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'A Different Kind of Attention Develops Sound Judgment' | 'Suppose I'm Right Here?…' (posted 3/23 & 3/5/2014). Over 680 posts, Public-Interest Investigative Blogging On These Matters Since 2009.

Wykenna Watson challenges a plea-bargain on restraining order violation. Her criminal contempt IS upheld. But Supreme Court Justices: C.J. Roberts, Scalia, Kennedy & Sotomayor “Strongly Dissent..”

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This just in. . . . .

These notable Honoraries, from the Highest Court in our nation, which court’s Chief Justice gets to swear in the President of the United States in an oath to protect & defend the Constitution, . . . . .  are objecting to her actually expecting the violation of a RECENT restraining order to be taken seriously, for once, and not plea-bargained.  This may go a ways towards making such restraining orders less “certifiably insane.” 

This Washington Post article tells how a woman challenged a DISMISSAL of charges on a 2nd assault by her boyfriend, which assault was also a violation of a restraining order (probably of the criminal one…)

She is saying “NO!” to those who plea-bargained him OUT of an assault AFTER a civil restraining order was in place.  The U.S. Attorney’s Office let him off easier, and she said NO by filing for criminal contempt.

She can’t exactly go after those who plea-bargained him quite so easily.  For one, they are armed…..So she went to uphold the concept of “ORDER” meaning “ORDER” and violating it intentionally as SERIOUS. 

washingtonpost.com

By Josh White  |  May 24, 2010; 2:30 PM ET

The U.S. Supreme Court today dismissed a case originating out of the District that challenged the ability of a private citizen to bring criminal contempt charges against someone else in a domestic violence case.

Split 5-4, with a strongly worded dissent by Chief Justice John Roberts, the court declined to interfere with a lower court decision that upheld guilty findings on criminal contempt charges against John Robertson, who was convicted in the District of violating a restraining order against him.

But as part of a plea agreement with the U.S. Attorney’s Office, Robertson agreed to plead guilty to the first attack if prosecutors were willing to dimiss charges for the second attack, which they did.

Watson, dissatisfied with the outcome, later that year herself filed criminal contempt charges against Robertson. After a two-day trial, Robertson was convicted, sentenced to an additional year in jail and ordered to pay Watson $10,000 in restitution.

Ms. Watson showed some real courage & savvy in doing this, as the 2nd assault itself represented (in context) a form of retaliation for saying no the first time. 

Speaking for myself, and many other women, we have been discouraged by repeated failures of the CRIMINAL section of government (D.A. on down)’s failures to arrest, prosecute, and keep in jail, batterers who escalate their actions after being confronted. 

This article doesn’t say (upfront) whether mutual children were involved, which adds another layer of possible intimidation and threat to the woman confronting abuse. 

I have found it very frustrating to experience all the results of crime, including trauma, job loss, and curtailed social connections, and repeatedly return to “family court” and have our case funneled through mediation as if it was still a personal squabble.   SPeaking for myself only, I have been treated with disdain and disrespect (repeatedly) in seeking this. 

Failing to prosecute or show consequences for assault & battery, whether misdemeanor (THIS time) or felony-level, sends a clear message to the perpetrator:  “no holds barred, go ahead, we won’t really punish you….” and it also sends a message to people who support the woman in noncriminal ways.  It taxes their resources also.  I believe this is WHY California law had this clause, even though it’s largely ignored in practice:

Google search of “clear and present danger” only pulled up references to spousal abuse on the 2nd page of searches.  That the first one was from my blog! tells me it’s not a common topic of conversation these days….

Search Results

  1. Clear and Present Danger”…fuzzy usage by AFCC « Let’sGetHonestBlog

    Dec 1, 2009 The Legislature hereby finds that spousal abusers present a clear and present danger to the mental and physical well-being of the citizens
    familycourtmatters.wordpress.com/…/clear-and-presentdanger-fuzzy-usage-by-afcc/Cached
  2. [DOC]

    Domestic Violence, by its Nature, Frequently Results in Forfeiture

     – 3 visits – 10/15/09

    File Format: Microsoft Word – View as HTML
    Domestic violence victims frequently fail to assist in their batterer’s prosecutions. ….. “[Since] spousal abusers present a clear and present danger to the mental Code § 273.81 (West 2005) (establishing Spousal Abuser Prosecution
    http://www.law.berkeley.edu/files/GilesAmicusBrief.docSimilar
  3. CHAPTER 2.5. SPOUSAL ABUSERS – Sections 273.8-273.88 – California

    The Legislature hereby finds that spousal abusers present a clear and present danger to the mental and physical well-being of the citizens of the State of
    law.justia.com › … › California CodeCalifornia Penal CodeCached
  4. A Critical Look at Janet Johnston’s Typology of Batterers by Lundy

    Janet Johnston’s work attempts to make this sort of clear demarcation, ….. A new, negative image of the other spouse is crystallized out of this desperate how batterers present in public, including some of the most dangerous. Johnston’s work may, in the aggregate, be contributing to the danger of the
    www.lundybancroft.com/art_johnston.html

The fact that sometimes people die, or suffer serious injuries, or kids are kidnapped and cut off with contact from the other parent, bypassers sometimes are hurt, and  property (houses, businesses) may get trashed in the process — is, I’d say, an “indicator” of “clear and present danger” to more than just those “intimate partners.”

But in Family Law and Civil Law La-La-Land, you couldn’t tell, in practice.

I keep general tabs on the local courtrooms or “family court services” areas in at least two counties in California.  Well, I’ve been in the system for years, also.  And I have noticed that the material even “Saying” the words “Domestic Violence” are becoming rarer and rarer.  They are replaced — even when distributed right next to a window whose title is “restraining orders,” with brochures published, for the most part (in one county) by the ubiquitous “AFCC” (see my blog, search term, or search the web) and/or Child Support Brochures, all aspects of parenting.  I.e., a marketing plug for the professionals in memberships of AFCC. 

In the other county, there were multiple brochures put out by the local State Bar.  The ONLY one (of same format) put out which said “Domestic Violence” on it was put out by a family-law section of this state bar.  By now, most of us should know that to become a certified (even) family law specialist doesn’t require much training at all in domestic violence, and less in child abuse issues, which overlap. …. 

In the social services office, at another address, again, a large (and well-populated!) room, as I usually do, I looked for materials on domestic violence.  There was ONE brochure, and the word is (FYI no longer “violence” but “Abuse.”  However the same group that put this very small brochure about “abuse” out (even though the nonprofit’s name contained the word “violence”) had a duplicate one more about parenting issues.

We have become a nation of family counselors and psychologists, judging by the courtrooms, and where the public funding is going.  Forget crminal prosecution for criminal acts — the line has blurred.

Into this, walks a woman whose case hit the Supreme Court, AND I notice that there was “STRONG DISSENT” that private citizens should actually take action to treat contempt of a court order as serious, in addition to an assault on a woman by a man after he’d already been reserved a restraining order.

Well, she’s right, and I think we just see where the Supreme Court considers the government/private citizen divide.

We might well wonder who switched the priorities from government — for whom citizens pay — serving the citizens, to the citizens serving the government.  Anyhow, continuing with this article……

Robertson appealed, arguing that any such charges against him were in violation of his plea agreement with the government, and could not be initiated by a private citizen. The Court of Appeals rejected that arguments, finding that the criminal contempt prosecution was brought as a private action and not in the “name and interest of the United States or any other governmental entity.”

In a case that garnered great interest from defense attorneys and those who work to fight domestic violence alike, the Supreme Court ultimately opted not to get involved, with a one-sentence opinion letting Watson’s victory stand and appearing to validate D.C. laws that allow victims to initiate such prosecutions regardless of plea agreements with the government.

In other words, there’s hope for actual consequences for violating court orders saying “Don’t Tread On Me!”  Good.

(please read rest of article, link above).

NOW, let’s take a look at that dissent, and WHY the Supreme Court doesn’t want to let go some of the power of the criminal sector to actually go towards its designated end, stopping crime, if a lowly WOMAN, and a Private Citizen, takes action to defend her rights to expect the courts and police and prisons (etc.) to defend her physical person…

Remember, “life, liberty and pursuit of happiness.”  Which one of those comes first, and which one of those should we really leave up to a distant politician, legislator, or US Attorney’s Office to plea-bargain out?

I read on-line often enough of criminal sector complaints that women sometimes drop charges.  A lot of conferences and discussions takes place on those bad women for not participating in the prosecution.  There have been discussions on whether it’s appropriate to hold a WOMAN in contempt for NOT participating in being a witness, or in the prosecution of criminal level domestic violence.  In some of these cases, she is weighing what the system will (or in too many cases, WON’T) do against the safety of herself, and/or, her family members (kids or parents).  To fail to weigh this is to be flippant with human sacrifice — it bears weighing, this “life” thing….

Now a woman IS participating in the prosecution, and here’s the “STRONG DISSENT” from the highest court in the land:

Roberts’ 12-page dissent, joined by Justices Scalia, Kennedy and Sotomayor, strongly argues for the issue to be revisited.

“The terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government,” Roberts wrote, arguing that changing that concept gives rise to “unsettling questions” about defendant rights. “Our entire criminal justice system is premised on the notion that a criminal prosecution pits the government against the governed, not one private citizen against another. The ruling below is a startling repudiation of that basic understanding.”

 

Here is the dissent:

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 08–6261

JOHN ROBERTSON, PETITIONER

v. UNITED STATES EX REL. WYKENNA WATSON ON WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

[May 24, 2010]

P

ER CURIAM. The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

I

In March 1999, Wykenna Watson was assaulted by her then-boyfriend, John Robertson. App. 40. Watson soughtand secured a civil protective order against Robertson, prohibiting him from approaching within 100 feet of her and from assaulting, threatening, harassing, physically abusing, or contacting her.

 

Id., at 20. At the same time, the United States Attorney’s Office (USAO) was independently pursuing criminal charges against Robertson arising from the assault.

This puts her case in a situation that not all women get to — some of them (us, in my case) don’t even get the police, or DA’s office to start the criminal charges.  I wonder if this had been a family law case if it wouldn’t have been shunted to the local Family Law Facilitator’s Office before she knew what happened to her.  Did it involve a kickout, or was it closer to what society actually recognizes as wrong — assaulting a woman in public or about her business, rather than “behind closed doors.”???  In which case it’s easier to discredit.

On June 26, Robertson violated the protective order by again violently assaulting Watson. On July 8, he was indicted for the previous March incident; shortly thereafter, the USAO offered, and Robertson accepted, a plea agreement resolving those charges. Id., at 26–30. At the top of the boilerplate plea form, the Assistant U. S. Attorney added in longhand: “In exchange for Mr. Robertson’s plea of guilty to attempt[ed] aggravated assault, the gov’t agrees to: DISMISS the [remaining] charges[,] [and] [n]ot pursue any charges concerning an incident on 6-26-99.” Id., at 28.

i.e., Are such plea forms so common, there is a “boiler plate” for them.  But this Assistant U.S. Attorney went one farther and said, he’s not really a bad guy, he just was disturbed by the breakup of the relationship, and if he’ll make OUR job (if not her life) easier, we’ll let him off without the full punishment.

 

 The Superior Court accepted Robertson’s plea and sentenced him to 1 to 3 years’ imprisonment.

That there’s a lot.  Wonder what the quality of the first assault was.

Id., at 30, 46, 53. A few months later, Watson filed a motion to initiate criminal contempt proceedings against Robertson forviolating the civil protective order, based on the June 26 assault. See D. C. Code §16–1005(f) (2009 Supp.); D. C.Super. Ct. Domestic Violence Rule 12(d) (Lexis 2010); In re Robertson, 940 A. 2d 1050, 1053 (D. C. 2008). After a 2day bench trial, the court found Robertson guilty on three counts of criminal contempt and sentenced him to three consecutive 180-day terms of imprisonment, suspending execution of the last in favor of five years’ probation. The court also ordered Robertson to pay Watson roughly $10,000 in restitution. App. 2, 63–64. Robertson filed a motion to vacate the judgment, which the court denied. Id., at 1059–1060.

He said, “I don’t want to take responsibility for the assault.”

Robertson appealed. Criminal contempt prosecutions,he argued, “are between the public and the defendant,” and thus could “only be brought in the name of the relevant sovereign, . . . the United States.” Brief for Petitioner 8, 10 (quoting Brief for Appellant in No. 00–FM–1269 etc.

(D. C.), pp. 20–21, and 940 A. 2d, at 1057; internal quotation marks omitted). So viewed, the prosecution based on the June 26 incident could not be brought, because the plea agreement barred the “gov[ernment”  from pursuingany charges arising from that incident.

The Court of Appeals rejected Robertson’s arguments, in a two-step holding. Step one: “the criminal contempt prosecution in this case was conducted as a private action brought in the name and interest of Ms. Watson, not as a public action brought in the name and interest of theUnited States or any other governmental entity.” 940

A. 2d, at 1057–1058 (internal quotation marks and brackets omitted). Step two: because the criminal contempt prosecution was brought as an exercise of private power,that prosecution did not implicate a plea agreement that bound only the government.

And so forth.  This next paste is from the end of the dissent:

Allegorical depictions of the law frequently show a figure wielding a sword—the sword of justice, to be used to smite those who violate the criminal laws. Indeed, outside our own courthouse you will find a statue of more than 30 tons, Authority of Law, which portrays a male figure with such a sword.

{{para. added by blogger}} According to the sculptor, James Earle Fraser (who also designed the buffalo nickel), the figure sits “wait[ing] with concentrated attention, holding in his left hand the tablet of laws, backed by the sheathed sword, symbolic of enforcement through law.” Supreme Court of the United States, Office of the Curator, Contemplation of Justice and Authority of Law Information Sheet 2 (2009) (available in Clerk of Court’s case file).

A basic step in organizing a civilized society is to take that sword out of private hands and turn it over to an organized government, acting on behalf of all the people.

Indeed, “[t]he . . . power a man has in the state of nature is the power topunish the crimes committed against that law. [But this]he gives up when he joins [a] . . . political society, and incorporates into [a] commonwealth.” Locke, Second  Treatise, §128, at 64.The ruling below contravenes that fundamental proposition, and should not be allowed to stand. At the very least,we should do what we decided to do when we granted certiorari, and took the unusual step of rephrasing thequestion presented: answer it.

I respectfully dissent from the Court’s belated determination not to answer that question

As to that, I refer to the Declaration of Independence…. when highest officials in a state, or country, violate its own laws (with impunity) and retaliate against those who protest, we in a different context than the actual separation of either CHURCH & STATE, or — and I have done some homework on this — “PRIVATE MONEY” and the state. 

I’d have given a lot for any male figure with a weapon in his hand and the laws in the other hand.  But in the past 20 years, I’ve yet to find one willing to intervene between me and the male figure I married, who at times had weapons in his hands, and I assure you, there was no consideration of the laws, or upholding them, in context.  To this day, I wonder how life might’ve been different had I been “woman enough” to “man up” and fight back.  But as I was pregnant and a mother at the time, I had other considerations. . .

So, I have not examined this in detail, but am posting it as recent, and relevant.  I hope readership will consider it the article & the dissent, and those issues in more detail. 

When it’s “blown off” as a misdemeanor, or not take seriously, the overall standard of what’s acceptable — in our country (or locality) goes downhill.  It sends a message that this WILL be tolerated.  It’s OK to assault your girlfriend.

I’m a woman, and I’m a mom.  I had daughters, not sons.  I do NOT think it’s OK to assault one’s girlfriend, or boyfriend, and I know how hard it is to breakup from a “committed” relationship, although I must say, from the start, my own was a nightmare.

I also know where support is, and isn’t (mostly isn’t) in these matters.  DOn’t ask your pastor to stick up for you, or priest, in most cases.  Maybe on a short-term, but when it gets stuck in the courts?  Who’s going to help then?

  (dates to 1987, but old doctrines — especially Calvinist — die hard….)

///

Sexual and Family Violence: A Growing Issue for the Churches

by Lois Gehr Livezey

Dr. Livezey is assistant professor of Christian social ethics at Princeton Theological Seminary, Princeton, New Jersey. This article appeared in the Christian Century, October 28, 1987, p. 938. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at

 

www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock

. . .

John Calvin wrote the following words to a battered woman seeking his counsel:

We have a special sympathy for poor women who are evilly and roughly treated by their husbands, because of the roughness and cruelty of the tyranny and captivity which is their lot. We do not find ourselves permitted by the Word of God, however, to advise a woman to leave her husband, except by force of necessity; and we do not understand this force to be operative when a husband behaves roughly and uses threats to his wife, nor even when he beats her, but when there is imminent peril to her life . . . [W]e . . . exhort her to bear with patience the cross which God has seen fit to place upon her; and meanwhile not to deviate from the duty which she has before God to please her husband, but to be faithful whatever happens [“Letter From Calvin to an Unknown Woman,” June 4, 1559, Calvini Opera, XVII, col. 539, in P. E. Hughes, editor, The Register of the Company of Pastors of Geneva in the Time of Calvin (Eerdmans, 1966) , pp. 344-345].

{{Let’s Get Honest comments: That’s all of this post for today, I provided the links, you do the legwork!}}

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martinplaut

Journalist specialising in the Horn of Africa and Southern Africa

Let's Get Honest! Blog: Absolutely Uncommon Analysis of Family & Conciliation Courts' Operations, Practices, & History

'A Different Kind of Attention Develops Sound Judgment' | 'Suppose I'm Right Here?...' (posted 3/23 & 3/5/2014). Over 680 posts, Public-Interest Investigative Blogging On These Matters Since 2009.

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