Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
Domestic violence cases, whether a felony or a misdemeanor, carry serious penalties than a non-domestic assault, aggravated assault, battery, or aggravated battery charge. One key difference is the length of time someone can be sentenced under the statutes. For example, if someone was charged with a misdemeanor domestic violence charge, that would be what we call a simple battery or a simple assault. In addition, a domestic assault, or a domestic battery is going to have a lower penalty level that maxes out with the jail sentence, and not a prison sentence. For example, a domestic violence battery charge carries a maximum of up to a year in jail. Whereas a domestic violence charge that is a felony battery would have a five-year maximum charge, and a domestic violence charge that is an aggravated battery would have a fifteen-year maximum charge.
The length of time someone could be at liability for serving could be significantly higher if there are other enhancements such as ten; twenty years to life or anything, that involves serious injuries. The moment you start talking about serious injuries, victim injury points have to be calculated under the felony punishment codes, and when firearms are part of the equation, you have all kinds of different enhancements that can make it more serious. Then finally, of course, if the person who is on the receiving end of an aggravated domestic violence battery dies, that could be upgraded to a murder charge. Either way, when it comes to domestic violence charges, a felony, or misdemeanor, these things cannot be sealed, and cannot be expunged unless they are dismissed, or alternatively substituted for other charges.
What Defense Strategies Can Be Used In Domestic Violence Cases?
We actually have to break this down into two parts. First, there are strategies, and secondly, there are defenses. For example, let us say that we have a simple domestic violence battery charge, the parties are at the end of their relationship, and no longer wish to have communication with each other, and it is obvious that the relationship is going to terminate. Well as a strategic matter, it is a good idea to try to get the bond conditions changed from no contact to any violent contact. If it is a marital situation, it helps if the parties can communicate with each other so they can hash out the various aspects of what is called a marital settlement agreement.
Assets are going to be divided, a property is going to be distributed, and because of these issues, quite often the parties need to keep in contact. However, more importantly, by getting that provisional bond changed from no contact to any violent contact, this prevents the possibility of somebody claiming in a moment of anger that bond conditions have been violated. If someone claims that bond conditions have been violated in a domestic violence case, then a sitting judge is almost certainly going to revoke that person’s bond, and the defendant will stay in jail for the entirety of the case, in many cases, with additional charges for having the contact that is prohibited.
That is an example of a strategy. The parties do not want to have any communication with each other, but at the same time, if we get that bond condition changed from no contact to any violent contact, it helps with a division of marital assets in marital cases to preventing nasty surprises later. A defense, on the other hand, is exactly what you asked about. Self-defense is clearly a defense to domestic violence in the form of battery or assault. It can be a defense in a more aggravated felony situation too. There are other defenses, as well that people do not normally think of. For example, there is the defense of accidental contact. You have to remember that in a battery case, the two elements are intentional contact that is either harmful or offensive.
If the contact is offensive, like bumping, yet it is accidental, then by its very nature, that is the defense to a battery and that is usually a jury issue, what we call a fact-finding issue that a judge can decide in certain cases, and not subject to a pre-trial motion in most cases. That is an example of a defense that is very common, but people do not realize that. In addition to the accident in self-defense, you have the defense it did not happen at all. It may surprise some people, but when people are looking to get the advantage towards the end of a relationship with regard to child custody, pets, property, or just because they want some retaliation for whatever reason, they can fabricate charges. So, the defense of it did not happen is a defense to battery.
Finally, one of the rare defenses to a battery is mutual combat. Mutual combat applies in misdemeanor domestic battery cases but does not apply to felony, aggravated battery, and domestic violence cases. One is a general intent crime, the misdemeanor; the other is a specific intent crime, the felony. But more importantly, there is a policy decision that says that people cannot mutually consent to cause great bodily harm or even death to each other. For example, dueling has been outlawed for a long time whether it is in the domestic context or not. Finally, going back to strategies, there are multiple strategies that would take a daylong seminar when it comes to domestic violence cases, but some of the key strategies that most defense lawyers miss involve psychology.
It is critically important to understand the role of personal psychology when handling misdemeanor and felony domestic violence cases. From the defense side of the case, it is critical that the defendant and every person close to the defendant have an entire system for coping with stress during the criminal prosecution. Our firm has had a system for coping with such stress for coming up on two decades now. Most law firms do not do this, and they rely upon what I call handholding office chats. The handholding office chat is the least productive use of your lawyer’s time. Your lawyer is not your therapist. However, at the same time, in many cases, a therapist is not a bad idea if the main parts of our system, books, audio programs, and videos are not working affectively.
Whenever a lawyer has to take time for some type of an appointment to manage a client’s stress or worse, manage the stress of their family members that takes away some time that can be used more productively on a case. When lawyers set fees in criminal defense cases of all kinds, they generally do not a budget time when setting the fee for handholding comfort visits. However, many lawyers engage in large numbers of these types of counterproductive appointments instead of wasting our client’s legal fees on activities that will not produce the result they are looking for. We created a system to deal with that. That is one of our key strategies, coping with stress during a criminal prosecution.
Another aspect of the defense strategy is it is 2017, and I am still hearing lawyers tell their clients right outside of the courthouse door, “Dress night for trial on Monday”. This is easily the worst advice the lawyer could possibly give. In fact, I would tell people straight out do not dress nicely for court; do not dress nicely for court ever. The looks on people’s faces are quite remarkable until I explain there is a way you dress specifically that has been scientifically studied that will have a positive influence on prosecutors, judges, juries, and witnesses, and at the same time, there are ways that people dress that can have negative influences on all of these courtroom players.
Therefore, when it comes to the strategies and defenses in a domestic violence case, whether misdemeanor or a felony, it is exceedingly important when selecting a lawyer. Pick a lawyer who knows about these things, pays attention to these issues and has a system for these things. This is one of the most important aspects of interviewing a perspective criminal defense lawyer with a domestic violence charge.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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