CT Supreme Court Establishes Basic Rights for those Accused of DV
November 7th, 2009 by Robert Franklin, Esq.Perhaps the bedrock principle of due process is that, at a bare minimum, a defendant whose rights the state wants to infringe or remove entirely is entitled to notice of the charge against him/her and a hearing before an impartial arbiter. The most heinous mass murderer is entitled to those two basic things. Actually, as anyone who's heard the 'Miranda' rights repeated on a cops-'n-robbers television show knows, he/she's entitled to more than that, like an attorney, the right to not give evidence against him/herself, etc.
So it's interesting that, in the area of domestic violence law, those two basic rights are routinely abridged. The mere allegation of domestic violence, even by someone who's not a witness to the event, can be enough to deprive a person of his right of free speech (restraining orders prohibit the defendant from speaking to, e.g. his wife) and free association (they prohibit contact with his children).
Now the Connecticut Supreme Court has ruled that more is required to support the continuing effect of a temporary restraining order. Read about it here (Connecticut Law Tribune, 11/2/09). The order may be issued initially on little evidence and with no notice to the defendant and therefore no opportunity to defend himself. But that order can now remain in force only for a "reasonable" period of time. Needless to say, what constitutes a reasonable time will vary from court to court and case to case. Surely the Connecticut court will be forced to give some definition to the term in the future.
But,
In an opinion to be officially released this week, a divided court ruled that a defendant must be granted an evidentiary hearing at which the state must prove, by the civil standard of a preponderance of evidence, that the order of protection is a continued necessity.
At that hearing,
“The defendant may… testify or present witnesses on his own behalf, and may cross-examine any witnesses whom the state might elect to present against him,” stated Justice Flemming L. Norcott Jr., who wrote the majority opinion.
That's exactly what Fernando A. didn't get from the State of Connecticut when his wife accused him of domestic violence. As we've come to expect, based on her statement alone, he was removed from his house and from all contact with his wife and children. His attorney requested a hearing to contest the continuing effect of the restraining order and was denied. It was his case that the Connecticut Supreme Court ruled on.
Now, this is far from a guarantee of a fair process. As the article points out, how long a defendant may be deprived of his home, his belongings, access to his children, bank accounts, etc., is an open question. Likewise, the standard of proof is the civil one of "preponderance of the evidence," which means, if the prosecution produces barely more than half the weight of evidence, it wins and the defendant's children may face an indefinite time apart from him. Why the standard of proof should be so low in what is in fact a criminal case, is beyond me.
And the state can prove its case with hearsay and, indeed, hearsay upon hearsay. The state can have a restraining order continued indefinitely on the hearsay written report of a police officer who was not present at the incident and whose report contains only the hearsay statements of the complainant. And needless to say, a defendant cannot cross-examine the piece of paper on which such a report is written.
But the defendant will have the opportunity to subpoena witnesses, including the police officer and the complainant.
For domestic violence advocates like Anne C. Dranginis, attorney for the Connecticut Coalition Against Domestic Violence, even that's too much. Her complaint is the one made by police officers everywhere - give defendants rights and you make it hard to convict them.
Dranginis said if women knew they would have to face their abuser in court a day or two after an arrest, that would have a “chilling, deterring effect” on abused spouses and partners bringing charges.
That may be true. If so, it's probably true in all cases in which violent crime is alleged. Surely it's difficult for the victim of any violent crime to confront his/her assailant in court. But Dranginis' argument ignores the obvious - that when the state seeks to deprive individuals of their basic rights, it must do so only via due process of law. Police and prosecutors never like that idea because it gets in the way of putting people in prison. It's worth noting that the Connecticut Coalition Against Domestic Violence stands firmly with the state against the individual on this one. Theirs is the stance of someone who's never faced the power of the state in criminal cases, who's never looked at years behind bars on a trumped up charge.
All in all, this is far from a perfect outcome, but it's definitely a step in the right direction, i.e. toward sanity and back to the concepts of due process that have made up the basis of Anglo-American law for centuries.
Thanks to Ned for the heads-up.
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November 7th, 2009 at 10:28 am
Well, you can surely understand the pov of Ms. Dranginis. I mean, why let facts and evidence and due process get in the way of a good lynching? Worked in the south, why can't it work now?
November 7th, 2009 at 12:32 pm
The fact that they ignore the laws that are there already and refuse to prosecute an alleged crime in criminal court properly was at the base issue here. I would call this a step to the side rather than forward, but that's better than backwards. Kudos to CT supreme court for a great duck and cover judgement!!!!!!
November 7th, 2009 at 1:05 pm
"Dranginis said if women knew they would have to face their abuser in court a day or two after an arrest, that would have a “chilling, deterring effect” on abused spouses and partners bringing charges."
MCA says..it would most certainly have a "chilling effect" on domestic violence accusations that are simply..."False accusations"
November 7th, 2009 at 1:18 pm
And kudos to he ACLU for taking the side of the falsely accused. "Conversely, the ACLU of Connecticut argued that there are people who get falsely accused of domestic violence and they deserve a chance to be heard before losing their rights, especially the right to visit their children. "
Unless I missed it, that wasn't mentioned in the post above, .
November 7th, 2009 at 1:35 pm
The mere allegation of domestic violence, even by someone who's not a witness to the event, can be enough to deprive a person of his right of free speech (restraining orders prohibit the defendant from speaking to, e.g. his wife) and free association (they prohibit contact with his children).
And, due to federal law, removes the accused second amendment rights. A person who is under a TRO is not allowed to own firearms. While your two mentions of the first amendment violations may be "small" (not allowed to speak around or associate with _one person_) the second amendment violation is total (the accused is not allowed to own or carry firearms while under a TRO, _at all_).
It is due to that total removal of the accused second amendment rights that a TRO procedure can be viewed as nothing but a criminal proceeding. According to the law, a person's Constitutional rights cannot be removed without due process. However..
Must? No, we are finding out the truth. The State can do whatever the hell it wants, and has, as long is a sufficient portion of the populace isn't risen to anger to the point where they will tell the government that they are no longer fit to govern. Any of us here can point to thousands of Constitutional violations in law and court proceedings. That means Jack Squat until we hold government's feet to the fire over those violations.
November 7th, 2009 at 2:22 pm
The chivalrous law and order men who support harsh domestic violence laws become staunch defenders of due process rights the minute they are falsely accused. Too bad they must endure such an ordeal before the lightswitch goes on in their heads that due process rights were invented to protect the innocent.
November 7th, 2009 at 2:41 pm
@Pierre due process doesn't just protect the innocent. It protects all of us. That sort of thinking gets us to the fallacy that certain groups (accused terrorists, etc) aren't "worthy" of due process and we can short-circuit the Constitution whenever we feel like it..
November 7th, 2009 at 6:02 pm
Robert succinctly and powerfully sums up the entire problem about restraining orders vs. due process:
"Her complaint is the one made by police officers everywhere - give defendants rights and you make it hard to convict them."
Dranginis said if women knew they would have to face their abuser in court a day or two after an arrest, that would have a “chilling, deterring effect” on abused spouses and partners bringing charges.
A chilling effect on false charges. Let's celebrate this.
Make accusations to the face of the accused or not at all... treat adults as adults. And never hand rights and conviction to the cop, or the law becomes the abuse victim.
November 7th, 2009 at 11:11 pm
This is a "tiny" step in the right direction... Men shouldn't have to live in constant fear and intimidation.
November 9th, 2009 at 9:45 am
# John M Says:
November 7th, 2009 at 10:28 am
Well, you can surely understand the pov of Ms. Dranginis. I mean, why let facts and evidence and due process get in the way of a good lynching? Worked in the south, why can't it work now?
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Your tongue-in-cheek point makes me think about something I have dwelled upon off/on as I peruse a lot of MRA webpages.
I can't say if we've really reached a "tipping point" where Feminism has climaxed and everything will be a down-hill fight back to sanity or not. On the heels of the California decision that grants had to be apportioned equally between DV shelters that house only women and those that helped men (and that DV shelters collecting federal funds can't turn away men) we have B.O. knuckling under to NOW and designating 42% of the bailout to go to state governments and medicine to save/create thousands of female jobs even though 80% of the job losses of the last few years have been in male-heavy segments.
If we have not reached a tipping point, and things get much worse for men it makes me think that men are essentially the new n**gers of society (and black men are even lower).
One good thing is that as all men become the new n**gers of this female-centered society hopefully a lot of the racial tensions between white men and black men will evaporate. After all, some of the most negatively affected by this societies misandrist laws are poor black and latino men.
November 10th, 2009 at 9:29 am
This typifies a "system" which deprives individuals of their respective rights guaranteed under the United States Constitution of which the essential basics of "due process" and a "right to face and cross-examine" one's respective accusers before exacting punishment and is akin to pupet regimes in third world countries.
I can't fathom how any court and attorney's present therein; can reasonably state without equivocation, that this is representive of a "fair and just" process.
For the CT Supreme Court to render a "muted" decision on this specific case provides another indication of just how weak and morally deficient judges have become at the bequest of politicians whom are easily swayed by special interest groups.
Obviously, they have collectively forgotten their responsibility to "uphold the law"; including those dictated within the U.S. Constitution which supercede any group attempt at circumvention through contradicting state and local statutes.
I sincerely hope those judges remember what others have given their lives for in multiple wars fought since the Declaration of Independence and during thee continuing existence of this nation on this upcoming Veterans Day.
It was about a Republic governed "by law" starting with initial amendments that comprise the "Bill of Rights".
Again, circumventing and/or otherwise ignoring principles they embody should be considered tyranny!
November 10th, 2009 at 12:16 pm
It is a government of the people for the peolpe. So long as the people sit by and do nothing, the government will get away with doing what ever they want. The people of the United States are the ones responsible to look after the government. Some how or another though, the government has convinced the people to sit done and shut up and tolerate the abuse. I wonder if I can get a restraining order against the government.
November 16th, 2009 at 9:53 pm
Someone please explain to me how if you are the victim of any crime or wrong doing you wouldn't want to fact the accused in court? It's a courtroom, not a boxing ring.
But when did the women's movement ever depend upon evidence?