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.


























Two major online publications--Salon.com and Slate.com--recently did articles about the men's and fathers movement. The articles discuss various aspects and actors in the movement, and also quote and misquote me. This series of posts will comment on the articles and also straighten out certain misrepresentations.
Kathryn Joyce of Slate.com is a feminist writer who has written much about what she calls the "Christian patriarchy" movement. She told me she was doing a story about George Sodini, who she (accurately) describes as "the Pittsburgh man who opened fire on a gym full of exercising women this August, killing three and leaving behind an online diatribe journaling his sense of rejection by millions of desirable women."




