“Oh,” says the witness to the judge.  “There is one other thing I would like to say.”

The witness is the father of the respondent in a civil protection order hearing.  He is an old man and he is angry.  The judge has given him tremendous latitude in testifying about every complaint he has ever had against my client, the petitioner in this case, a woman who has asked for an extension of a protective order she took out last year against her former boyfriend.

I understand that the rules of evidence are a little bit more relaxed in this type of hearing.  I also understand the judge giving an unrepresented party a little extra latitude.  But this has been ridiculous.

The respondent has just finished his “cross examination” of his father, although there weren’t many questions, mostly ramblings, and the father is getting up from the witness stand when a last thought occurs to him. There is one other completely irrelevant piece of poison he would like to share with the court.

The judge grimaces when I stand up yet again to object:  “There is no question on the floor,” I say.

“Overruled,” the judge says.  She looks back at the old man.  “What else would you like to tell the court, sir?”

Although I refuse to look at him, I can hear the respondent chuckle at the table next to me.  He is convinced he has won this case.

I am not worried, and it occurs to me later that the judge had already made up her mind to grant our motion by the time she started to overrule my objections.  She decided to give the respondent the opportunity to make his case before she ruled against him. That way he could never claim he hadn’t been heard.

But I am concerned about having my client further humiliated with completely irrelevant – but embarrassing – details of their relationship.  After all, her family and friends are sitting in the gallery behind us.

“Thank you, your honor,” the old man says.  “I wanted to let you know that, before this hearing, the petitioner’s lawyer threatened us in the hallway.”

I do my best to remain expressionless.  The judge too is unfazed.  “He threatened you?”

“Yes,” the man says.  “Outside in the hallway, before this hearing started, the lawyer told my son he would face criminal charges if we didn’t agree to extend the civil protection order.”

The judge takes a moment to consider this.  “Well,” she says finally.  “With arraignment on criminal charges now set for next month, I would say that was a pretty fair assessment of your son’s situation.”

Afterward, standing outside in the hallway, my client looks drained but relieved.  These things are always more difficult than expected.  “Never mind,” says my client’s father.  “She is a big girl who makes her own decisions.  We got the outcome we wanted.  And I am not concerned about anything I heard today.” My client smiles weakly.

The father is being charitable.  Even with the adrenaline leaving my body, I find I am still angry. I am annoyed with the court for letting in all sorts of hurtful but irrelevant evidence.  The respondent had been trying to embarrass – to punish – my client for filing the motion to extend the protective order.  The court became complicit the moment it began overruling my objections.  I am also concerned about the vague threat the respondent made at the end of the hearing.

I remember once again why, apart from an occasional civil protection order, I don’t do civil work.  There is too much ado about too little.  I realize also that I am not used to sitting on that side of the courtroom – representing the accuser – and the experience has given me a tad bit more empathy for the poor, unsuspecting civilian witnesses who face a defense lawyer’s wrath.

Over at the Daily Beast, Jessie Ellison describes three signs that the military might finally be forced to  “confront its rape epidemic.”  First, Secretary of Defense Leon Panetta announced on Friday that he will issue “very direct guidance” in the coming months to reduce sexual assault in the military.  Second, a new bill introduced by Congresswoman Jackie Speier of California to strengthen protections for victims of sexual assault within the military had garnered more than 50 co-sponsors within 24 hours.  Finally, Susan Burke, the lawyer (also my wife) representing 28 plaintiffs in Cioca v. Rumsfeld, had a “surprisingly good day in court.”

According to Ellison, Cioca v. Rumsfeld is a “landmark case” that charges former defense secretaries Robert Gates and Donald Rumsfeld with failing not only to take action on the problem but also ignoring congressional mandates. Writes Ellison:

[W]ithin the halls of the wood-paneled federal courtroom, Burke’s battle showed similarly unexpected promise, with Justice O’Grady declining to grant the motion to dismiss, filed by Department of Justice attorneys on behalf of the Department of Defense, and shaking his head with apparent empathy as Burke detailed how some of her plaintiffs had been “forced to live alongside their rapists, forced to salute their rapists every day.”

But O’Grady didn’t dismiss the defense attorney’s motion either – instead, he stalled.  “How do I get around what I believe is a clear mandate [from the Supreme Court] to not involve the court in what clearly are military oversight issues,” he asked Burke.  “You understand my problem here?”

“I do, your honor,” Burke responded.  “I understand that this is rocky terrain.  But rape and sexual assault are not incident to service.  It’s nothing you sign up for.  I urge you to give it serious thought.”  “O’Grady pledged to do just that, promising to deliver his judgment as soon as he could – likely within a few weeks, Burke estimated – but acknowledging that it wouldn’t be “a pleasant task.”  

Post-Script:  Although I am always the proud husband, Susan herself is not so impressed.  Progress on three fronts, I say to her after I’ve read the Newsweek piece.  Yeah, she says, these things tend to go in cycles.  Just think of the flurry of activity after Tailhook.  But where is the real change?

It’s rare that we get a video this good, the prosecutor tells me as he hands me the DVD.  Usually with the metro cameras, he says, they are on the other side of the platform and you can barely make them out.  In this case, the whole thing happened right in front of the camera.

He is not gloating when he says this.  He is simply being matter-of-fact.

It is usually far more damning to the defendant when you can see the actual incident. It is one thing for the witness to get up on the other stand and describe what happened.  It is another when the judge or jury can actually see it for themselves.

But in this case I am not surprised by what I see the suspect – allegedly my client – do.  What surprises me is what other people do.

It is the tail-end of rush hour at a metro stop.  Trains are still coming and leaving the station.  The incident does in fact happen right smack dab in front of the camera although the prosecutor is wrong about how easy it is to make out the suspect’s features.

Lines of people flow from an open train door toward the exit.  Commuters waiting for the train pace back and forth. If you press fast forward, they scurry around in jagged paths that remind you of an old movie with the speed set too fast.

Some glance over at the incident taking place there in front of the escalator – hmmm, what seems to be going in here — and continue on their way.  A man arriving at the station comes within a couple of feet of the altercation and for a moment you think he might intervene.  He decides against it.  He steps around the two figures, now wrestling on the ground, and walks to the other side of the platform.  He doesn’t look back.

Your client is 19 years old.  She weighs 105 pounds and stands under five feet tall. Having been arrested for a minor offense, she sits handcuffed in a room surrounded by police officers. Her eyebrow is bleeding from a cut she suffered from being thrown up against a chain link fence.

All the police officers are male. They are twice the size as she.  They are experienced professionals.  And they are armed.  In a moment of bravado you have to admire, a defiance born of anger, humiliation, and helplessness, she tells one of the officers that she will kick his “sorry ass.”

She now stands charged with threats to do bodily harm, a misdemeanor offense in D.C. punishable by up to 6 months in jail.  Should she be convicted based on this spontaneous outburst and these simple words?

It is rare that I prefer anything having to do with criminal justice when it comes to Virginia.  Virginia’s statute on criminal threats is a rare exception.  Unlike D.C., a simple threat by words unaccompanied by anything else is not a separate offense in Virginia.  The Virginia statute is limited to written threats.  Oral threats to do bodily harm fall under the simple assault statute where they belong.

Not so in D.C.

According to Section 407 of the D.C. Crimes Code, it is illegal to threaten to do bodily harm.  That is the extent of the language describing the underlying offense.  The rest of the one-sentence section deals with punishment.  There is no definition anywhere in the statute as to what constitutes a “threat.”  Courts have had to turn to dictionary definitions to try to ascertain what the legislature had in mind.

There is also no language on mental state– no mens rea – modifying the physical act of uttering the threat.  The federal statute on threats requires that the conduct be done “knowingly and willfully.”  And in Pennsylvania, the degree of menace required is suggested by the very title of the offense:  “terroristic threats.”

Again, not so in D.C.

Finally, there is no distinction between a misdemeanor threat, punishable by up to 6 months in jail, and a felony threat, punishable by up to 20 years in prison. The language describing the nature of the offense in both instances is virtually identical. This creates widely disparate punishment for precisely the same conduct.

You might assume that the difference between felony and misdemeanor threats lies in the degree of bodily injury implicated (i.e., bodily injury in the case of a misdemeanor threat and serious bodily injury in the case of a felony threat). But you would be wrong. Again, the statutory language is virtually identical, and the D.C. Court of Appeals has used both formulations for both felony and misdemeanor threats. The end result is that the prosecutor has enormous discretion in deciding which charge to pursue.

The statute has already withstood constitutional challenges on the basis of both vagueness (people need to know what type of conduct is prohibited) and breadth (the statute cannot criminalize innocent behavior, including protected speech). As it currently stands, the statute could encompass everything from an earnest threat to hurt someone – the type of activity that should be proscribed – to idle banter between friends.

It is the inchoate nature of the statute that bothers me. Taken out of context, any type of threat to do someone bodily harm could be argued to meet the plain language of the statute. Ours is a great but not perfect world. Selectively subjecting people to criminal liability for uttering the types of things that are said all the time verges on the ridiculous.

“Sexual misconduct has no place in the university’s community of trust.”

So says Patricia Lampkin of the University of Virginia (U-Va) in describing the university’s proposed new rules on sexual misconduct. Having come under harsh criticism nationwide for having failed to prevent the murder of 22-year-old Yeardley Love at the hands of another U-Va student, U-Va just became one of the first schools to act on new guidelines released by the U.S. Department of Education.

Under the proposed new rules, alleged victims of sexual misconduct at U-Va will no longer be required to present “clear and convincing” evidence to prevail in the school’s judicial system. Cases under the proposed new rules will be decided instead by a preponderance of the evidence standard; in other words, whether it is more likely than not that the misconduct occurred.

The definition of sexual misconduct will be broadened to include relationship violence, cyberstalking and recording or transmitting sexual images.  Existing limits on time and geography will also be abolished, thereby “freeing students to bring complaints about incidents outside Charlottesville and to pursue cases from years past.”

It is in pretty hard to disagree with Lampkin’s statement.  Who doesn’t want to protect our young people from sexual predators on campus?

The problem is that the statement ignores the other young people on our campuses who will also be impacted by the proposed new policy:  those students who are falsely accused of sexual misconduct.

School administrators and the well-meaning young people who participate on student disciplinary committees are notoriously ignorant of basic due process protections. Proceedings are not recorded or transcribed. Students who are accused of sexual misconduct are often pressured to proceed without the benefit of legal counsel; they make ill-considered decisions and statements that could later come back to haunt them in a criminal prosecution. And, as long as the accuser and the accused both remain on campus, there is often pressure to come to a quick judgment.  People don’t seem to understand that there is a reason criminal prosecutions take so long.

In issuing the new guidelines to “empower victims of sexual misconduct on campus,” the U.S. Department of Justice cited statistics which show that nearly one young woman in five will be the victim of sexual assault or attempted assault at college. The Department also cited an investigation by the Center of Public Integrity which found that many accusations end in “nominal academic penalties or no punishment at all.”

In other words, if you don’t like the numbers nationwide, you can achieve a different outcome by jiggering with the equation, even if this means eliminating basic protections.

The problem is that, by reducing the burden of proof and eliminating jurisdictional and other due process protections, you are only going to replace one problem with another.  You are going to compound the personal tragedy of a young person sexually assaulted with the systemic injustice of another young person wrongly penalized.

My wife’s military rape case has received lots of attention in the media since it was filed in federal court on Tuesday.  Most recently, Susan appeared this morning on the Diane Rehm show on NPR.  In addition to the ones I posted earlier, here are some additional links:

New York Times

CNN Piers Morgan Tonight

NBC Nightly News/MSNBC

ABC News

BBC

Yahoo News/Associated Press

Military Times

AOL News

Daily Mail (UK)

United Press International

Voice of America

Democracy Now

Ms. Magazine

Albert Haynesworth is making things far too easy for those of us who love to dislike him.

My beef with Haynesworth has been that he accepted a $100 million contract to play for the Washington Redskins and then decided he didn’t want to play. He didn’t like the new defensive scheme instituted by new coach Mike Shanahan and sat out training camp.  He appeared winded and out of shape when he did make it onto the field. Most famously, he lay on his stomach in a key game against the Philadelphia Eagles as Michael Vick danced a few feet away from him and then threw a touchdown pass because, well, Haynesworth had a charley horse.  And if we didn’t buy that explanation, he added that he thought he heard the ref whistle the play dead.  He apparently believes that if one fib is good, two fibs will be even better.

A couple of weeks ago, he was charged with assault in Fairfax after a road rage incident.  According to the other driver, Haynesworth got out of his pickup truck after the two drivers jockeyed for position at a traffic light and punched the other driver in the nose.

Now we learn that Haynesworth has also been charged with sexual assault after a separate incident last Sunday.  According to WRC Channel 4, Haynesworth was sitting in the restaurant of the W Hotel in D.C. at one-thirty in the morning.  When the waitress brought him his check, he asked her if he could put his credit card in her blouse.  She said yes, and he then used this excuse to fondle her breast.

At this rate, I am going to have to create a separate category on this blog just to deal with Haynesworth’s problems.  Better yet, I am hoping he will soon be traded, making him another team’s problem for some other blogger to worry about.  How about sending him to the Dallas Cowboys?  Dallas is an NFC rival of the Redskins.  What’s more, I understand that B.W. Barnett may soon be relocating to that great city.

Brandon Banks, the Redskins’ electrifying punt- and kick-returner from last season, suffered a minor wound yesterday after he was stabbed outside a D.C. nightclub.  According to the Washington Post, Banks was trying to break up a fight between two friends when one of the men – Jason David Shorter – opened a folding knife and began “swinging wildly.”

Although still hospitalized, Banks is expected to make a full recovery.  Shorter has been taken into custody and is now charged with assault with a dangerous weapon.  Assault with a dangerous weapon in D.C. can be generally defined as the injury or attempted injury of another person using a weapon that is designed to be or can be used to inflict death or serious bodily injury.  The maximum penalty for this offense is 10 years of incarceration.

I have written about Albert Haynesworth and his troubles with the Washington Redskins. And I have written about simple assault in Virginia. Now I write about Albert Haynesworth AND simple assault after Haynesworth was charged with the offense following a road rage incident Wednesday in Reston.

According to the Washington Post, the driver of another car claims that he was driving southbound on the Fairfax County Parkway when a pickup truck began to tailgate him.  The two vehicles jockeyed for position.  When the two vehicles came to a stoplight near the Reston Hospital Center, the driver says that a man he recognized as Haynesworth got out of the pickup truck and came to the driver’s side of his vehicle.  “You’re not so tough now,” Haynesworth reportedly said and then punched him in the nose.

The other driver tried to follow Haynesworth’s truck after the incident but lost him.  So he called 911 instead.  After picking out Haynesworth from a photo array, the driver and a Fairfax police officer then went to a magistrate to obtain a warrant for Haynesworth’s arrest.

If the other driver’s allegations are true, Haynesworth’s actions would certainly satisfy the elements of assault and battery.  The offense, as defined in Virginia, has two elements.  First, the prosecution must prove that the defendant willfully touched another person without excuse or justification. Second, the prosecution must prove that the touching was done in an angry, rude, insulting or vengeful manner.  The penalty for a conviction of this offense is up to 12 months in jail and/or a maximum fine of $2,500.

The Post quotes Fairfax Chief Deputy Commonwealth’s Attorney Ian Rodway as describing the offense as the equivalent of a traffic ticket.  By suggesting that Haynesworth could face nothing more than a fine and points on his license if convicted, Rodway’s statement is very misleading.  Although Virginia does punish some traffic offenses, such a reckless driving, as class 1 misdemeanors (and, in some cases, as class 6 felonies), assault is very much a criminal offense.

When I was in high school many, many years ago, using a plastic straw to shoot spit balls at the back of another kid’s head would have drawn, at the very most, a stern rebuke from the teacher. In today’s hyper-sensitive society, the straw would be a weapon, the spit-ball a “projectile,” the head a “vital organ,” and the same activity would lead to criminal charges and expulsion from school.

According to the Washington Post, 14-year-old Andrew Mikel used a pen casing to shoot plastic pellets at other kids in his high school in Spotsylvania, Virginia. Mikel was bored and looking for some attention. The three students he managed to hit with a plastic pellet propelled by his breath “flinched” and “looked annoyed.”

The school could have sent Mikel to after-school detention. They could have sent a nasty note home to his parents. Instead, school officials had Mikel expelled from school. They also called the deputy sheriff, and Mikel now stands charged with three counts of misdemeanor assault.

At first glance, Mikel’s actions would appear to meet the elements of misdemeanor assault in Virginia. If battery is the unlawful touching of another, assault is generally defined as the putting of another person in reasonable fear or apprehension of that unlawful touching. In this case, the plastic pellets did make contact with the bodies of three other students. And I have no doubt that this contact was unwelcome.

But Mikel’s foolish acts were clearly not what the Virginia legislature had in mind when it enacted the assault and battery statute under Section 18.2-57 of Virginia’s criminal code. And they were not what Virginia courts have had in mind in finding defendants guilty of the offense. According to one case which defines the offense, assault is “an attempt or offer, with force and violence, to do some bodily hurt to another by means calculated to produce the end if carried into execution.” The case uses the leveling of a gun at another person as an example of an action that could qualify for a conviction underneath the statute.

According to the Post, the federal Gun-Free Schools Act mandates that schools expel students who take weapons to school. The definition of weapon includes handguns, explosive devices, projectile weapons. Since when does a pen casing and breath-propelled plastic pellets constitute projective weapons? Where is the common sense of school officials and the sheriff’s office in Spotsylvania?

Said John Whitehead, president of a civil liberties organization in Charlottesville: “What happened to Andrew Mikel is an example of how oppressive zero-tolerance policies have become. School officials have developed a very dangerous mind-set that allows virtually no freedom for students, while at the same time criminalizing childish behavior.”

My first thought upon reading about this case was that I should probably turn myself over to law enforcement authorities in Massachusetts for committing similar offenses when I was Mikel’s age. And I could do this without fear of any consequences: I am pretty sure that the statute of limitations has long since passed.