knowledge of the ongoing custody dispute (her counseling records do not reflect that). 

{{how can you counsel without a little background info?  At a minimum, prior legal proceedings are GOING to influence a child’s perceptions and give it some context}}

My lawyer stated I had to agree to two supervised visits, one overnight unsupervised, one weekend unsupervised then back to week on week off

{{Pardon me, but what the F___K??}}{{First of all, the attorney represents the mother, and not vice versa! and this is a protective mother.}}

providing that GAL Krzewinski and newly appointed counselor, Mike Mervilde, found no reason for that schedule, and they didn’t. 

  • 33 Counselor (GAL or counselor? Mike Mervilde…for FATHER (see below)

When I had tried to make further appointments with Mike Mervilde I was thwarted by saying that he was only court ordered to see her twice. When I requested copies of her counseling records I was told that my daughter wasn’t the patient, her father was. 

 

By the very first unsupervised visit my daughter came back stating her father was drinking and driving with her. Every other week she was coming home from his home with lice. CPS said that wasn’t neglect. My daughter refused to go for visitation and in October her father filed his first of three contempt motions on me

{{. . . .  not having a vital life of his own at this point, or other pursuits in this world….}}

I was found in contempt by Judge Miron and it was ordered that my daughter be forced to live with her abuser for five weeks straight, I was not allowed visitation

{{See STOPFAMILYVIOLENCE.org and elsewhere; NAFCJ.net, see all kinds of indications nationwide that children are being sent to live with their abusers after reporting abuse.  The clear intent of this is to tell BOTH the Moms AND the kids, they must NOT report abuse of any sort, up to and possibly including incest — or at least sexual molestation of a LITTLE GIRL.  I guess Wisconsin never heard of, or doesn’t care about, Joyce Murphy case…..}}

This was when I was first accused of PAS, a.k.a. ’brainwashing’ her. The judge stated that he believed that I had “poisoned” my daughter against her father. When I shook my head slightly the judge yelled at me to not shake my head at him.

{{Let me annotate.  By protesting, this Mom had gotten a crooked (i’d say) judge to recuse himself, Calvert.  Now here’s Miron (I think), and is he a bit better?  ??}}


She left on 10/31/09 and returned on 12/05/09.
During that time she was tormented and tortured by her father and grandmother. My daughter still says that was the worst time of her life. 

In February my daughter came home and said her father caught a 8lb Walleye and kept it alive in his 100 gallon fish tank for two weeks. He then proceeded to use her and sign her up for three different fishing derbies in one weekend with the same fish. He told my daughter if she told no one she would receive an ipod. The total of $150 of prize money that was won in my daughters name she never saw one penny or an ipod. 


Her father was caught in his lying, cheating and stealing but blamed her for “ratting him out”. This was the turning point that my daughter lost any last respect for her father, she would ask me, “why would he do this to me?”,
I had no answer, I still don’t. 

{{He’s a user….}}

She missed a weekend visit in March, by Monday he went to her school with the police to pick her up. {{MAYBE he had another kind of contest to win 2 weeks of child support for, $50 a pop}} She refused and the Gillett police officer, Gary Pemmrich, threatened my daughter that he would take her down to juvenile hall, she would be placed in foster care, she would never see me again and that she would have to go to a new school

  • 34.  Serve and protect (Dads) police officer Gary Pemmrich.


It was after this That my former abuser brought me to court again for contempt, the judge did not find me in contempt and dismissed it.
This was when Judge Miron made a threat that perhaps neither parent was fit and maybe he would put her in foster care. 

{{AND NOW YOU HAVE THE ENDGAME PLAN.  NOW, THIS IS THE MOM’S ACCOUNT, BUT THEORETICALLY, THE TROUBLE SHE’S CAUSING IS REPORTING ABUSE THROUGH THE PROPER CHANNELS, AND FUNCTIONING AS A MOTHER, FOR WHICH ONE TIME BOTH MOTHER AND DAUGHTER WERE PUNISHED, BY DAUGHTER SPENDING A5 WEEKS WITH 2 ABUSERS.  IS THIS OR IS THIS NOT A TECHNIQUE OF WAR, TO TORTURE RELATIVES FOR LACK OF “COMPLIANCE”??}}


He then changed the order that each parent could pick up the child directly from school rather than the police station as the drop off. {
{EVEN THOUGH — SEE START OF STORY — CRAIG H. HAD DONE THIS ILLEGALLY BEFORE, AT HER DAYCARE, HAVING ALLEGEDLY FORGED A JUDGE’S SIGNATURE, 5 YEARS EARLIER….}}

Shortly after she returned from her week placement stating how cold she was at her fathers, stating his electricity was “broken”. The next week it was the same, finally CPS was alerted that there was no electricity, running water/plumbing, refrigeration for food etc. They then began staying at his mothers small two bedroom home, my daughter was given a choice of either sleeping on the living room floor or the unfinished basement. By August my daughter had been frightened several times by her grandmother driving her drunk, specifically one occasion where they took her out with them to the bar and as the grandmother stumbled out of the bar she proceeded to get into the wrong vehicle and then drove them home, drunk. 

 

My daughter asked to stay at my home on his weekend 8/7/09 due to her older sisters coming for a visit. She kept saying how relaxed she was, how well she slept in an actual bed in her own room. She called him and told him she would not return to his mothers house because she had no bed or bedroom there. By 8/12/09 he filed a motion of contempt on me but waited until last minute 9/18/09 to  have me served. Due to the untimely notice it was dismissed, He soon filed another contempt. 

{{FILING CONTEMPT MOTIONS SEEMS TO BE A LIFE SKILL THIS GENTLEMAN HAS PICKED UP ALONG THE WAY….IF NOT SUSTAINING A SEPARATE LIVING ARRANGEMENT SUFFICIENT FOR A GIRL TO HAVE A LITTLE PRIVACY.}}

 

At no time after school started did he ever go to school to retrieve his daughter. In court on 10/14/09 he and his mother perjured themselves that she has her own room, I’m brainwashing her, they don’t drink. When asked why he didn’t go pick her up he would say he was “working” or he was “busy” but I was being held accountable. On 9/4/09 we drove up to the grandmothers house for my daughter to retrieve her clarinet. We requested the assistance of Oconto County Sheriffs Deputy Ryan Zahn, who happens to be the nephew of Craig Hensberger, grandson of Betty Hensberger. At no time did the grandmother attempt to keep my daughter at her residence, her father according to his testimony was working. 

  • 35, Oconto Co Sheriff’s Deputy Ryan Zahn — purpose?  Normal pickup with a volatile situation.  She wanted a witness, I bet.  Too bad about the nepotism factor.

Judge Miron found me in contempt {{FOR WHAT?  GOING TO THE HOME?? TO GET A CLARINET??}} and ordered me 30 days in county jail, with it stayed and ordered that my daughter be picked up by her father on 10/16/09 after school. I was also found in contempt and ordered 30 days in county jail for claiming my daughter on my taxes even though he has an order to do so the IRS will not allow him to since he unlawfully claimed her from 1999-2007. Also because she lived with me exclusively from Feb 2008-August 2008 which the federal government agreed I could claim her. Judge Miron also made his threats again that maybe he would “contact CPS because neither one of us is a fit parent and maybe he should take he away from both of us”. He stated that maybe foster care was the best place for her. 

{{This judge is obviously trying to create a paper trail that would justify that outrage.  How is a mom supposed to function around all this?  And yet she’s trying…..}}

Since the (improperly delayed) contempt motion being served on 9/18/09 my child has began sleep walking, having night terrors, and was placed on Xanax for her sleep disturbances and anxiety issues brought on by her father. She has stated she is not going with her father ever again, she can’t and won’t. She won’t be in school tomorrow due to her flu and is adamant that nobody can make her go, not even me. 

{{end of narrative}}

UNINTERRUPTED VERSION:

In 2003 my abuser forged my signature and had it notarized on a court stipulation giving him “50/50” custody and all back child support dropped, this is a paternity case. The notary was his real estate/insurance agent. The only reason I found out about the forgery is that he tried to remove our daughter, Michaela from daycare and they contacted me immediately.

 

I filed a police report regarding the forgery, the DA, Jay Conley, he said that “even though we know who the likely suspect is there was no proof that my abuser, Craig Hensberger, did this”. Even though no one else would benefit from such an arrangement but the “likely suspect”. I got a handwriting analysis done on my own and presented that evidence to the DA, he stated that only “proved it was not my signature”, he refused to do anything. 

 

I went to court in front of Family Court Commissioner, Frank Calvert, of Oconto County,[[WISCONSIN]] who just happened to be the GAL on my divorce/custody proceedings in 1997 who recommended custody to my ex abusive husband, John Fetterly. It was also Mr. Calvert who made sure that in his recommendations that in order for me to have primary placement with my older three daughters I was to have a “stable living environment away from Craig Hensberger”. In 2003 Mr. Calvert moved up in ranks from lowly GAL to Family Court Commissioner and even with me expressing to him my concerns of his ability to be impartial I was ignored, chastised and intimidated by him. He refused to hear or see any evidence regarding the forgery and kept it as is, “50/50” custody and ordered child support in the amount of $25 per week based on 50/50 custody even though the father had placement every other weekend. 

 

The weekend of Fathers Day in June 2005 my daughter was in the custody and care of her father. On Saturday of that weekend he was arrested for his second DUI in less than a year with our daughter as a passenger in the middle of the day. At this time I had decided to move out of the state and per the county rules sent a certified letter to my former abuser to notify him of our move. He refused the certified letter and it was returned to me, although he was alerted that I was planning on moving and then filed an objection to my move. We again went in front of Frank Calvert who appointed GAL, Aaron Krzewinski. They ordered that my child stay in her current school but that Craig’s mother was to do all the transportation and supervision of placement. This was when my former abuser anger began to escalate and he vandalized three vehicles of mine which rendered them useless as well as loosening all the lug nuts on my tires which could of killed me as the tire fell off while traveling to work one morning. 

 

Finally in October 2005, I moved in with my mother who lived well within the 150 mile radius I was allowed to move without notifying him. In December he served 20 days in jail for his DUI w/our daughter (the minimum is 30 days) and he also was allowed out on “Huber” so that he only had to report to jail at night when he was done working or not working. After he did his time he filed a motion to enforce placement when he was in jail for most of December. Again FCC Frank Calvert chastised me in court for not have legal representation and stated that if he could make me move back he would. He then gave my former abuser every weekend custody and ordered that I drive roundtrip every weekend because my abusers license was suspended. He stated that it wasn’t “his fault I moved, it was mine”. He also refused to review child support and the $25 weekly was upheld. 

 

In August 2006 I moved back to Oconto County with my then fiancé’ soon to be husband, Chad Tipton. It was the Labor Day weekend and we were set to drive her for visitation with her father. My daughter stated that she was scared to go because her father was putting his finger in her “butt crack” down her pants, she made a motion of up and down. She made this revelation and stated how uncomfortable it was to her. I immediately contacted Marathon County CPS who interviewed my daughter. They did make a TPR and advised that Oconto would then handle it when we moved there after that weekend. 

 

During the first weeks of September 2006 my daughter was met at her school by Oconto County CPS worker Carrie Silbernagel. After not hearing from Ms. Silbernagel I contacted her and she was very volatile towards me. Stating that she didn’t believe my daughter, that she believed she was “coached” and that she had children younger than my daughter who could provide specific details such as smells, times of days, etc. but my daughter did not. She stated that she knew of my “history with CPS” and reporting false allegations of sexual abuse. I asked her to explain as I had never made any other report to CPS regarding sexual abuse. She referred to another CPS worker that I had allegedly spoke to in 2004 regarding my older daughter. She made comments that she “knew ALL about me” etc. When I pointed out that my daughter is in danger as her fathers history of driving drunk. She then stated that “driving drunk with his child didn’t make him a bad father, he made a bad choice”.  She refused to take any action and the matter was closed. 

 

In May 2007 my former abuser decided to file for sole custody of our daughter as his behavior was to the point of madness since I was getting married on July 7, 2007. It was during this time that FCC Frank Calvert recused himself finally after I had filed a complaint against him with the Wisconsin Judicial Commission regarding his impartiality and biasness.  By this time he was already facing charges of endangering safety with a dangerous weapon as he tried to run my then fiancé’ and 13 yo daughter in a grocery store parking lot one night as he waited outside for us. During that summer he was given every other week custody and they kept it that way until school started. Every bad behavior he gained more and more custody as the GAL was continually getting more money. 

 

By January 2008, last minute he agreed to joint custody and dropped his sole custody claim. In February 2008 my daughter came home and said that her grandmother had forced fed her soup and then her vomit while threatening to beat “her ass” with a wooden spoon if she didn’t eat it. I contacted CPS and was told that the same CPS worker Carrie Silbernagel whose last name was now Burke as she married would contact me. After I told her of the force feeding incident she stated that she wanted to get down to the bottom of this “once and for all”. She suggested to take my daughter to a neutral third party who would interview her, I agreed. Although she only needed one parents permission she made the appointment at the Child Advocacy Center when it was the fathers placement time to avoid any of my ‘coaching’ etc. 

 

On February 25 my daughter was picked up by Carrie Silbernagel Burke and had my child interviewed by Sara Schumacher who was a forensic interviewer for child abuse victims. The interview was recorded and transcribed. During the interview not only did my daughter tell of the soup incident but once again how her father sexually abused her. She told both Sara Schumacher and Carrie Silbernagel Burke that he father had instructed her to lie that day to them. By that afternoon I received a call from Carrie telling me that they were substantiating the abuse and placing my daughter with me. I thought that the nightmare was finally over. The CPS worker advised my husband and I that it would be a good idea if we left town for the night, get a hotel room as when she contact Craig he was extremely upset. She also advised that we should immediately file a child abuse restraining order for the TPR would not help protect my daughter very long. She explained that they would be filing a CHIPS (child in need of protection) petition and she would be in contact with us. 

 

The next day I filed child abuse restraining orders against Craig and Betty Hensberger and it was granted by Oconto County Richard Delforge for 30 day pending the CHIPS petition. By March CPS was already back pedaling and we were advised by Carrie Burke that Corporation Counsel, Robert Mraz, stated that I was already “protecting my daughter in Family Court” when in fact there was no such order but only the one in which she was to go every other week. Then CPS offered for both parties to sign a stipulation agreement for “co-parenting” classes for both parents. They never even ordered any alcohol or drug assessment for Craig whose history of alcohol abuse was severe. My attorney at the time, Michael Perry,  advised me not to agree to the stipulation and also my former abuser refused to sign. 

 

Also in March he was acquitted of his charge of endangering safety with a dangerous weapon. Somehow my former abuser contacted my ex husband and had my older daughters recant their statements. When this was brought forward to the DA, Jay Conley of possible witness tampering, he stated it wasn’t because Craig only talked with my ex husband. 

 

On May 21, 2008, my daughters 10th birthday, an Administrative Appeal was held by recused FCC Frank M. Calvert. {{SEE BELOW}} My lawyer and I were not privy to this hearing in which my former abuser, his attorney, Corporation Counsel, Deputy Director of Oconto County CPS Greg Benesh and Carrie Burke were a part of. The only reason my attorney learned of this hearing was due to my abusers attorney, John D’Angelo, sending a copy of the hearing in which Mr. Calvert unsubstantiated the sexual abuse allegations. My attorney advised me to get the recording from the hearing and I did. What I heard was chilling as my character and credibility was more of an issue than the actual abuse. Especially in which Mr. Calvert snickers and makes fun of me that he’s “well aware of the difficulties with Ms. Fetterly-Tipton”. My lawyer instructs me to file a complaint with the judicial commission as Mr. Calvert had recused himself and he had no right to hear that case. When I requested the CD recording of the hearing Mr. Calvert’s assistant Julie Depouw stated that perhaps Calvert “forgot” he recused himself. A complaint was filed with the judicial commission regarding the ongoing bias and unethical practices of Frank M. Calvert. 

 

In July 2008 my former abuser wanted his placement times back. We went to court and after my two witnesses testified, Sara Schumacher and Greg Benesh, Judge David Miron ordered a recess. My lawyer, my former abuser’s lawyer, GAL Krzewinski met in chambers. My lawyer returned to say that the judge was not going to hear any more testimony because so far we had not proven that there was any substantial change in circumstances for change in placement. He also stated that due to her father subpoenaing my daughters counselor, Jennifer Werner, her supervisor wrote to the judge to tell of his disdain that she was being ‘used’ as a pawn in this proceeding and she had no knowledge of the ongoing custody dispute (her counseling records do not reflect that). My lawyer stated I had to agree to two supervised visits, one overnight unsupervised, one weekend unsupervised then back to week on week off, providing that GAL Krzewinski and newly appointed counselor, Mike Mervilde, found no reason for that schedule, and they didn’t. 

 

When I had tried to make further appointments with Mike Mervilde I was thwarted by saying that he was only court ordered to see her twice. When I requested copies of her counseling records I was told that my daughter wasn’t the patient, her father was. 

 

By the very first unsupervised visit my daughter came back stating her father was drinking and driving with her. Every other week she was coming home from his home with lice. CPS said that wasn’t neglect. My daughter refused to go for visitation and in October her father filed his first of three contempt motions on me. I was found in contempt by Judge Miron and it was ordered that my daughter be forced to live with her abuser for five weeks straight, I was not allowed visitation. This was when I was first accused of PAS, a.k.a. ’brainwashing’ her. The judge stated that he believed that I had “poisoned” my daughter against her father. When I shook my head slightly the judge yelled at me to not shake my head at him.

She left on 10/31/09 and returned on 12/05/09. During that time she was tormented and tortured by her father and grandmother. My daughter still says that was the worst time of her life. 

 

In February my daughter came home and said her father caught a 8lb Walleye and kept it alive in his 100 gallon fish tank for two weeks. He then proceeded to use her and sign her up for three different fishing derbies in one weekend with the same fish. He told my daughter if she told no one she would receive an ipod. The total of $150 of prize money that was won in my daughters name she never saw one penny or an ipod. 

Her father was caught in his lying, cheating and stealing but blamed her for “ratting him out”. This was the turning point that my daughter lost any last respect for her father, she would ask me, “why would he do this to me?”, I had no answer, I still don’t. 

 

She missed a weekend visit in March, by Monday he went to her school with the police to pick her up. She refused and the Gillett police officer, Gary Pemmrich, threatened my daughter that he would take her down to juvenile hall, she would be placed in foster care, she would never see me again and that she would have to go to a new school. 

It was after this hat my former abuser brought me to court again for contempt, the judge did not find me in contempt and dismissed it. This was when Judge Miron made a threat that perhaps neither parent was fit and maybe he would put her in foster care. 

He then changed the order that each parent could pick up the child directly from school rather than the police station as the drop off. 

 

Shortly after she returned from her week placement stating how cold she was at her fathers, stating his electricity was “broken”. The next week it was the same, finally CPS was alerted that there was no electricity, running water/plumbing, refrigeration for food etc. They then began staying at his mothers small two bedroom home, my daughter was given a choice of either sleeping on the living room floor or the unfinished basement. By August my daughter had been frightened several times by her grandmother driving her drunk, specifically one occasion where they took her out with them to the bar and as the grandmother stumbled out of the bar she proceeded to get into the wrong vehicle and then drove them home, drunk. 

 

My daughter asked to stay at my home on his weekend 8/7/09 due to her older sisters coming for a visit. She kept saying how relaxed she was, how well she slept in an actual bed in her own room. She called him and told him she would not return to his mothers house because she had no bed or bedroom there. By 8/12/09 he filed a motion of contempt on me but waited until last minute 9/18/09 to  have me served. Due to the untimely notice it was dismissed, He soon filed another contempt. At no time after school started did he ever go to school to retrieve his daughter. In court on 10/14/09 he and his mother perjured themselves that she has her own room, I’m brainwashing her, they don’t drink. When asked why he didn’t go pick her up he would say he was “working” or he was “busy” but I was being held accountable. On 9/4/09 we drove up to the grandmothers house for my daughter to retrieve her clarinet. We requested the assistance of Oconto County Sheriffs Deputy Ryan Zahn, who happens to be the nephew of Craig Hensberger, grandson of Betty Hensberger. At no time did the grandmother attempt to keep my daughter at her residence, her father according to his testimony was working. 

 

Judge Miron found me in contempt and ordered me 30 days in county jail, with it stayed and ordered that my daughter be picked up by her father on 10/16/09 after school. I was also found in contempt and ordered 30 days in county jail for claiming my daughter on my taxes even though he has an order to do so the IRS will not allow him to since he unlawfully claimed her from 1999-2007. Also because she lived with me exclusively from Feb 2008-August 2008 which the federal government agreed I could claim her. Judge Miron also made his threats again that maybe he would “contact CPS because neither one of us is a fit parent and maybe he should take he away from both of us”. He stated that maybe foster care was the best place for her. 

 

Since the contempt motion being served on 9/18/09 my child has began sleep walking, having night terrors, and was placed on Xanax for her sleep disturbances and anxiety issues brought on by her father. She has stated she is not going with her father ever again, she can’t and won’t. She won’t be in school tomorrow due to her flu and is adamant that nobody can make her go, not even me.

A few PIPL:
Frank Metcalf Calvert
Judgment for money Dec. 08, satisfied APril 09:
Capital One Bank USA NA vs. Frank M Calvert
Oconto County Case Number 2008CV000451[Image of Lady Justice]The Consolidated Court Automation Programs (CCAP) / Wisconsin Circuit Court Access
Civil Judgment(s) $ 22,132.54 (Paid in full)
(Actually the link is a court system search tool).
 OK, I pulled up Craig T Hensberger, so here it goes: Technically this ain’t copying well, but it tends to verify the report that they guy
is very active legally, and a lot of cases are getting dismissed. . . . . 

 

 

<>02-28-08

Lorraine F Tipton vs. Craig T Hensberger 

Oconto County Case Number 2008CV000097 

The court did not issue an injunction against the respondent in this case. The reasons were stated on the record and 

may be explained in the final order. No adverse inference should be drawn against the respondent when an injunction 

is denied or a case dismissed. The fact that a petition was originally filed means nothing

 

<>02/20/2003

Lorraine Fetterly vs. Craig Hensberger Brown County Case Number 2003CV000322

 

The court issued an injunction against the respondent directing the respondent to not engage in certain conduct. The prohibitions are described in the injunction.

<>02-19-03 Craig T. Hensberger vs. Susan L Younger Oconto County Case Number 2003CV000061

Harassment Restraining Order. Delforge, Richard (Responsible Official)

Ms. Younger is about 38, and two attorneys involved:  Hensberger’s is David D Brown and hers Burke, Edward D.  In otherwords, he is filing a harassment order on HER.  Status:  Closed.

<>06-26-01 Oconto County Case Number 2001SC000577 Wells Fargo Financial vs Craig Hensberger

(Small claims of some sort)

Well, Mr. Craig T. Hensberger appears to have a twin brother (same birthdate, including year) called Craig I.  When you put it together, there show 22 cases (Oconto & Brown Counties) with him on it, including Ms. Younger’s harassment order against Him.

But just so y’all know the FISH story was apparently not a FISH tale, here’s one:

06-20-02 State of Wisconsin vs. Craig I. Hensberger Oconto County Case Number 2009FO000215

The defendant Craig I. Hensberger was found guilty of the following charge(s) in this case.

  • Transport Live Fish Away from Waters or Shores of Restricted Waters. This is not a criminal offense and results only in a money penalty for this offense.  (Let’s hope the $150 won paid the fine in full….)

Oconto County Case Number 2005CM000033  

The defendant Craig I. Hensberger was found guilty of the following charge(s) in this case.

  • Disorderly Conduct, a class B misdemeanor, Wisconsin Statutes 947.01.

Oconto County Case Number 2005CT000093

The defendant was charged with both OWI (2nd w/ Passenger < 16 Yrs Old) and Operating w/PAC-Passenger <16 Yrs(2nd).

The defendant was found guilty of OWI (2nd w/ Passenger < 16 Yrs Old) and the other charge, Operating w/PAC-Passenger <16 Yrs(2nd),

was dismissed by the court.  Craig I Hensberger was found guilty of OWI (2nd w/ Passenger < 16 Yrs Old),

an unclassified misdemeanor, Wisconsin Statutes 346.63(1)(a).

That passenger was the little girl . . . . apparently . . . . . . Clearly some priorities are upside down:  Where are all this mother’s “misdemeanors,” and if they aren’t there, then how come she and her daughter are being punished in this manner?  And who the heck is Susan L. Younger in the case?

Written by Let's Get Honest

October 16, 2009 at 12:00 pm

So Many Valuable Lessons from the “Giles Amicus Brief” (2005)

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(1) . . . BUT FIRST, let me (have some fun) present(ing) the DILEMMA of FAMILY LAW & CUSTODY in the face of DOMESTIC VIOLENCE:

 

CHILD CUSTODY, supposedly:

1. Safety & Welfare: The court’s “primary concern” is to assure the child’s health, safety and welfare. This codified policy is a companion to the Legislature’s express finding and declaration that “the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.” [Ca Fam § 3020(a) (emphasis added); see also Ca Fam § 3044]

(KINDof sounds like California Penal Code 273, spousal batterers are a clear and present danger to the physical and mental health of the citizens {{including LITTLE ones??}} of the state of California.  And so what is done about this?  The old 1-2-3.  

  • 1.  Restraining order, in one venue or another.  Possibly a night, or more, in jail (often not, but sometimes it happens), or in egregious circumstances, maybe even anger management classes. . . . . 
  • 2.  IF all are alive, when restraining order is about to expire, and kids exist, THIS is where family law can come in.  Alternate plan – it can come in right away, in other cases.  BOOM!  There goes safety and separation.
  • 3.  Thus it remains, until another “event’ happens, either a child-stealing, a custody-switch (with supervised visitation for the former PROTECTIVE parent, often a mother).  Or 18th birthdays.  Or (ad lib…).

IN THE INTERIM, spice it up with child support orders (and attempts to enforce them), parenting education, and a heavy dose of therapeutic jurisprudence.  


2. “Frequent and continuing contact” with both parents and shared parenting: ((??)) Further, an appropriate custody/visitation award must take into account the codified policy “to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy” . . .except where the contact would not be in the child’s best interest pursuant to Ca Fam § 3011 [Ca Fam § 3020(b) (emphasis added)]

==================

WOW, that “joint” stuff is what took me out from actually having a post-separation LIFE, of any significant duration at any significant endeavor.  The most years I ever got it up to was four in a row, one job, but the dynamic is this:  SEPARATION WITH SUCCESS FOR (the nonviolent spouse) == ESCALATION TO CAUSE FAILURE (from the enabled abuser)– ever tried to “share parenting” after domestic violence?  Or during it, for that matter?  During it, it was my job.  PERIOD.  Along with a whole lot of other non-paying jobs, including doormat and punching bag, wife, lover (when he was in the mood) and erstwhile Mom.  And bringing home the bacon.    After it, it was his, PERIOD.  Or the other closest male in the family.  I just was to take the remote control orders.  I protested, I lost custody.  Not even legally.  So be it.  Thank you, Mia Patria, fatherhood movement, engaging fathers, fatherlessness crisis, and faith institutions.  . . . . . 

(God, I miss those girls!)

 

(2) . . . Criminal v Family Law — from STOP FAMILY VIOLENCE website:

 

Creating Justice Through Balance: Integrating Domestic Violence

Juvenile and Family Court Journal, September 1, 2003

The core values underpinning family law—particularly as it addresses child custody and visitation—too often are at odds with the safety needs of victims of domestic violence. Family law, which has developed {{ACCORDING TO THIS SOURCE — and, I HAPPEN TO DIFFER PERSONALLY–FAMILY LAW historically had promoters, founders, etc.}} as a mechanism for defining, recognizing, establishing, reordering, or supporting the familial and intimate relationships that people have with one another, is frequently inadequate to address domestic violence. In contrast, the specialized domestic violence law provisions operating within family law function under rationales and theories distinct from those underlying family law. {{And are one weak-assed response to them, too!}} The inherent substantive tensions that arise when the two bodies of law are simultaneously implemented can result in conflicting court orders, unsafe interventions, and inappropriate remedies for survivors of domestic violence.

  • NEWS ARTICLE

    Custodians of Abuse

    Boston Phoenix, January 9, 2003

    Nearly 25 experts in custody litigation involving child-abuse claims were interviewed for this article. All had the same three complaints about family court — regardless of which state’s court system they were familiar with: – Family courts do not rely on criminal investigators to examine child-abuse claims. They rely on family advocates called guardians ad litem (GALs) – psychologists, social workers or lawyers who lack expertise{{AND/OR INTEREST….}} in investigating child sexual abuse. – Normal courtroom checks and balances don’t exist in family court. Unlike in criminal and civil court, there are no juries, plaintifs often lack legal representation, hence judges can act without scrutiny. Often judges act in ways that violate basic rights of due process. – Gender bias and traditional stereotypes of how women and men parent children continue to prevail in family court. As a result, while conventional wisdom has it that mothers almost always fare well in family court, statistics show otherwise.  More

(PAY ATTENTION NOT ONLY TO ARTICLE, BUT ALSO PUBLICATION….)

The above shows some of the dilemma — 2 languages, 2 approaches, 2 different sets of expectations, goals, and most importantly — standard of evidence when it comes to DV.  Yet one family can be experiencing behavior that is appropriately addressed in criminal, yet attempts made to handle it in family.  In general, no can do — I say.  

(3) . . .Giles Amicus Brief, 2005

At the end of the LAST post, I have a segment from a well-known — if you track these things — “Giles Amicus Brief.”  I explained why posting it, and gave a sample with highlighting of sentences, and a few comments, as to how it goes with domestic violence.  

Well, now I’m pasting the whole dang thing in here.  I believe that those who are literate, and able to visually sort legal cites from common English sentences will get a heads-up on what the criminal sector is saying about the crime of domestic violence:  the laws, the District Attorney folk, and those who help prosecute.  The word “prosecute” applies to the criminal sector.  The word “mediate/reconcile/educate (etc.) belongs to the family law sector.  Get used to both of them!  (Some couples experiencing violence never even made it to the criminal prosecution point — I’m one of those, and it was a shame, and a factor of the many enablers and public inability to put a NAME to the CRIME.  Or to accept that it had happened.  We’re talking California, and we’re talking turn of this century — not turn of the LAST century.  Backlash, denial, residual misogyny, or suppressed misogyny just waiting to spring into action, I don’t know.  But it’s unfortunate for the children.  And everyone else.

This brief will, perhaps, provide a backdrop of wonder and amazement at the trouble the family law sector has in “explicating domestic violence in the context of custody” and holding conference about who hits whom more.  Meanwhile, officers responding to a call, I’d bet, bring their guns AND if they have them, bulletproof vests.  That’s an indicator, OK? Sure,  it was a quarrel, a dispute, but any officer is still going to go in armed and protected….

Moreover, some officers — like some PEOPLE —  are also privately batterers.  Put that in your pipe and smoke it, and hope whoever responds to the call, isn’t….

 

Moreover, I find it incredible that, given the amount of domestic violence that’s STILL prevalent, obviously (see headlines), the criminal people who are putting SO much efffort, and funding, into prosecutions (at least so I hear — I haven’t seen too much personally, though I hear it occurs.  Typically where one hears it occurred is after another headline — see other pages in my blog) — how can they possibly fail to realize what is going on in the family law system, which is closer to THIS:

 

 

(and after which you and yours may feel & look more like THIS than not…..)

(To protect the innocent, I have NO relationship to any of sources of the images, and only utilized Google Image Search to find them).

(I’m assuming readers would prefer NOT to have 1,000 of my words, when 3 images would get the job done just as well).

 

AN FYI on HOW IT CAN GO, PROSECUTING DV – 

For readers who have a high tolerance (or desire) to seek out the statements of the argument, and the ability to not be dissuaded by formatting of legal cites and extensive references, if that language is an unfamiliar one.  Go for the words you DO understand, and assemble the concepts.  There’s a lot of data in here. . . . 

(Excerpt from the end):


Arguably, some victims may refuse to assist in their batterers’ prosecutions due to factors that the batterer does not cause, including love and the hope that the batterer will change.  Linda Kelly, Domestic Violence Survivors: Surviving the Beatings Of 1996, 11 Geo. Immigr. L.J. 303, 308-309 (1997) TA \l “Linda Kelly, Domestic Violence Survivors: Surviving the Beatings Of 1996, 11 Geo. Immigr. L.J. 303, 308-309 (1997)” \s “Linda Kelly, Domestic Violence Survivors: Surviving tThe Beatings Of 1996, 11 Geo. EOImmigr. L.J. 303, 308-309 (1997)” \c 3 However, even in these circumstances, trial courts may determine that the batterer caused the victim’s unavailability by preying on the victim’s emotions and promising to change.  

 

{{Also it will discuss factors of initimdation and fears of reprisal, and whether or not the batterer caused these in intention to silence a witness or as a factor of what domestic violence simply is . . . . . The case, GILES, is where he was (I believe, but can’t affirm) protesting hearsay evidence that yes, he was the murderer — and his rights to confront his accuser were supposedly compromised, in that she was dead.  Talk about a fine point — but an important, Sixth Amendment one.  Yes, this is a vital issue, and this is how it sometimes plays out in the trial courts.

 

 Tom Lininger, an assistant professor at the University of Oregon School of Law, conducted a survey of more than sixty prosecutors’ offices in California, Washington, and Oregon regarding Crawford’s impact on domestic violence prosecutions.  The survey included responses from 23 counties in California (which collectively included eighty-eight percent of California’s population).  Several courts have recently cited Lininger’s domestic violence research findings, including the Ninth Circuit Court of AppealsSee United States v. Hall, 419 F.3d 980 (9th Cir. 2005) TA \s “United States v. Hall, No. 04-50193, 2005 U.S. App. LEXIS 17148, at *21 n.6419 F.3d 980, 988 n.6 (9th Cir.  Aug. 15, 2005)” .


“Crawford” will be explained in the Amicus…..

 

Why “Giles,” My friends?  

 

This came up when I searched “clear and present danger” of spousal batterers.  While the purpose of this Amicus Brief is to discuss the Crawford rule, as applied to a man accused of a DV murder who protested (using, I believe, that “Crawford rule” that his 6th amendment rights (to confront his accuser in court) ruled out the admissibility of statements from (either 911 calls, or prior statements), it’s KIND OF IRRELEVANT in that he had, allegedly, killed her.  They are saying, if he is allowed to call on this rule (and a narrow interpretation of it), that provides a profit from wrongdoing (a.k.a., case in point, femicide). . . . 

To  non-attorney on-lookers it may seem pretty fine-tuned argument, given a homicide happened.  But what about right to defense?

 

My purposes in pasting it here are a little different:

  •  Sample of legal argument (not a motion, but a legal reasoning process) in which almost every assertion is cited.  
  • The attorney for the groups filing (who are listed at the end), is Nancy K.D. Lemon, Esq., at UC Berkeley.  She is pre-emininent in DV law, and in training others in applying it, AND future attorneys.  So you are reading the work of a person very informed in the field of Domestic Violence.  
  • IT TALKS ABOUT THE ESSENCE OF DOMESTIC VIOLENCE, I BELIEVE TRUTHFULLY.. . . AS THE PATTERN, WITH ESCALATION, AS COMPREHENSIVE, AND WITH EVER-PRESENT POSSIBILITIES OF ESCALATING.
  • IT TALKS ABOUT THE PRIME ISSUE OF VICTIM / WITNESS INTIMIDATION.
  • IT ACKNOWLEDGES THIS IS A SERIOUS PROBLEM (couldn’t tell, again, from most family law proceedings….)
  • TO ME, IT HIGHLIGHTS THE DIFFERENCE BETWEEN THE TYPE OF REASONING IN THIS FIELD OF LAW (CRIMINAL) AND FAMILY LAW (a specialized — I say, bastardized — version of civil law).  

The dilemma of families stuck in the one system, yet dealing — systemically — with problems that fall clearly by evidence and definition within the crimnal — is serious.  They can be like flies in amber.  Their squeaks will not be heard in one venue, where if properly addressed (and that’s a big IF) in the other, someone would be in jail.  The public needs to understand this!  It’s a public problem affecting public bottom lines, and draining the one economy and putting the drained funds into the hands of those who run certain systems. . . . . 

 

For readers who can deal with a level of discomfort, if legal language is new to you, and go for the plain English language, if the “cites” are too burdensome, there is a lot of valuable information in this brief, filed in December 2005.  For those who can handle the cites also (unfortunately, because my source didn’t transmit the active links, it seems some of the fine-print cites show up in duplicate or triplicate — oh well, just look for the next complete English SENTENCE) — they have significance, quoting some of the major “players” (organizations, nonprofits, published works) in the DV field.  

As should be obvious, by now, to readers, I am speaking from the perspective of still dealing with the impact of years of DV upon my life as a single woman and mother, and in recent years, the added drama of becoming noncustodial in an egregiously illegal and trauma-producing manner.  And without further recourse to reverse the bad ruling.  This document explains SOME of why what may seem like the obvious thing to do, safety was a factor all round in doing it, as well as finances, as well as legal know-how.  

A previous, better-highlit version (of this 25 page brief!) was not saved last night, and so what you see is what you get.  You are on your own in this one, but I trust that the experience will help those who can navigate the rapids of a legal brief.  At the end, (if it’s new), consider yourself a little drenched, but let’s hope slightly different for the experience.

Also, for women or others in need of writing their own, it shows the level of detailed reasoning, and SUPPORTING EACH POINT, that should be involved when filing anything on your behalf.  Don’t let sloppy stuff go on the record.  

The word count in the brief (it says towards the bottom) is 7,000+ exempting certain cites.  The word count in this post, now, is 10,850.  Have a nice day!  Please COMMENT if this was helpful, or not — thanks.


 

 

 

 

Amicus Curiae Brief in Support of Respondent in People v. Giles

SUMMARY OF ARGUMENT 

 

The Rule of Forfeiture by Wrongdoing (“the Rule”) extinguishes a defendant’s Sixth Amendment confrontation right where the defendant procured the witness’s unavailability, regardless of the defendant’s intent.  

 

Crawford v. Washington does not require courts to exclude a victim’s relevant statements where the defendant himself has guaranteed that the victim cannot testify in court.  Crawford states that a defendant can forfeit his Sixth Amendment confrontation rights through his own wrongdoing.  A defendant will profit from his wrongdoing when, regardless of intent, the defendant procures a witness’s unavailability and the court suppresses the witness’s testimony as a result.  Should the court adopt the defendant’s flawed understanding of the Rule, abusers who have harmed or terrorized their victims to the point where they are no longer willing or able to testify will be acquitted much more often than previously.  Since neither the Sixth Amendment nor Crawford requires this result, this Court should not suppress the deceased victim’s statements in this case. 

The Rule applies equally where the defendant procured the victim’s unavailability by killing the victim or by instilling fear of reprisals.  Unavailability often results where, in absence of a direct threat, the batterer has abused the victim to the extent that the victim reasonably fears retaliation.  Batterers should be held responsible for causing the victim’s unavailability where a victim fails to assist the prosecution based on a reasonable fear of retaliation.  

Restricting the Rule to cases where the defendant intended to procure the victim’s unavailability would have a deleterious effect on domestic violence prosecutions.  Many batterers cause their victims’ unavailability without intending to silence the victim’s testimony at some future trial.  Rather, a desire to control the victim motivates a batterer’s abusive behavior.  Furthermore, a victim’s statements regarding prior abuse or threats are often the only means of establishing the batterer’s motive, identity, and propensity to abuse.  For example, since domestic violence homicide is often the result of an escalating series of battering incidents, the trier of fact must be able to hear evidence of prior abusive incidents in order to establish the defendant’s motive in killing the victim.  

The California Legislature has recognized the need to admit previous acts of abuse in domestic violence cases and California courts have traditionally admitted this evidence in the form of previous prosecutions, previous convictions, and eyewitness testimony.  However, many batterers successfully terrorize and sequester their victims so that the victims do not file charges and so that there are no eyewitnesses to abusive acts.  The defendant’s flawed understanding of the Rule would give batterers an incentive to further abuse and isolate their victims in order to prevent the justice system from intervening.  

 

In order to ensure the continued viability of domestic violence prosecutions and support the Legislature’s efforts to combat the domestic violence epidemic, judges must be allowed to determine that a batterer who causes a witness’s unavailability through murder or by instilling fear of reprisals has forfeited his right to confront the victim.  This Court should affirm the decision of the court of appeal.      

ARGUMENT

 

THE RULE OF FORFEITURE BY WRONGDOING APPLIES EVEN IF THE DEFENDANT DID NOT INTEND TO PREVENT THE VICTIM FROM TESTIFYING  

 

The Rule of Forfeiture is based on the equitable principle that the accused should not profit from his wrongdoing.  See Reynolds v. United States, 98 U.S. 145, 158-59 (1879) TA \l “See Reynolds v. United States, 98 U.S. 145 (1879)” \s “See Reynolds v. United States, 98 U.S. 145, 158-59 (1879)” \c 1  (If a witness is absent because of the accused’s wrongful procurement, “he cannot complain if competent evidence is admitted to supply the place of that which he has kept away”; “The [forfeiture] rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong.”); Crawford v. Washington, 541 U.S. 36, 62, 124 S. Ct. 1354, 1370 (2004) TA \l “Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004)” \s “Crawford v. Washington, 541 U.S. 36, 62, 124 S. Ct. 1354, 1370 (2004)” \c 1  (“[T]he rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds.”).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

A wrongdoer would profit from his wrongdoing whether or not he intended to procure the witness’s unavailability because, in either case, the accused’s wrongdoing prevents the victim from testifying at trial.    

The Rule applies where the wrongdoing consists of intimidation or other means to keep a witness from providing adverse testimony.  See generally Reynolds, 98 U.S. at 160 (admitting testimony of a witness from a prior trial because the defendant refused to reveal her location to a process server). See also State v. Wright, 701 N.W.2d 802, 814 (Minn. 2005) TA \l “State v. Wright, 701 N.W.2d 802 (Minn. 2005)” \s “State v. Wright, 701 N.W.2d 802, 814 (Minn., 2005)” \c 1  (“We agree with amici curiae that perpetrators of domestic violence frequently intimidate their victims with the goal of preventing those victims from testifying against them.  Thus, a forfeiture by wrongdoing analysis is particularly suitable for cases involving domestic violence.”).

 

However, a defendant would equally benefit from his wrongdoing if, after the batterer caused the victim’s unavailability, the court failed to admit the victim’s testimony  At least two courts have held that the Rule applies to a defendant who caused, without specifically intending to do so, the witness’s unavailability at trial.  The Kansas Supreme Court held that “[Where] the trial court determines as a threshold matter that that the reason the victim cannot testify at trial is that the accused murdered her [,] [the] accused should be deemed to have forfeited the confrontation right.”  State v. Meeks, 88 P.3d at 794.  The Eighth Circuit Court of Appeals has held that, in contravention of the Rule, a defendant would benefit from his own wrongdoing if a court excluded a victim’s testimony after the defendant procured the witness’s unavailability by killing her.  United States v. Emery, 186 F.3d 921 (8th Cir. 1999) TA \l “United States v. Emery, 186 F.3d 921 (8th Cir. 1999)” \s “United States v. Emery, 186 F.3d 921 (8th Cir. 1999)” \c 1

 

RESTRICTING THE RULE TO CASES WHERE THE DEFENDANT INTENDED TO PROCURE THE VICTIM’S UNAVAILABILITY WOULD HAVE A DELETERIOUS EFFECT ON DOMESTIC VIOLENCE PROSECUTIONS

Domestic Violence Assaults And Homicides Are Tragically Frequent 

 

For at least the past fifteen years, California law enforcement has annually received between 180,000 and 250,000 domestic violence calls for assistance.  California Attorney General’s Office, Domestic Violence-Related Calls for Assistance, 1986-2003 TA \ \c 3 , available at http://caag.state.ca.us/cjsc/publications/candd/cd03/tabs/57.pdf; see also  TA \l “Cal. Welf. & Inst. Code § 18290 (West 2005)”  (“There are hundreds of thousands of persons in this state who are regularly beaten.”); Patricia Tjaden & Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Intimate Partner Violence Against Women: Findings from the National Violence Against Women Survey 38 (U.S. Dep’t of Justice, Nat’l Inst. Of Justice No. 183781, 2000) TA \l “Patricia Tjaden & Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Intimate Partner Violence Against Women: Findings from the National Violence Against Women Survey 38 (U.S. Dep’t of Justice, Nat’l Inst. Of Justice No. 183781, 2000)” \s “Patricia Tjaden & Nancy Thoennes, Full Report of the Prevalence, Incidence, and Consequences of Intimate Partner Violence Against Women: Findings from the National Violence Against Women Survey 38 (U.S. Dep’t of Justice, Nat’l Inst. Of Justice No. (Nov. 2” \c 3  (indicating that about 1.5 million women and 834,700 men are raped and/or physically assaulted by an intimate partner each year), available at http://www.ncjrs.org/pdffiles1/nij/183781.pdf.  In 1998, California law enforcement agencies made 56,892 arrests in domestic violence cases.  Criminal Justice Statistics Center, Report on Arrests for Domestic Violence in California, 1998, Vol. 1, No. 3, at 4 (1999) TA \l “Criminal Justice Statistics Center, Report on Arrests for Domestic Violence in California, 1998, Vol. 1, No. 3 (1999)” \s “Criminal Justice Statistics Center, Report on Arrests for Domestic Violence in California, 1998, Criminal Justice Statistics Center Report Series, Vol.ume 1, No.umber 3, at 4 (1999)” \c 3 , available at http://caag.state.ca.us/cjsc/publications/misc/dv98.pdfFurthermore, the California Legislature has acknowledged that domestic violence is “the single most unreported crime in the state.” Cal. Welf. & Inst. Code § 18290 (West 2005) TA \s “Cal. Welf. & Inst. Code § 18290 (West 2005)” .    

Far too often, an escalating series of abusive incidents leads to homicideSee Cal. Welf. & Inst. Code § 18290 (West 2005) TA \s “Cal. Welf. & Inst. Code § 18290 (West 2005)”  (“[In many cases] acts of domestic violence lead to the death of one of the involved parties.”); People v. Linkenauger, 32 Cal. App. 4th 1603, 1606 (1995) TA \l “People v. Linkenauger, 32 Cal. App. 4th 1603 (1995)” \s “People v. Linkenauger, 32 Cal. App. 4th 1603,at 1606 (1995)” \c 1  (“We again confront a situation that, unfortunately, is becoming all too common, domestic violence culminating in murder.”).  Nationwide, an average of three women are murdered by their husbands or boyfriends every day.  Sen. Joseph R. Biden, Jr., Subcommittee on Crime, Correction & Victims’ Rights, Ten Years of Extraordinary Progress: The Violence Against Women Act 30 (2004) TA \l “Sen. Joseph R. Biden, Jr., Subcommittee on Crime, Correction & Victims’ Rights, Ten Years of Extraordinary Progress: The Violence Against Women Act (2004)” \s “Sen. Joseph R. Biden, Jr., Subcommittee on Crime, Correction & Victims’ Rights, Ten Years of Extraordinary Progress: The Violence Against Women Act 30 (2004)” \c 3 , available at http://biden.senate.gov/documents/VAWA_Report.pdf.  In California, the Criminal Justice Statistics Center reported that there were 187 domestic violence homicides in 2003.  Criminal Justice Statistics Center, Review of Domestic Violence Statistics 1993-2003 TA \l “Criminal Justice Statistics Center, Review of Domestic Violence Statistics 1993-2003” \s “Criminal Justice Statistics Center, Review of Domestic Violence Statistics 1993-2003” \c 3 ,   HYPERLINK http://caag.state.ca.us/cjsc/publications/misc/dvsr/rpt.pdf.         

 

 

 

 

The Nature Of Domestic Violence Makes It Likely That A Batterer Will Cause A Victim Witness’s Unavailability Through His Behavior That, While Not Necessarily Intended To Silence The Victim’s Testimony At Trial, Instills A Reasonable Fear Of Reprisal In The Victim 

 

Domestic violence victims frequently fail to assist in their batterer’s prosecutions.  This decision is often based on the victim’s fear of reprisal, including fear of violent and severe non-violent acts.  These fears are reasonable even in absence of a direct threat because they are based on the witness’s intimate knowledge of the batterer’s behavior.  Batterers may therefore cause a witness’s unavailability either by directly threatening the victim or by instilling fears of reprisal.  In response to this common evidentiary problem in domestic violence cases, trial courts must be allowed to determine whether the batterer caused the victim’s unavailability by instilling a fear of violent or severe non-violent retaliation, thereby forfeiting the defendant’s right to confront the victim at trial.

 

This Court has recognized that domestic violence victims are more prone than other crime victims to refuse to cooperate after initially providing information to law enforcement.  See  TA \l “People v. Brown, 33 Cal. 4th 892 (2004)” \s “People v. Brown, 33 Cal. 4th 892, 907 (2004)” \c 1 People v. Brown, 33 Cal. 4th 892, 907 (2004) TA \s “People v. Brown, 33 Cal. 4th 892, 907 (2004)”  (citing expert witness testimony regarding the “tendency of domestic violence victims to recant previous allegations of abuse as part of the particular behavior patterns commonly observed in abusive relationships”).  In fact, a recent study indicates that between eighty to ninety percent of domestic violence victims recant their accusations or refuse to cooperate with prosecutors.  Davis v. State, 169 S.W.3d 660, 671 (Tex. App. 2005) TA \l “Davis v. State, 169 S.W.3d 660 (Tex. App. 2005)” \s “Davis v. State, 169 S.W.3d 660, 671 (Tex. App. 2005)” \c 1  (citing Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 709 n.76 (2003) TA \l “Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687 (2003)” \s “Tom Lininger, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 709 n.76 (2003)” \c 3 ). 

Domestic violence victims may fail to assist in their batterers’ prosecutions because their batterers have specifically threatened them with reprisal.  Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness Testimony of The Common Experiences of Battered Women, 2 S. Cal. Rev. L. & Women’s Stud. 219, 248 (1992) TA \l “Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness Testimony of The Common Experiences of Battered Women, 2 S. Cal. Rev. L. & Women’s Stud. 219 (1992)” \s “Alana Bowman, A Matter of Justice: Overcoming Juror Bias in Prosecutions of Batterers Through Expert Witness Testimony of The Common Experiences of Battered Women, 2 S. Cal. Rev. L. & Women’s Stud. 219, 248 (1992)” \c 3 .  According to a recent study, batterers threaten retaliatory violence in nearly half of all prosecutions.  Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Criminal Justice Response 183 (3d ed. 2003) TA \l “Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Criminal Justice Response (3d ed. 2003)” \s “Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Criminal Justice Response 183 (3d ed. 2003)” \c 3 ; see also Cal. Pen. Code § 136.2 (West 2005) TA \l “Cal. Pen. Code§ 136.2 (West 2005)” \s “Cal. Pen. Code (2005) § 136.2 (West 2005)” \c 2  (directing courts to identify domestic violence cases so that they may issue various orders on their own motions, including protective orders, that will keep defendants from intimidating or dissuading their victims). 

However, based on their intimate knowledge of the batterer’s behavior, many victims reasonably anticipate retaliation even without a direct threat and consequently do not assist the prosecutionSee United States v. Hall, 419 F.3d 980, 988 n.6 (9th Cir. 2005) TA \l “United States v. Hall, 419 F.3d 980, (9th Cir. 2005)” \s “United States v. Hall, No. 04-50193, 2005 U.S. App. LEXIS 17148, at *21 n.6419 F.3d 980, 988 n.6 (9th Cir.  Aug. 15, 2005)” \c 1  (“The difficulty of securing the testimony of domestic violence victims . . . against their batterers is well recognized.”) (citing Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 769 (2005) TA \l “Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747 (2005)” \s “Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 769 (2005)” \c 3 ); Buzawa & Buzawa, supra, at 183 TA \s “Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Criminal Justice Response 183 (3d ed. 2003)”  (noting that despite increased societal attention to domestic violence, the rate of prosecution is still limited by victims’ inability to cooperate with prosecution).      

The Ninth Circuit recently acknowledged that the source of domestic violence is “power and control [that] pervades the entire relationship” so that “the battered woman’s fear, vigilance, or perception that she has few options may persist…even when the abusive partner appears to be peaceful and calm.”  Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003) TA \l “Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003)” \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)” \c 1  (citing Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome,  HYPERLINK “http://www.lexis.com/research/buttonTFLink 21 Hofstra L. Rev. 1191, 1208 (1993) TA \l “Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191 (1993)” \s “Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191, 1208 (1993)” \c 3 ).  This Court also described this pattern in People v. Brown, noting that “even if there has been no other episode of violence, the victim may change her mind about prosecuting the abuser and may recant her previous statements.” 33 Cal. 4th at 907 TA \s “People v. Brown, 33 Cal. 4th 892, 907 (2004)” .  

 

Furthermore, the California Legislature has defined domestic violence to include violent and various non-violent acts, supporting the proposition that victims may reasonably fear many forms of reprisal.  Specifically, the California Evidence Code states that domestic violence is “physical or sexual abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment that results in physical harm, pain, or mental suffering, the deprivation of care by a caregiver, or other deprivation by a custodian or provider of goods or services that are necessary to avoid physical harm or mental suffering.”  See Cal. Evid. Code § 1109 (West 2005) TA \l “Cal. Evid. Code § 1109 (West 2005)” \s “Cal. Evid. Code § 1109 (West 2005)” \c 2  (following the meaning of domestic violence set forth in  TA \l “Cal. Pen. Code § 13700 (West 2005) \s “Cal. Pen. Code § 13700 (West 2005)” \c 2 Cal. Pen. Code § 13700 (West 2005) TA \s “Cal. Pen. Code § 13700 (West 2005)” ). Additionally, the California Family Code defines abuse as causing bodily injury, sexually abusing a person, or placing a person in “reasonable apprehension of serious bodily harm to that person or to another” and, further, it provides that a victim may obtain a restraining order to protect against the batterer’s non-violent reprisals, such as “stalking, threatening,…harassing, telephoning,…[or] destroying personal property.” Cal. Fam. Code §§ 6203, 6320 (West 2005) TA \l “Cal. Fam. Code § 6203 (West 2005)” \s “Cal. Fam. Code §§ 6203, 6320 (West 2005)” \c 2 .     

 

Most commonly, a victim reasonably anticipates a physical assault, including sexual assault or even death, if the victim attempts to end a battering relationship and assist in the batterer’s prosecution.  In fact, victims are at the highest risk of severe abuse or death when they challenge the batterer’s control in their attempts to leave.  Hernandez, 345 F.3d at 837 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)” ; see also Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature of Private Violence 59, 79 (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994) TA \l “Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature of Private Violence (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994)” \s “Martha R. Mahoney, Victimization or Oppression? Women’s Lives, Violence, and Agency, in The Public Nature Of Private Violence 59, 79 (Martha Albertson Fineman & Roxanne Mykitiuk eds., 1994)” \c 3  (describing the phenomenon of “separation assault” in domestic violence relationships and finding that the majority of domestic violence homicides occur upon separation).  

 

Victims may also reasonably fear serious, non-violent reprisals.  For example, a victim may fear that the batterer will abduct or injure the couple’s children.  See Town of Castle Rock v. Gonzales, 125 S. Ct. 2796, 2800-2802 (2005) TA \l “See Town of Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005)” \s “See TownCity of Castle Rock v. Gonzalesz, 125 S. Ct. 2796, 2800-2802 (2005)” \c 1  (describing incident in which batterer violated his wife’s restraining order against him, abducted his three children, and murdered them.); see also Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50(2) Juv. & Fam. Ct. J. 13, 13-21 (1999) TA \l “Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50(2) Juv. & Fam. Ct. J. 13 (1999)” \s “Maureen Sheeran & Scott Hampton, Supervised Visitation in Cases of Domestic Violence, 50(2) Juv.enile &and Fam.ily Ct. J.ournal 13, 13-21 (1999)” \c 3  (citing research that establishes a definitive link between parental child abduction and domestic violence).  In fact, twenty-five percent of batterers directly threaten to kidnap the couple’s children if the victim pursues legal action. Buzawa & Buzawa, supra, at 183.  

 

Additionally, because many victims depend upon the batterer for financial support, they may reasonably fear financial ruin or homelessness if they assist the prosecution.  A batterer’s control of the victim’s access to money and employment is common in domestic violence situations.  Diane R. Follingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. Fam. Violence 107, 109 (1990) TA \l “Diane R. Follingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. Fam. Violence 107 (1990)” \s “Diane R. Follingstad et al., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. Fam. Violence 107, 109 (1990)” \c 3 A victim may reasonably fear that, without the batterer’s financial support, she and her children are at risk of becoming homeless.  U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 27-City Survey (2004) TA \l “U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 27-City Survey (2004) \s “U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America’s Cities: A 27-City Survey (, December 2004)” \c 3  (citing domestic violence as the primary cause of homelessness in forty-four percent of the cities surveyed).  

 

Furthermore, many undocumented abused immigrants are at a heightened risk of financial ruin if they leave their batterers because they may not be able to obtain employment or public assistance.  Leslye E. Orloff et al., With  HYPERLINK “http://web2.westlaw.com/find/default.wl?DB=1137&SerialNum=0105667923&FindType=Y&ReferencePositionType=S&ReferencePosition=317&AP=&mt=California&fn=_top&sv=Split&vr=2.0&rs=WLW5.10&#8221; \t “_top” No Place to Turn: Improving Advocacy for Battered Immigrant Women, 29 Fam. L. Q. 313, 317-19, 324 (1995) TA \l “Leslye E. Orloff et al., With No Place to Turn: Improving Advocacy for Battered Immigrant Women, 29 Fam. L. Q. 313 (1995)” \s “Leslye EL. Orloff et al., With No Place to Turn: Improving Advocacy for Battered Immigrant Women, 29 Fam. L. Q. 313, 317-19, 324 (1995)” \c 3  (“The battered immigrant spouse rarely obtains the cooperation of her husband in obtaining a work visa … In addition, virtually all public assistance programs bar undocumented immigrants from receiving benefits and limit the eligibility of legal residents.”).  

Undocumented immigrant victims may also fear that their batterers will prevent them from obtaining legal status. Domestic Abuse Intervention Project, Power and Control Wheel, in Domestic Violence Law 38 (Nancy K.D. Lemon ed., 2005) TA \l Domestic Abuse Intervention Project, Power and Control Wheel, in Domestic Violence Law (Nancy K.D. Lemon ed., 2005) \s “Domestic Abuse Intervention Project, Power and Control Wheel, in Domestic Violence Law 38 (Nancy K.D. Lemon ed., 2005)” \c 3  (noting that immigrant women may stay in abusive relationships due to the threat or fear of being deported).  For example, if an immigrant victim is deported, she may be separated from her children indefinitely, especially if the children are United States citizens.  Orloff et al., supra, at 324.  The victim may return to poverty, famine, a health-related epidemic, civil war, political persecution, or a country that does not protect her from domestic violence.  Karyl Alice Davis, Unlocking the Door by Giving her the Key: A Comment on the Adequacy of the U-Visa as a Remedy, 56 Ala. L. Rev. 557, 571 (2004) TA \l “Karyl Alice Davis, Unlocking the Door by Giving her the Key: A Comment on the Adequacy of the U-Visa as a Remedy, 56 Ala. L. Rev. 557 (2004)” \s “Karyl Alice Davis, Unlocking the Door by Giving her the Key: A Comment on the Adequacy of the U-Visa as a Remedy, 56 Ala. L. Rev. 557, 571 (Winter, 2004)” \c 3 .  Additionally, the victim may no longer be able to provide financial assistance to her family in her home country, or her friends and family may ostracize her if she seeks to separate from the batterer.  Id.  

 

More generally, a victim of domestic violence may fear reprisals even when the victim seems to withdraw cooperation with the prosecution out of a desire to reconcile with the batterer.  Many batterers provide “loving gestures,” such as “expensive gifts, intense displays of emotion, sending flowers after an assault, making romantic promises, tearfully promising that it will never happen again,” that in fact threaten the victim with abuse if she does not respond.  See Hernandez, 345 F.3d at 837 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)” .  The Ninth Circuit recently stated, “[P]hysical abuse, threats of harm, and isolation are interwoven with seemingly loving gestures. … Amnesty International [] describes such ‘occasional indulgences’ as a method of coercion used in torture…The message is always there that if the victim does not respond[,] the perpetrator will escalate [the abuse].”  Id. (citing Leslye E. Orloff, Manual on Intra-family Cases for the D.C. Superior Court Judges 15 (1993) TA \l “Leslye E. Orloff, Manual on Intra-family Cases for the D.C. Superior Court Judges (1993)” \s “Leslye E. Orloff, Manual on Intra-family Cases for the D.C. Superior Court Judges 15 (1993)” \c 3 ).  Moreover, the Ninth Circuit has recognized that a victim’s decision not to testify against the batterer is not typically the result of passivity or submission but is rather an attempt to stop the violence, based on experiences where cooperation with the batterer proved to be a successful strategy.  See Hernandez, 345 F.3d at 838 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)” .  

 

.Finally, the batterer’s intimate knowledge of the victim greatly and reasonably enhances the victim’s fear of reprisal.  Unlike most other perpetrators of violent crime, the domestic violence defendant typically has lived with the victim, thereby becoming familiar with the victim’s thoughts, behaviors, habits, and daily routine  California Center for Judicial Education and Research, California Judges Benchbook, Domestic Violence Cases in Criminal Court 23 (2000) TA \l “California Center for Judicial Education and Research, California Judges Benchbook, Domestic Violence Cases in Criminal Court (2000)” \s “California Center for Judicial Education and Research, California Judges Benchbook, Domestic Violence Cases in Criminal Court 23 (2000)” \c 3 ; Brown, 33 Cal. 4th at 899 TA \s “People v. Brown, 33 Cal. 4th 892, 907 (2004)”  (“A fundamental difference between family violence and other forms of violence (such as street violence) is that family violence occurs within ongoing relationships.”) (citing Am. Psychological Assn., Violence and the Family 15 (1997) TA \l “Am. Psychological Assn., Violence and the Family 15 (1997)” \s “Am. Psychological Assn., Violence and the Family 15 (1997)” \c 3 ).   

 

 

The Victim’s Prior Statements Of Abuse Are Necessary  Evidence In Murder Cases Because They Are Often The Only Evidence Of Previous Domestic Violence Acts, Which Are Relevant And Necessary To Establish The Defendant’s Motive, Identity, And Propensity To Abuse 

 

California courts and the California Legislature have recognized the need to admit previous domestic violence acts in murder cases on issues of the defendant’s motive, identity, and propensity to abuse.  Previous acts are relevant to domestic violence murder cases because homicide typically occurs within the context of the cycle of violence.  California courts have previously admitted evidence of prior domestic violence acts in the form of the defendant’s prior criminal record or eyewitness testimony.  However, many batterers do not have prior criminal records and, due to the victim’s isolation by the batterer, there are often no other witnesses to domestic violence actsTherefore, a victim’s statements are necessary to establish the defendant’s motive, identity, and propensity to abuse because they are often the only evidence of previous domestic violence acts. 

 

{{My comment:  Given THIS, then how is it when a case lands in the family law venue, the victim (now often called a partner in a high-conflict marriage, and equally held responsible for any violence or stress that comes from the situation)’s very accounts are dismissed or minimized based on attribution of her motives — she just wants to gain control, and is not telling the truth.  This assessment then becomes the focus, rather than the facts.  What I am pointing out (saying) is that, the family ideology, principles, methodology and framework is to DENY DOMESTIC VIOLENCE WHEN IT HAS OCCURRED and to DECRIMINALIZE that behavior, and Re-CRIMINALIZE the parent subject to it.  Although DV is (see top paragraph above) indeed relevant to both parenting ability and (LEGALLY speaking) custody — I have sat and watched a judge expressed boredom when I summarized the DV history (as apparently records of it were considered irrelevant by mediator and judge alike), in the context, there were several MORE, RECENT incidents of it which had brought us before the court.  It’s an entirely different mindset, and intentionally so.  This cannot be and is no accident, and it is at this point a serious social problem for our country, and others.}}

 

A murder defendant’s abusive history is relevant to determine his motive, identity, and propensity to abuse because domestic violence homicide is often the result of an escalating series of battering incidents.  See Assem. Comm. Rep. on Public Safety S.B. 1876, at 3-4 (June 25, 1996) TA \l “Assem. Comm. Rep. on Public Safety S.B. 1876 (June 25, 1996)” \s “Assem. Comm. Rep. on Public Safety S.B. 1876, atpp 3-4 (June 25, 1996)” \c 3 , available at  HYPERLINK “http://www.leginfo.ca.gov/pub/95-96/bill/sen/sb_1851-1900/sb_1876_cfa_960624_094659_asm_comm.html&#8221; http://www.leginfo.ca.gov/pub/95-96/bill/sen/sb_1851-1900/sb_1876_cfa_960624_094659_asm_comm.html [hereinafter Assem. Comm. Rep.] (“[B]attering episode[s]…usually escalate[] in frequency and severity.”).

 

This buildup of multiple violent acts stems from the very nature of domestic violence, which frequently manifests itself as a cycle of violence that escalates over time.  The Ninth Circuit recognized the cycle as comprising “a tension building phase, followed by an acute battering of the victim, and finally by a contrite phase where the batterer’s use of promises and gifts increases the battered woman’s hope that the violence has occurred for the last time.”  Hernandez, 345 F.3d at 836 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)”  TA \l “Hernandez, 345 F.3d at 836” \s “Hernandez, v. Ashcroft, 345 F.3d at 824, 836” \c 3  (quoting Dutton, supra, at 1208). 

 

{{Comment:  This phrase “increases the battered woman’s hope” is a “mind-reading” and likely came from someone who has not experience DV.  DV is a survival situation from the moment it begins, and the ffocus of very much often on the PRESENT, with short-term future — the focus is not having the next incident.  To state that we do indeed “hope” that it was the last incident is demeaning to women, and minimizes what we do to stay alive and keep our children alive in such situations, and hopefully injury-free.  Given that separation and independence-seeking provokes increasing levels of restraint, to accuse us, living with this, of being in as much denial as the community often is – — well, NO.  Perhaps sometimes, at a level, facing to fully face the situation does enter into emotional survival – – because, I believe that there are indeed maximum levels of fear which a person can have, and still function calmly and practically in situations. . . . . .      The batterer’s use of promises and gifts is part of the routine, and is maybe INTENDED to increase our hope – – OR possibly to defray / deter reporting and possible consequences.  Maybe it’s to allay his own conscience — who knows?  So let’s cool it on the mind-reading.. and attributions!.}}

 

 

This Court also acknowledged, “Most abusive relationships begin with a struggle for power and control between the abuser and the victim that later escalates to physical abuse. … When the victim tries to leave or to assert control over the situation, the abuser may turn to violence as an attempt to maintain control.”  Brown, 33 Cal. 4th at 907 TA \s “People v. Brown, 33 Cal. 4th 892, 907 (2004)”  (citing expert witness testimony).  Each violent incident is therefore part of a larger pattern of power, control, and physical abuse rather than a discrete act removed from the dynamics and history of the relationship.  See Hernandez, 345 F.3d at 836-37 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)”  (“‘[A]busive behavior does not occur as a series of discrete events,’ but rather pervades the entire relationship.”) (quoting Dutton, supra, at 1208); Assem. Comm. Rep. at 3-4 TA \s “Assem. Comm. Rep. on Public Safety S.B. 1876, atpp 3-4 (June 25, 1996)”  (“[A]ny one battering episode is part of a larger scheme of dominance and control.”).  

 The California Legislature has determined that the reasons favoring the admission of uncharged criminal domestic violence incidents outweigh the reasons favoring the exclusion such evidence.  See Johnson, 77 Cal. App. 4th at 420 (discussing the legislative history of Cal. Evid. Code § 1109 and Assem. Com. Rep. p 5).  See also Assem. Com. Rep. p 5 (“Since criminal prosecution is one of the few factors that may interrupt the escalating pattern of domestic violence, we must be willing to look at that pattern during the criminal prosecution, or we will miss the opportunity to address this problem at all.”)

 

{{PROBLEM:  This brief accepts, and Cal. Law also does, that criminal prosecution is one of the “few factors” that “may” interrupt the escalating pattern, then answer this question:  And I believe that at a gut level, spouses/partners who have been battered DO “get” this, how come when pregnancy and birth has occurred — or common property — in family law arena, the whole dang court doesn’t “GET” it?  Are those experts dumber than the average person, or the criminal sector?  Or is there a reason family law as a speciality exists, with it separation from the civil & Evidence codes in general, and stricter standards?  And could PART of that purpose include to reframe the conversation around criminal behavior within the family unit, or separated family unit?}}

 

 

Prior domestic violence incidents show the defendant’s propensity to commit domestic violence crimes.  The legislative history of California Evidence Code Section 1109 recognizes, “The propensity inference is particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases.”  Assem. Comm. Rep. at 3-4 TA \s “Assem. Comm. Rep. on Public Safety S.B. 1876, atpp 3-4 (June 25, 1996)” ; See also People v. Hoover, 77 Cal. App. 4th 1020, 1024 (2000) TA \l “People v. Hoover, 77 Cal. App. 4th 1020 (2000)” \s “People v. Hoover, 77 Cal. App. 4th 1020, 1024 (2000)” \c 1  (upholding the constitutionality of Cal. Evid. Code § 1109).  Further, the Legislature has recognized, “Without the propensity inference, the escalating nature of domestic violence is …masked.  If we fail to address the very essence of domestic violence, we will continue to see cases where perpetrators of this violence will beat their intimate partners, even kill them, and go on to beat or kill the next intimate partner.” Assem. Comm. Rep at 3-4 TA \s “Assem. Comm. Rep. on Public Safety S.B. 1876, atpp 3-4 (June 25, 1996)” .  In a recent murder prosecution, a California court admitted the testimony of several witnesses as evidence of prior, uncharged domestic violence offenses and concluded “with substantial assurance that defendant’s propensity to commit crimes of domestic violence [and to murder his wife was] more likely than not to flow from the proved prior acts of domestic violence.”  People v. Pescador, 119 Cal. App. 4th 252, 260 (2004) TA \l “People v. Pescador, 119 Cal. App. 4th 252 (2004)” \s “People v. Pescador, 119 Cal. App. 4th 252, 260 (2004)” \c 1  (internal citations omitted).

 

 

{{HIGHLIGHT, READ, COMMENT AS APPROPRIATE — I gave a few samples above}}

 

Additionally, this Court has held that trial courts may admit eyewitness testimony of domestic violence to establish the defendant’s motive and identity in a murder trial.  “[E]vidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted and is competent to show the motive and state of mind of the defendant.” People v. Cartier, 54 Cal. 2d 300, 311 (1960) TA \l “People v. Cartier, 54 Cal. 2d 300 (1960” \s “People v. Cartier, 54 Cal. 2d 300, 311 (Cal. 1960))” \c 1 .  Likewise, on the issue of identity the court held, “Evidence of motive may . . . solve a doubt . . . as to the identity of the slayer . . .[and] is admissible against a defendant, however discreditably it may reflect on him, and even where it may show him guilty of other crimes.”  People v. Weston, 169 Cal. 393, 396 (1915) TA \l “People v. Weston, 169 Cal. 393 (1915)” \s “People v. Weston, 169 Cal. 393, 396 (Cal. 1915)” \c 1 .  More recently, lower courts have followed this Court’s holdings.  Linkenauger, 32 Cal. App. 4th at 1611 TA \s “People v. Linkenauger, 32 Cal. App. 4th 1603,at 1606 (1995)”  (citing Weston, 169 Cal. at 396 TA \s “People v. Weston, 169 Cal. 393, 396 (Cal. 1915)” , the court held that evidence of eyewitness testimony of prior abuse and threats was properly admitted in order to establish the defendant’s motive and identity HYPERLINK “http://www.lexis.com/research/buttonTFLink?_m=9b5fdc8e6cf0f444d98b1cf7f925c742&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b32%20Cal.%20App.%204th%201603%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=24&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b169%20Cal.%20393%2cat%20396%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlb-zSkAA&_md5=4f5ee7cbf41130c250e7943c5ff18f6b&#8221; \t “_parent” );  see also Hoover, 77 Cal. App. 4th at 1026 TA \s “People v. Hoover, 77 Cal. App. 4th 1020, 1024 (2000)”   (“Where a defendant is charged with a violent crime and has or had a previous relationship with a victim, prior assaults upon the same victim, when offered on disputed issues, e.g., identity, intent, motive, etcetera, are admissible …”) (citing People v. Zack, 184 Cal. App. 3d 409, 415 (1986) TA \l “People v. Zack, 184 Cal. App. 3d 409 (1986)” \s “People v. Zack, 184 Cal. App. 3d 409, 415 (1986)” \c 1 ).  

These rulings are consistent with California Evidence Code Section 1109, permitting “evidence of a defendant’s other acts of domestic violence,” and Section 1101 TA \l “Cal. Evid. Code § 1101 (West 2005)” \s “§ 1101” \c 2 , emphasizing that “nothing…prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, . . . intent, . . . identity, . . .)”.  See Cal. Evid. Code §§ 1109, 1101 (West 2005) TA \l “Cal. Evid. Code § (West 2005)” \s “Cal. Evid. Code § 1109, § 1109, 1101 (West 2005)” \c 2 .    

However, despite California’s judicial and legislative stance that previous domestic violence acts are relevant and necessary in domestic violence murder cases, prosecutors often will be unable to prove prior acts if courts restrict this evidence to the defendant’s prior criminal record or eyewitness testimony from someone other than the victim.  Instead, a victim’s statements are often the only available evidence to establish prior domestic violence acts and are therefore essential to domestic violence murder cases.  

Most deceased victims file domestic violence reports before their batterers kill them, providing numerous statements to police regarding the batterer’s abusive behavior.  See Buzawa & Buzawa TA \s “Eve S. Buzawa & Carl G. Buzawa, Domestic Violence: The Criminal Justice Response 183 (3d ed. 2003)” , supra, at 88 (citing study in which eighty-five percent of domestic violence homicide victims had reported a separate domestic violence incident to police at least once before the incident leading to their deaths, and fifty percent of domestic violence homicide victims had called police five or more times).  However, as discussed supra, many victims later recant or fail to even appear at court due to fear of reprisals.    

Additionally, unlike many other crimes, there are often no eyewitnesses to the abuse because the batterer socially and physically isolates the victim from contact outside the home.  This Court has noted, “[M]any battered women remain in the relationship because of . . . social isolation.”  People v. Humphrey, 13 Cal. 4th 1073, 1078 (1996) TA \l “People v. Humphrey, 13 Cal. 4th 1073, 1078 (1996)” \s “People v. People v. Humphrey, 13 Cal. 4th 1073, 1073, 1078 (1996)” \c 1 .  The Ninth Circuit recently reviewed a case involving physical isolation, where a victim’s spouse locked her in the home and refused to allow medical treatment.  Hernandez, 345 F.3d at 830 TA \s “Hernandez v. Ashcroft, 345 F.3d 824, 837 (9th Cir. 2003)” .  Furthermore, domestic violence incidents usually take place in the privacy of the home. People v. Gutierrez, 171 Cal. App. 3d 944, 949 (1985) TA \l “People v. Gutierrez, 171 Cal. App. 3d 44 (1985)” \s “People v. Gutierrez, 171 Cal. App. 3d at 944, 949 (1985)” \c 1  (citing  HYPERLINK “http://www.lexis.com/research/buttonTFLink?_m=614717a118cadce688a9ecf2401cc1d7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b171%20Cal.%20App.%203d%20944%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=28&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b53%20Cal.%20App.%203d%20786%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzz-zSkAB&_md5=4f5d57fe8d06a0095ed3dc11f0ad5a70&#8221; \t “_parent” People v. Cameron, 53 Cal.App.3d 786, 792 (1975) TA \l “People v. Cameron, 53 Cal.App.3d 786 (1975)” \s “People v. Cameron, 53 Cal.App.3d 786, 792 (1975)” \c 1 ).  Batterers often isolate their victims by controlling when they leave the house, where they go upon leaving, to whom they speak, and their daily activities.  Mary Ann Dutton & Catherine L. Waltz, Domestic Violence: Understanding Why It Happens and How to Recognize It, Domestic Violence Law 66, 68 (Nancy K.D. Lemon ed., 2001) TA \l “Mary Ann Dutton & Catherine L. Waltz, Domestic Violence: Understanding Why It Happens and How to Recognize It, in Domestic Violence Law 66,(Nancy K.D. Lemon ed., 2001)” \s “Mary Ann Dutton & Catherine L. Waltz, Domestic Violence:  Understanding Why It Happens and How to Recognize It, in Domestic Violence Law 66, 68 (Nancy K.D. Lemon ed., 2001)” \c 3

  This isolation impacts virtually every form of evidence a prosecutor would typically seek to introduce at trial.  Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L. & Feminism 359, 370-72 (1996) TA \l “Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L. & Feminism 359, 370(1996)” \s “Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L. & Feminism 359, 370-72 (1996)” \c 3 .  For example, because there are often no eyewitnesses to an incident of domestic violence, there will likely be no 911 calls from parties other than the victim.  Additionally, because many batterers isolate their victims from friends and family members, these individuals may be unaware of any domestic violence until the batterer is formally charged. See Janice A. Drye, The Silent Victims of Domestic Violence: Children Forgotten by the Judicial System, 34 Gonz. L. Rev. 229, 239 (1998/1999) TA \l “Janice A. Drye, The Silent Victims of Domestic Violence: Children Forgotten by the Judicial System, 34 Gonz. L. Rev. 229 (1998/1999)” \s “Janice A. Drye, The Silent Victims of Domestic Violence: Children Forgotten by the Judicial System, 34 Gonz. L. Rev. 229, 239 (1998/1999)” \c 3 ; Cris M. Sullivan, The Provision of Advocacy Services to Women Leaving Abusive Partners:  An Exploratory Study, 6 J. Interpersonal Violence 41, 43 (1991) TA \l “Cris M. Sullivan, The Provision of Advocacy Services to Women Leaving Abusive Partners:  An Exploratory Study, 6 J. Interpersonal Violence 41, (1991)” \s “Cris M. Sullivan, The Provision of Advocacy Services to Women Leaving Abusive Partners:  An Exploratory Study, 6 J. Interpersonal Violence 41, 43 (1991)” \c 3 .  As a result, friends and family members are often unable to testify to any history of domestic violence, leaving no evidence of the past abuse other than an unavailable victim’s statements.  

 An Intent-Based Application Of The Rule Will Significantly Diminish The Number Of Domestic Violence Prosecutions, Undermining Prosecution Efforts And Exacerbating The California Domestic Violence Crisis 

 

The California Legislature has established that prosecutions are necessary to reduce domestic violence incidents and has made great efforts to assist these prosecutions.  An Assembly Committee Report stated, “[C]riminal prosecution is one of the few factors that may interrupt the escalating pattern of domestic violence.”  See Assem. Comm. Rep. at 5 TA \s “Assem. Comm. Rep. on Public Safety S.B. 1876, atpp 3-4 (June 25, 1996)” .  Further, the Legislature has declared, “[Since] spousal abusers present a clear and present danger to the mental and physical well-being of the citizens of the State of California,…[we will] support increased efforts by district attorneys’ and city attorneys’ offices to prosecute spousal abusers through organizational and operational techniques.”  Cal. Pen. Code § 273.8 (West  2005) TA \l “Cal. Pen. Code § 273.8 (West  2005)” \s “Cal. Pen. Code § 273.8 (West  2005)” \c 2 ; see also Cal. Pen. Code § 273.81 (West  2005) TA \l “Cal. Pen. Code § 273.81 (West  2005)” \s “Cal. Pen. Code § 273.81 (West  2005)” \c 2  (establishing Spousal Abuser Prosecution Program within the Department of Justice that provides financial and technical assistance for district attorneys’ and city attorneys’ offices and promotes vertical prosecution in order to convict spousal abusers).

In order to address the domestic violence epidemic, the California Legislature has passed a host of laws intended to increase domestic violence arrests, prosecutions, and convictions.  See, e.g., Cal. Pen. Code § 13700 (West  2005) TA \s “Cal. Pen. Code § 13700 (West 2005)”  TA \l “Cal. Pen. Code § 13700 (West  2005)” \s “Cal. Pen. Code § 13700 (West  2005)” \c 1 .  For example, these laws require arrests of persons who violate restraining orders (Cal. Pen. Code § 836(c) (West 2005) TA \l “Cal. Pen. Code § 836(c) (West 2005)” \s “Cal. Pen. Code § 836(c) (West 2005)” \c 2 ); encourage arrests where there is probable cause that a person committed a domestic violence offense (Cal. Pen. Code § 13701(b) (West 2005) TA \l “Cal. Pen. Code § 13701(b) (West 2005)” \s “Cal. Pen. Code § 13701(b) (West 2005)” \c 2 ); require that suspects arrested for certain domestic violence offenses appear before a magistrate rather than be cited and released (Cal. Pen. Code § 853.6(a) (West 2005) TA \l “Cal. Pen. Code § 853.6(a) (West 2005)” \s “Cal. Pen. Code § 853.6(a) (West 2005)” \c 2 ); and encourage prosecutors to seek the most severe authorized sentence for a person convicted of a domestic violence offense (Cal. Pen. Code § 273.84(b) (West 2005) TA \l “Cal. Pen. Code § 273.84(b) (West 2005)” \s “Cal. Pen. Code § 273.84(b) (West 2005)” \c 2 ).  See generally California Alliance Against Domestic Violence, California Laws Relating to Domestic Violence (2005) TA \l “California Alliance Against Domestic Violence, California Laws Relating to Domestic Violence (2005)” \s “California Alliance Against Domestic Violence, California Laws Relating to Domestic Violence (January 2005)” \c 3 ,  HYPERLINK “http://www.caadv.org/docs/dvlawsfinal.pdf&#8221; http://www.caadv.org/docs/dvlawsfinal.pdf (providing a comprehensive overview of hundreds of California code sections related to domestic violence).

Additionally, the Legislature has enacted several evidentiary rules specifically designed to facilitate domestic violence prosecutions, including laws allowing experts to testify when relevant, such as when a domestic violence victim recants or refuses to testify (Cal. Evid. Code § 1107 (West 2005) TA \l “Cal. Evid. Code § 1107 (West 2005)” \s “Cal. Evid. Code § 1107 (West 2005)” \c 2 ); permitting evidence of previous acts of abuse in a criminal action in which the defendant is accused of an offense involving domestic abuse of an elder or dependent person (Cal. Evid. Code § 1109 (West 2005) TA \s “Cal. Evid. Code § 1109 (West 2005)”  mentioned supra); and permitting introduction of some forms of hearsay evidence when the domestic violence victim is unavailable to testify (Cal. Evid. Code § 1370 (West 2005) TA \l “Cal. Evid. Code § 1370 (West 2005)” \s “Cal. Evid. Code § 1370 (West 2005)” \c 2 ).  

Despite the Legislature’s efforts to improve domestic violence prosecution efforts, however, there has been a substantial drop in domestic violence prosecutions since the U.S. Supreme Court’s decision in Crawford.  In the first year after Crawford, California prosecutors reported that they were dismissing a higher number of domestic violence cases than in the preceding years. Lininger, Prosecuting Batterers After Crawford TA \s “Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 769 (2005)” , supra, at 749-50.  Sixty-one percent of responding prosecutors reported that Crawford had significantly impeded domestic violence prosecutions.  Id., at 772, 820.    

Before Crawford, prosecutors often conducted “victimless prosecutions,” where they relied on hearsay statements made by victims to police, medical personnel, clergy, social workers, and others because the victim would not testify at trial.  Melissa Moody, A Blow to Domestic Violence Victims: Applying the “Testimonial Statements” Test in Crawford v. Washington, 11 Wm. & Mary J. of Women & L. 387, 387 (2005) TA \l “Melissa Moody, A Blow to Domestic Violence Victims: Applying the \“Testimonial Statements\” Test in Crawford v. Washington, 11 Wm. & Mary J. of Women & L. 3873(2005)” \s “Melissa Moody, A Blow to Domestic Violence Victims: Applying the \”Testimonial Statements\” Test in Crawford v. Washington, 11 Wm. & Mary J. of Women & L. 387, 387 (2005)” \c 3 ; Andrew King-Ries, Crawford v. Washington: The End of Victimless Prosecution?, 28 Seattle U. L. Rev. 301, 301 (2005) TA \l “Andrew King-Ries, Crawford v. Washington: The End of Victimless Prosecution? 28 Seattle U. L. Rev. 301, 301 (2005)” \s “Andrew King-Ries, Crawford v. Washington: The End of Victimless Prosecution? 28 Seattle Univ. L. Rev. 301, 301 (2005)” \c 3 .  Further, these prosecutions often proved successful in combating domestic violence.  See, e.g., Casey G. Gwinn & Anne O’Dell, Domestic Violence and Child Abuse: Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U.L. Rev. 297, 303-04 (1993) TA \l “Casey G. Gwinn & Anne O’Dell, Domestic Violence and Child Abuse: Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U.L. Rev. 297, 303-04 (1993)” \s “Casey G. Gwinn, J.D. & Sgt. Anne O’’Dell, Domestic Violence and Child Abuse: Stopping the Violence: The Role of the Police Officer and the Prosecutor, 20 W. St. U.L. Rev. 297, 303-04 (Spring 1993)” \c 3  (“Nearly 60% of our filed cases involve uncooperative or absent victims and yet we obtain convictions in 88% of our cases…Our strategies are working to reduce violence in intimate relationships in San Diego”); Linda A. McGuire, Criminal Prosecution of Domestic Violence TA \l “Linda A. McGuire, Criminal Prosecution of Domestic Violence” \s “Linda A. McGuire, , Esq., Criminal Prosecution of Domestic Violence” \c 3 , available at  http://www.bwjp.org/documents/prosecuteV.htm (reporting that San Diego prosecutors’ and law enforcement officials’ strategies , including conducting victimless prosecutions, decreased San Diego’s domestic violence homicide rate by 59% from 1991 to 1993) (last visited Dec. 7, 2005).   

  The post-Crawford drop in domestic violence prosecutions indicates that some prosecutors and judges have failed to recognize the Rule of Forfeiture as an applicable exception to the Sixth Amendment right of confrontation in many domestic violence cases.  See Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 607 (2005) TA \l “Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 60(2005)” \s “Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 607 (2005)” \c 3  (stating that Crawford “has caused great disruption and massive uncertainty” in the prosecution of domestic violence cases).  Specifically, this trend indicates that prosecutors seek to admit an unavailable victim’s statements under the Rule only when a defendant intends to procure the victim’s unavailability at trial instead of when, as often occurs in domestic violence cases, the defendant causes the witness’s unavailability by killing the victim or by instilling fear of reprisals.  As a result, the legal system appears to reward batterers by dropping some charges, dismissing entire cases, or acquitting the batterer of domestic violence charges when the victim’s statements are the only evidence to establish a battering relationship.  

Furthermore, if batterers know that prosecutors will move to dismiss charges or lose domestic violence cases whenever batterers successfully terrorize and sequester their victims, they will intimidate and threaten their victims in order to derail prosecution.  See Lininger, Prosecuting Batterers After Crawford TA \s “Tom Lininger, Prosecuting Batterers After Crawford, 91 Va. L. Rev. 747, 769 (2005)” , supra, at 808 (raising concern that if courts require a victim witness’s live testimony in order to admit any of the victim’s statements, it is more likely that an abuser will threaten the victim before trial in the hope of preventing prosecution).  Conversely, if the judicial system holds batterers accountable for causing a victim’s unavailability, batterers will have less incentive to intimidate their victims into silence.   

CONCLUSION

For the foregoing reasons, amici respectfully request that the Court affirm the decision of the Court of Appeal.

 

Respectfully submitted,

 

 

_________________________

Nancy K. D. Lemon

Calif. State Bar No. 95627

Boalt Hall School of Law

University of California 

Berkeley, California 94720

(510) 525-3164

Attorney for Amici Curiae 

 

 

Dated: December 11, 2005

 

On behalf of

 

California Partnership to End Domestic Violence (CPEDV)

 

Asian Law Alliance of San Jose

 

California National Organization for Women (CA NOW)

 

California Women’s Law Center

 

City of Santa Cruz’s Commission for the Prevention of Violence Against Women

 

Glendale YWCA

 

Los Angeles County Bar Association Domestic Violence Project

 

Marjaree Mason Center

 

Next Door Solutions to Domestic Violence

 

Sojourn Services for Battered Women and Their Children

 

South Lake Tahoe Women’s Center

 

Walnut Avenue Women’s Center

 

Women Escaping A Violent Environment (WEAVE)

 

WomanHaven, Inc., d/b/a Center for Family Solutions

 

Women’s Crisis Support – Defensa de Mujeres

 

 

 

CERTIFICATE OF COMPLIANCE

 

I certify that this brief complies with the type-volume limitation of the California Rules of Court Rule 14(c)(1).

Exclusive of the exempted portions in California Rules of Court Rule 14(c)(3), the brief contains 7638 words.

 

 

 

 

_________________________

 

Nancy K. D. Lemon

Boalt Hall School of Law 

University of California at Berkeley

Berkeley, California 94720

Telephone: 510-525-3164

Attorney for Amici Curiae 

 

 

Dated: December 11, 2005

 

 

 

PROOF OF SERVICE

(not relevant for purposes of this post) 

 

 

 

 

 

 

 

 

 

 

 

 

 

(This segment quoted by LetsGetHonest above — before entire Giles text)

 

 Defendant concedes the second issue on review.  The Rule applies even where the wrongdoing is the same as the offense for which the defendant is on trial.  A defendant will profit from his wrongdoing regardless of whether he procured the victim’s unavailability during trial or before the prosecutor filed charges against him.  As the Kansas Supreme Court observed, “[B]ootstrapping does not pose a genuine problem.”  State v. Meeks, 88 P.3d 789, 794 (Kan. 2004). TA \l “State v. Meeks, 88 P.3d 789 (Kan. 2004).” \s “State v. Meeks, 88 P.3d 789, 794 (Kan. 2004).” \c 1  

 Arguably, some victims may refuse to assist in their batterers’ prosecutions due to factors that the batterer does not cause, including love and the hope that the batterer will change.  Linda Kelly, Domestic Violence Survivors: Surviving the Beatings Of 1996, 11 Geo. Immigr. L.J. 303, 308-309 (1997) TA \l “Linda Kelly, Domestic Violence Survivors: Surviving the Beatings Of 1996, 11 Geo. Immigr. L.J. 303, 308-309 (1997)” \s “Linda Kelly, Domestic Violence Survivors: Surviving tThe Beatings Of 1996, 11 Geo. EOImmigr. L.J. 303, 308-309 (1997)” \c 3 .  However, even in these circumstances, trial courts may determine that the batterer caused the victim’s unavailability by preying on the victim’s emotions and promising to change.  

 Tom Lininger, an assistant professor at the University of Oregon School of Law, conducted a survey of more than sixty prosecutors’ offices in California, Washington, and Oregon regarding Crawford’s impact on domestic violence prosecutions.  The survey included responses from 23 counties in California (which collectively included eighty-eight percent of California’s population).  Several courts have recently cited Lininger’s domestic violence research findings, including the Ninth Circuit Court of Appeals.  See United States v. Hall, 419 F.3d 980 (9th Cir. 2005) TA \s “United States v. Hall, No. 04-50193, 2005 U.S. App. LEXIS 17148, at *21 n.6419 F.3d 980, 988 n.6 (9th Cir.  Aug. 15, 2005)” .

 

 

 

 

 

 

 

 

 

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