A Dallas judge is looking to move assault-family violence (AFV) cases to trial faster. Moving cases faster is always a popular idea, the public loves it, it sounds good and is a common refrain from judicial candidates (“this court is backlogged, I’ll fix it!).
I used to prosecute family violence cases, and I’ve defended them for over a decade now. The truth is that many family violence arrests are for situations that aren’t going to result in a guilty verdict. The police arrive and both parties say the other started the fight, both have similar injuries. The police have to make an arrest, so they usually arrest the guy on weak evidence, and the lawyers get to sort it out on the back end.
Assault family violence cases are tough to prosecute. There are legal defenses to assault that apply in AFV cases (self-defense for example). Family violence arrests often cases involve drug/alcohol use/abuse by both parties. You are also dealing with a relationship, and romantic bonds between homo sapiens get crazy sometimes.
When I started as a prosecutor nobody texted much, but today as soon as a defendant gets out of jail the texts begin over what happened, who is to blame, what to do about it. Texts/emails/facebook messages can become evidence for either side. So what used to private messages of people being awful to their partner are now recorded forever on your iPhone. If the argument was about infidelity, then the case can turn Jerry Springer really fast.
The most difficult challenge for the State is that the complaining witness wants the case dismissed and is willing to move mountains to make that happen. Many couples stay together when the cops leave. These complaining witnesses aren’t coming to court, and they will sign affidavits of non-prosecution to “drop charges” or just ignore the State’s process server when it comes time to go to trial.
Let’s look at the numbers to see how this works out.
Here’s a quote from the DMN article-
Last year, 3,850 were resolved. Nearly 900 led to convictions and 29 ended in acquittals. More than 2,100 were dismissed and in 529 cases, the defendants had a type of probation the allows them not to have a conviction if they successfully complete the terms of probation such as anger management and batterer’s intervention classes.
So out of 2100/3850 = 54% of resolved family violence cases were dismissals. We pass the buck down to a misdemeanor prosecutor who has to dismiss the case.
One problem with the current family violence system is that the stakes are extremely high for the defendant. AFV one of the worst misdemeanors you can plead guilty to and has collateral consequences for employment, gun ownership, child custody cases to name a few. So defendants have an incentive to fight forever on these and go to trial.
Since couples are likely to stay together, the complaining witness doesn’t want all these terrible things to happen to the Defendant, because that person will become largely unemployable and the thousands of dollars in fines/fees, etc. could be better spent on their household bills. The stakes are amazingly high, and the evidence is often feeble. Ergo, a 54% dismissal rate.
What we need are more options for these weak misdemeanor assault family violence cases. We need a process that acknowledges that a conviction and trial aren’t always the best choice for defendants or victims in many cases and that many couples stay together.
Until we change the arrest, prosecute, dismiss cycle of AFV cases, making them go faster may not change much. It might actually lead to more dismissals because trying assault cases is tough already for the State, trying them faster might be impossible.