Monday, March 30, 2015

Preliminary Injunction Civil Protective Order in Washington DC

Washington DC does have a vehicle for a civil protective order. It is a straightforward procedure if the victim and defendant are related by blood, adoption, marriage, domestic partnership, have a child in common, share or have shared the same home, or have previously had a dating relationship. Additionally, if the person you are currently in a relationship with has an former partner who is threatening you you can get a civil protection order also. It also protects people not in the above type relationships who are victims of stalking, sexual assault or sexual abuse.

The procedure is fairly straightforward and the DC code tells you how to do it.  Refer to  DC code section 16-1000 etc.

But what happens if you don't fit into that category and are being threatened. The procedure is more complicated. The district allows you to file a civil complaint requesting a temporary restraining order followed up by a request for an injunction. The steps are more involved and the process can take several court hearings. I recently had such a case and share some very basic observations:

Based on my legal research it is my opinion that in  order to succeed with the injunction the following four factors need to be proved:

1. Likelihood of irreparable harm if request is not granted (this is the most important factor)
2. Likelihood of success on the merits of the underlying action
3. The "balance of injuries" favors giving injunction
4. Public interest would be served by granting the injunction

The burden of proof that you as the petitioner must overcome is clear and convincing proof. That is the second highest level of proof in the American justice system only somewhat below "beyond reasonable doubt".

In this particular case I call the victim who testified as to the threats made by the defendant. The victim testified very credibly and consistently. The defendant took the stand and his testimony was not presented well. I made a tactical decision not to cross-examine the defendant because I did not think that he hurt my client's case and he did not help his case.

Thereafter I put on a rebuttal witness who basically confirmed what the victim said and further rebutted what the defendant said.

The judge was able to make a decision without hearing closing argument. He favored my client's testimony and granted the preliminary injunction preventing the defendant from having any contact with my client, the victim, for one year.

If you are in a situation where you need a civil protective order or a Temporary Restraining Order I have both prosecuted and defended these in the Superior Court for Washington DC.

Friday, March 27, 2015

Brief Observation on DNA Evidence

Recently I was at a DNA seminar and there was a point well made. Consider the following matrix:

Offense: Rape
Activity: Intercourse
Source: Linens from the bed
Substance: DNA

The offense in the case is rape, the activity is intercourse, the source are the sheets and the substance found is the defendant's DNA.

The prosecution would have the jury believe that the DNA is from semen and therefore a rape was committed. The defense must challenge where that DNA came from. It could've come from a skin cell, hair, or blood. It did not necessarily come from semen. It would likely establish that the defendant was there but it does not conclusively prove that the defendant provided DNA from his semen.  If there is no semen there may be reasonable doubt that intercourse let alone rape occurred.

The point is, just because DNA is present doesn't mean that the defendant did something illegal.

Tuesday, March 17, 2015

Violation of Probation Dismissed

My client was on probation in the District Court of Maryland. His probation was from January 2013 through January 2014. While he was on probation in the District Court it was alleged by the department of parole and probation that he failed to report as required, that he committed new crimes, that he failed to pay restitution, that he failed to pay probation fees. In short, he did about as badly as one can imagine on probation. The case was heard in the District Court (With a different attorney) and the judge found him in violation of probation and sentenced him to 18 months in jail.

In Maryland the defendant has the right to appeal such a finding to the Circuit Court and have a new hearing on violation of probation. It was at this point that he hired me. I reviewed the facts in the file and it became clear to me that the petition for violation of probation was filed some 20 days after the defendant's probation had expired. In Maryland, in the District Court, at the current time, a petition for violation of probation must be filed during the time that probation is active or within 30 days of the violation, whichever is later. In this case the petition was filed substantially after probation had closed. In my opinion the petition was not timely filed and should be dismissed.

When the appealed case was presented in the Circuit Court I made this five-minute argument. The circuit court judge was very familiar with the statute and the petition was dismissed. Rather than spending 18 months in jail my client was able to go about his business.

When facing a violation of probation it is very easy to lose and lose badly. It is important to have an attorney who is familiar with the various aspects of this specialized area of the law.