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Friday, September 12, 2014

A Former Prosecutor's Take on Domestic Violence and Ray Rice

Ray Rice’s domestic violence situation has dominated the news this past week. There are so many different aspects to this story, but the one I want to focus on today is the non-NFL, legal side of this case. In May of this year, Rice entered into a plea bargain with the Atlantic County Prosecutor’s Office. Rice would enter into a diversionary program to help with his anger issues as well as he needs to stay out of trouble for a year and in exchange, the prosecutor would drop all charges if Rice successfully completed his end of the deal. This pleaagreement was heavily criticized. Seemingly, everyone agreed this penalty was too lenient, with many clamoring that Rice deserved jail time.  Due to public outrage, this past week the NewJersey State Senate opened up an investigation into the Atlantic County prosecutor’soffice for how they handled Ray Rice’s case. I’ve read a lot of articles regarding Ray Rice, and none really delve into the nuance of his legal proceeding or domestic violence legal proceedings in general. I wanted to do that today and share my experiences as a prosecutor handling domestic violence cases.

To give you some of my qualifications, I am a licensed attorney in the State of Illinois and have been since November of 2012. During my last semester of law school, I interned at the local State’s Attorney’s Office (SAO) in the domestic violence division.  After law school, I spent about a year working as a prosecutor in a small Illinois county. While working at that SAO, my job was essentially to prosecute everything that was not a felony (a felony is a crime which, if sentenced, could land you more than a year in jail). I prosecuted everything from dog bite cases to DUIs to, yes, domestic battery cases. I have since left that SAO and I am now working as a private criminal defense attorney. Oh, and I’m a huge NFL fan.

During my time as a prosecutor, four cases of mine were eventually decided by a jury. Out of those four cases, two of them were domestic battery cases. Out of those two cases, I lost both of them. I have had a handful more domestic battery cases go to trial, but those trials were bench trials- trials decided by a Judge and not a jury. I never won a single one of those trials either. While it may sound like I’m a bad litigator, (I’m not) the reason I never won a domestic battery trial is because they are extremely difficult to win. I would have rather tried a DUI case with no proof of the driver’s Blood Alcohol Content than a domestic battery case. Often times, it would be the policy of my office to reduce a domestic battery to a normal battery just so our office could guarantee some sort of punishment for the defendant.

For those of you unfamiliar with the nuances with the legal system (which I’m sure is all of you reading this article), let me actually explain what exactly a domestic battery is. A domestic battery is a battery committed against a family member. A battery is any intentional touching that causes bodily harm. Getting punched in the face is an example of a battery because you’re getting intentionally touched (the attacker meant to punch you; it’s not an accident) and it causes you bodily harm (getting punched hurts!). In Illinois, and in most jurisdictions, a domestic battery is a misdemeanor (A misdemeanor is a crime which has the possibility a jail sentence, but the maximum amount of time you can spend in jail is one year). Domestic battery is the worst kind of misdemeanor in Illinois (a Class A offense), and is subject to the harshest misdemeanor penalties, but a misdemeanor nonetheless. However, a domestic battery can become a felony where the defendant causes what is called “great bodily harm”. “Great bodily harm” can be tough to define, but in laments terms, it is harm or pain that is really, really bad- like getting punched so hard that you’re knocked unconscious bad.

As I mentioned earlier, winning a domestic battery case as a prosecutor is hard. Really, really hard. This is a fact that many people don’t know, and certainly most sports writers are unaware of. Often times in a domestic battery case, the victim would refuse to testify against the defendant. Many times, the victim would refuse to speak with our office. When the victim would speak with our office and with myself, they would tell a different version of what happened than what they told the police officers at the time of the domestic battery. Additionally, it is pretty easy for a defense attorney to make the victim look like the aggressor or attack the victim’s character to help lead to an acquittal. Further, at least in Illinois, the defense can drag the victim’s name through the mud all they want at trial, but for a prosecutor to do the same to the defendant, the prosecutor has to take procedural steps before the trial begins,  and even still, the prosecutor can only bring up specific instances of the defendant’s past.

Cook County prosecutors probably have the biggest disadvantage in Illinois when it comes to prosecuting domestic battery cases just because of how the system is against them in every step of the way. I have spoken extensively to Cook County prosecutors in Chicago whose sole job it is to prosecute domestic battery cases. They have a difficult job because cases almost always have to be tried the first time the defendant is in Court. Where I worked, the Defendant was just read his or her rights during the defendant’s first appearance and both the defense and myself was given plenty of time to prepare a case. Often times, if I needed a continuance, I was granted one. Cook County prosecutors are not given the same luxury and very rarely will they be granted a continuance. Further, if the victim does not show up, the Judges will automatically dismiss the case. I know of many jurisdictions in Illinois that handle their domestic battery cases that way. If a victim never showed up for me, I almost always was granted a continuance, but my jurisdiction was the rarity. Prosecutors are forced to dismiss domestic battery cases on a regular basis, and I’d bet you that you wouldn’t have to look too far to find domestic battery prosecutors who say they’ve dismissed more domestic battery cases than have pled out or taken to trial. Even if everything went the prosecutor’s way- the victim showed up and was willing to testify against the defendant and the prosecutor was completely prepared to try the case- both Judges and juries would almost always come back with a not guilty verdict. I’m confident the Atlantic County Prosecutor's Office runs similar to how the Cook County system runs rather than how my former office ran.

Further, the burn out rate for domestic violence prosecutors is extremely high. I have never met a domestic violence prosecutor stay in that position for over a year. My mentor in law school while I was working in the domestic violence division soon left her position to work in another SAO because she couldn’t handle working solely on domestic battery cases. The prosecutors who work in Cook County say their domestic violence division is a constant revolving door of attorneys. Often times, new hires will be placed in the domestic violence division because it’s the job few people in the office want. Even I got burned out and disillusioned by domestic violence cases, and I dealt with a litany of crimes.

So I can easily see a scenario where getting a domestic abuser like Ray Rice entering into a diversion program feels like a win for a prosecutor. Even with the video footage, the prosecutor’s did not have the cooperation of the victim, which, in my mind, is the most important piece of evidence you need a normal domestic battery case. After the domestic violence incident, Palmer still married Rice, and after the full video leaked and the Ravens cut Rice, Palmer posted on Instagram a message in support of her husband. It would not surprise me if Ray Rice and his legal team put on a defense similar to the officers who beat up Rodney King, and like the defendants in that case, win. Further, Janay Palmer was initially arrested along with Rice after this incident. While we know now that she never should have been arrested and charged to begin with, don’t think that Rice and his legal team (with Palmer’s help) wouldn’t have made that the focal point of their defense.

With all of that being said, having a tough time at a trial (or having difficulties throughout the legal process) should be no excuse for the cushy deal Rice received. Plus, the prosecutor’s still had the smoking gun- the video of the domestic attack- in their possession. Most prosecutors dream of having evidence as good as that elevator camera footage, and that video alone should have been a great bargaining chip for a tougher plea bargain. Dropping the felony domestic battery to a misdemeanor in exchange for a high fine and some jail time seems fair in both hindsight as well as at the time. Ray Rice and the Atlantic County prosecutors seemingly worked out a deal very early in the process, and while I know firsthand how nice it is to have cases leave the criminal justice system soon after they enter it, Ray Rice’s case in which you have evidence of the attack, in my humble opinion, should never be one of those cases.

When I was working as a prosecutor, the philosophy of the office I was working in was to always try cases and always be willing to take cases to trial. Even if we had a bad case (which are really the only cases that go to trial; good cases, from our perspective, enter into plea bargains), we took them to trial. The reasoning behind that philosophy was that even if we lost, at least we tried our hardest. And if a jury didn’t side with us and found a defendant not guilty, well then that really wasn’t our fault the defendant was back on the street; it was the jury’s. Now our office had the luxury of having this philosophy because we were so small and our county was so small, and it’s easy to say all offices should have that philosophy. However, the vast majority do not have that luxury. When you’re in that world and you have cases upon cases piling up on your desk, and you know the odds of you winning the case at the end, it becomes easier to see why the prosecution made the deal with Ray Rice that they did.

Further, even if the prosecution did win a jury trial, there is no guarantee that Rice would have served a day in prison. People like Keith Olbermann can demand Rice serve time until he’s blue in the face, but it’s even more rare for defendant’s to receive jail time than it is for a prosecutor to win a domestic battery jury trial. Panthers DE Greg Hardy, who was convicted by a domestic battery by a Judge during the summer of 2014, wasn't even sentenced to jail. During my time as a prosecutor, the only jail time I was ever able to get for a defendant was during cases where the laws had mandatory minimum jail time attached to them, or the defendant had spent so much time in jail before the trial and couldn’t afford to get bailed out that he had plenty of credit for time already served. I never once had a case where the defendant received the maximum time in jail. Just because a jury finds someone guilty does not mean the jury also determines punishment. That’s a myth perpetrated by the movies. The jury’s sole job is to be a fact-finder and apply what they believe the facts are to the law they’re given. It is the responsibility of the Judge to determine the sentence. I am dubious that the Judge in Ray Rice’s case would have sentenced him to jail for a first time offense with Rice in counseling. You would hope a Judge would have included jail time in his sentence for Rice, but I really doubt he would have.

Ultimately, Ray Rice received an extremely lenient punishment. I can understand, and I hope you can understand as well, the difficulties the prosecutor faced while dealing with Ray Rice’s case. However, I do not believe it justifies the result that occurred. I think a State Senate investigation into the Atlantic County’s SAO is a good thing. I believe an environment that encourages plea bargains and dissuades against trials, especially in instances like Ray Rice’s case, ultimately is contradictory to justice. An overhaul of the Atlantic County’s SAO’s policies will undoubtedly make the lives of all the prosecutors in that office more difficult because it will require more work; however, these prosecutors have an obligation to uphold law and order and justice, and they need to do what they can to make sure those obligations are met. I believe the backlash against the Ray Rice plea deal is justified, but I also would like the masses to get a better understand of the entire process as a whole before rushing to judgment.



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