Second Chance 2.0 Based on Myths and Falsehoods

man in jail

photo source: pixabay

Connecticut has long been known as the land of second chances. I am often asked, while conversing with Massachusetts’ defense attorneys, whether the countless prison diversionary programs Connecticut offers to lawbreakers are reality or just an old folktale. As I list the various programs, those lawyers look at me in disbelief. The fact is that the number of nonprison options in the Connecticut criminal justice system far outnumber those in most other states. It’s simply not true that first-time or petty offenders are being hauled off to jails and locked into a lifetime of darkness by the truckload; those falsehoods are being peddled by those whose agenda is to shrink the Connecticut criminal justice system.

There’s real danger embedded in Gov. Daniel Malloy’s lengthy Second Chance 2.0 proposal that’s now before the legislature. While most of us were busy working and tending to our daily lives, the Malloy administration was coming up with ideas for whittling away at the justice system as we once knew it.

What might the “justice system” look like if Second Chance 2.0 is approved?

First, set aside the bill’s magical wand making 20-year-old criminal offenders still “juveniles” in the eyes of the law. (I mean, really, how exactly is a 13-year-old the same as a 21-year-old? And let’s not forget that crime victims are, for the most part, left out of the juvenile justice system, unable to participate in the ever-so-secretive juvenile courts.) The bottom line seems to be that various committees and commissions seem intent on morphing the justice system into an oversized day camp for criminals. Perhaps we can legislate handing out shiny blue metallic stars for those who complete all the probationary sentences being envisioned. Also troubling is the proposal to eliminate bail for a wide range of misdemeanor offenses. It is unclear how simply keeping people out of the justice system will rehabilitate offenders or, more important, keep our communities safe.

Most of the arguments in favor of Malloy’s Second Chance 2.0 are based on fiction or myth. It’s become almost conventional wisdom that prisons are full of accused jaywalkers who simply can’t afford to pay bail. Despite the rhetoric, there is currently mechanisms to allow offenders who cannot afford their bail to have their cases reviewed in court: it’s called a bail hearing. Next, the idea that all misdemeanors are all minor offenses, and thus no bail is necessary, is ignorant at best. There are, on the books, many misdemeanor offenses whose perpetrators are a threat to the community, including assaulting a blind, disabled or elderly person; fourth-degree sex assault; custodial interference; and let’s not forget drunken driving.

To be sure, the bail process and the bail bondman serve an important public safety function that seems to have gone unnoticed among the Malloy administration and legislators. Every day, bail bondmen hold accountable criminal defendants and ensure their presence in court. The bondmen are often responsible for going into the community to retrieve defendants who have jumped bail. On average, the bail bond industry in Connecticut arrests approximately 3,000 bail jumpers annually (one-third charged with felonies and the rest with misdemeanor offenses) at no cost to the state. Unfortunately, the community often assumes the bail bonds industry is simply a cash-in, cash-out industry. However, the industry offers an extra measure of accountability to an already overwhelmed justice system. The bail bond community works hand-in-hand with authorities to locate a defendant who is on the run, thereby providing an additional safety mechanism for the crime victim community. These offender capture units are 100 percent sponsored and paid by the bail bonds industry. There are no equivalent capturing units established by the governor’s bill. Simply put, those responsibilities will largely be transferred to the state and yet there are no funds being attributed to these services.

Also a myth is this idea that people arrested for supposedly minor offenses will show up in court because they have ties to the community, through family and jobs. The fact is that, in Connecticut, approximately 20,000 individuals are charged with failure to appear (FTA) every year. And that number underestimates the problem. Most offenders are not charged with FTA until they have failed to show up in court twice. The first FTA usually warrants only a letter, reminding the offender they have missed a court date and asking them to appear at a future date. With the so-called bail reforms, it seems highly likely that the number of FTAs will skyrocket, as there will be no monetary incentive to keep a court date.

So maybe what the 2.0 in Second Chance 2.0 means is that the state will double the number of outlaws roaming free, unaccountable for their criminal enterprises. •

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

 

This article was originally posted at Connecticut Law Tribune

 

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Erin Andrews’ Case Puts High Value on Privacy Rights

Erin Andrews

photo source: wikipedia

Personal privacy is an important right of all people. It’s a right so fundamental that it is often taken for granted. We go about our daily lives unaware of our own reliance on the presumption of our right to privacy. However with the advancement of technology and the explosive use of social media and cellphones with video capabilities, the right to privacy has come under attack. In essence, we are all constantly under surveillance to some degree or another. One clip, one video, one image can last a lifetime on social media. And yet there seems to be an agreement that certain venues or spaces are forbidden from this constant surveillance—or are they?

Recently, Fox Sports reporter Erin Andrews won a civil lawsuit against a stalker and a hotel and its management company in an invasion of privacy and negligence case. This case is important not only because it reinforces the premise that invasion of one’s privacy is a viable claim but, more important, that a facilitator of a privacy invasion can be equally liable for the invasion.

Here, the hotel in which the stalker took nude videos of Andrews through a peephole and the management company both were held accountable for the stalker’s invasion of Andrews’ privacy for their lack of protection of Andrews’ private information. Furthermore, the scope of the award—a jury awarded $55 million, most of it in punitive damages—indicates the harm was not measured by whether Andrews’ career trajectory was negatively affected but rather on the emotional and mental ramifications caused by the privacy invasion. In other words, privacy is a right which, when impeded on, is compensable based on mental and emotional harm for the intruder and for the facilitator.

Here are the facts of the case:

Andrews traveled frequently for her job and stayed at various hotels throughout the country. Unbeknownst to her, she was being followed by an individual with whom she had no previous relationship or contact. While Andrews was in Nashville in 2008, the stalker telephoned a Marriott hotel, requested the room number for Andrews and was provided with the room number. The stalker then requested to be placed in the room next door. Once there, the stalker listened for Andrews to take a shower and then he went out in the hallway. He physically removed the peephole mechanism and videotaped Andrews changing clothes for approximately four minutes. No one from the hotel stopped the stalker who was plainly visible videotaping through the peephole. The video was then uploaded to the Internet, where it has been viewed millions of times and remains today.

Putting aside for the moment the disturbing videotaping of Andrews in her room, what’s equally shocking is the disclosure by the hotel of private information of one of its lodgers. Specifically, the hotel revealed Andrews’ room number and then honored a request of an unkown caller to be placed in the adjacent room. All the while, it never notified Andrews of the inquiries about her room location or the request of an unknown male to be placed next door.

At any given moment, a victim of domestic violence, harassment or stalking may be seeking refuge at a hotel. The ease at which this stalker was able to obtain the identity of a hotel room occupant and then gain access to an adjacent room is alarming and sent shock waves through the victim rights community. At a minimum, Andrews should have been alerted to the inquiry and, if she didn’t know this individual, should have been allowed to change rooms or be placed in another hotel.

By affirming that Andrews was staying at this particular hotel, by revealing the room number, by allowing an unknown individual to request the adjacent room and by not stopping him from shooting video for four minutes through an altered peephole, the hotel and management company were played a large role (49 percent according to the jury) in the facilitation of the privacy violation.

At the time, Andrews was making her way up the ranks as a sports reporter. Since the incident, she has continued to rise in her profession and is now also a commentator on “Dancing With the Stars.” And yet after learning in July 2009 that a video on the Internet depicted her naked, Andrews suffered and continues to suffer emotional harm. At her trial, she testified that she regularly is reminded of the video from individuals who mention it at sporting events.

It continues to be alarming just how public our private information is. While authoring this article, I reserved a room over the phone at the same hotel chain. In order to access my rewards number, I was asked to provide my name and ZIP code by the hotel operator. Once I provided the information (both easily accessible to the public), the operator then confirmed my identity by verbally providing my complete home address. There was no effort to confirm that I was really Michelle Cruz before my home address was revealed over the phone.

Just imagine if it had been a stalker making that call.

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

This article was originally posted at Connecticut Law Tribune

 

Judge Asked Wrong Questions to Baby’s Abused Mother

(photo courtesy of ViralSpell)

(photo courtesy of ViralSpell)

Obtaining a restraining order is not easy for a victim of abuse. Many times it takes weeks, months or even years for the victim to muster the courage and strength to ask the courts to protect her from an abusive partner. The victim often struggles with fears of trusting the courts and the terror of the offender’s reaction when he finds out that a restraining order has been sought. Sadly, for Adrianna Oyola, when she applied for protection, she was let down by the court.

Oyola is only 19 years old. She filled out an affidavit for a restraining order on June 17. She alleged that Tony Moreno, the father of 7-month-old Aaden, threatened to take the boy and make him disappear. She said she was afraid Moreno would hurt the child, who was ultimately killed when Moreno threw him off a bridge. Oyola said Moreno threatened to kill her and she was afraid to sleep.

During a June 29 hearing on the request for the restraining order, Superior Court Judge Barry Pinkus never asked Oyola for details of her allegations related to the father’s threats or concerns for the child’s safety. Rather, the judge glossed over the specifics, instead inquiring about the time frame of encounters between Moreno and Oyola. Had the judge asked specifically why Oyola was afraid for the baby’s safety, perhaps he would have better understood the victim’s concerns and not dismissed them as a “custody dispute.”

Most practitioners who work with abuse victims understand that many do not respond affirmatively when asked questions such as, “Are you abused?” Often, the victim doesn’t see herself in that light. Judging from the transcript of the restraining order hearing, this appears to be true in Oyola’s case. During the hearing the judge asked Oyola if she felt abused. When she said no, he proceeded to cross-examine her. At one point, he asked: “Are you afraid he is going to come over and beat you up?”

Most abuse victims would not answer “yes” to that. Domestic violence can be subtle: an open-handed slap in the face followed by a peppering of apologizes and promises unmet. A judge educated in the complexities of domestic violence asks questions to elicit descriptions of the extent of the physical contact and then draws his or her own conclusions regarding the future danger to the victim and her family.

Pinkus also neglected to inquire into police and Department of Children and Families involvement in the matter. Had the judge inquired, he may have learned that DCF was involved with the family and perhaps made himself more educated about the threats to Oyola and young Aaden. Additionally, the judge failed to inquire as to the length of the relationship and when Oyola’s concerns for her child and herself began. It appears that Oyola’s concerns began around or near the birth of young Aaden and that Moreno had focused his anger, frustration and jealousy on the child.

In short, it’s evident from the transcript that there were real concerns that Moreno posed a risk to mother and child. However, the judge seemed to ignore vital information and instead demeaned Oyola and dismissed her concerns. He seemed at times more concerned with airing his apparent pet peeves about young parenthood than in gleaning information that would allow him to make an appropriate decision about the need for a restraining order. He doesn’t allow Oyola to address the statements made by Moreno, instead taking Moreno’s version as truth and recommending the parties obtain a custody order.

It’s not the first time that a judge has acted this way in a case that led to tragedy. A judge acted in a similarly dismissive manner when Tiana Notice sought protection. Notice was eventually stabbed to death by her former boyfriend in February 2009. Her death helped prompt a number of domestic violence law reforms in the state.

The restraining order process is not a platform for judges to sound off on lifestyle choices or parenthood decisions. The victim is vulnerable, frightened and seeking protection from the courts, not advice. Once the judge takes that role of moral authoritarian the victim immediately is left feeling chastised and mocked by the very system with which she sought refuge. It is a sad day for Connecticut to yet again revisit the flawed system of restraining orders in the aftermath of yet another preventable and horrific murder.

Judge Was Wrong to Order Grieving Mother Not to Cry

Grieving mother Ursula Ward

Grieving mother Ursula Ward (photo credit Brian Snyder/Boston Globe)

It amazes me to no end that in 2015 crime victims and surviving family members still experience injustice. More than 30 years after President Ronald Reagan announced the first Victims’ Rights Week, the criminal justice system is still slow to change and embrace the crime victim.

The subtle and not-so-subtle kind gestures and niceties provided to criminal defendants are often not extended to crime victims and family members. I guess I just always hoped we would be further along in the progression of how our justice system relates to crime victims. Sadly, I am constantly proved wrong in this regard.

Recently, during the 24/7 coverage of the Aaron Hernandez trial (we really should title this the Odin Lloyd murder trial, as he is the victim at the center of this case), I was proven wrong once again. One would think that with so many people watching, the participants in the trial of the fallen New England Patriots star would be on their best behavior. No so. Rather, it seems business as usual for the Bristol County courts in slugging out justice with no regard for the victims of crime.

Mother Identifies Her Dead Son

I bring your attention to Feb. 2. This was the day Lloyd’s mother, Ursula Ward, was slated to testify and identify her son. One can only imagine the days and nights before Ward’s testimony, the torture and sadness that must have befallen her. Unfortunately, Ward was in a collision course with Superior Court Judge Susan Garsh on that faithful day. Garsh cautioned Ward before she took the witness stand. In front of a packed courtroom, Ward was instructed to do the unthinkable—not cry. Specifically, Garsh instructed Ward that as she identified her deceased son’s body in a photograph taken by medical examiners she should “control her emotions.” How absurd! Apparently, the judge was overly concerned that Ward had, days before, left the courtroom, apparently upset, when photographs of her son were shown in court.

First, jurors are not so naive as to think that a mother of a murdered child—even an adult child—called on to identify her dead son from a photograph would not be upset. The reality is that jurors are savvy enough to be able to witness the tears and sadness of a still-grieving mother and not throw reason out the window. The fear of the judge that emotions are so prejudicial that they must be extracted from a murder trial is beyond reason. In fact, jurors regularly expect emotions from witnesses. When witnesses are devoid of emotion, a juror may in fact begin to wonder about the witness’ credibility and veracity, which is a far greater threat to the fair trial process.

Furthermore, it is pretty obvious Lloyd had been shot and killed and is a homicide victim. The issue at trial is not whether there was a heinous murder, but rather, did Hernandez commit the murder? And so whether a mother of a murdered son showing emotion on the witness stand should have little impact on the jury’s ultimate decision as to just who committed the murder. It is not as if jurors would suddenly believe that the murder of a family member is not an emotional event if Ward successfully refrained from crying.

Next, there’s the ridiculousness in thinking that one can control their emotions in such a situation. Garsh’s comments remind me of an old movie where an abusive father tells a young boy not to cry. Her comments were well-placed and outdated. The fear of emotions in a courtroom is a red herring. There is a place for emotions at trial. And the judge has a responsibility to treat all who come before her with respect.

Simple Victim’s Rights

It is simply Victims’ Rights 101 to treat the family members of a murder victim with respect and dignity, as they, too, are victims, thrust into the criminal justice system by the vicious and cruel acts of another. The crime of murder robs a family of a loved one’s life and leave open wounds that never heal. (Don’t kid yourself, there is no such thing as “closure.” That’s a concept developed to allow those in the justice system to sleep at night and not be haunted by the tragedies that march before them day after day.)

It has been more than 30 years since Massachusetts established its premier victims’ rights group, the Massachusetts Office of Victim Assistance (MOVA), and yet the maltreatment of crime victims continues. Being at the forefront of victims’ rights in many regards should guarantee that crime victims in Massachusetts can expect a certain standard of professionalism and respect from the court officer all the way up to the judge. Unfortunately, that does not appear to be the case in Judge Garsh’s courtroom.

This article was posted at Connecticut Law Tribune

The Individual Path of Crime Victims

path to justice, crime victim, criminal justice system

Many people gather their knowledge about our justice system from novels, television shows and movies. An entire multimillion-dollar industry has been build off of fictional depictions of the criminal justice system.

Forensic evidence processed in 15 minutes; witnesses produced in droves, flocking to the police to provide statements; convenience-store videos capturing crimes from impossible distances with precise details; confessions easily cajoled out of remorseful offenders; and prosecutors with endless resources. Sometimes the entertainment industry gets it somewhat right, other times not so much. (To be fair, there are some upsides to the increased interest in the criminal justice system, including an increase in the general population’s willing to pay more money for law enforcement.)

But the fictional justice system has had a negative side effect. It’s created unrealistic expectations among laypersons and jury pools nationwide. One of the most prevalent misconceptions is the public’s view of how guilty individuals and crime victims should act. In the fictional world, the crime victim is a helpless figure. However, in the real world, many crime victims are strong, outspoken and a force to be reckoned with.

I recall my own foray into the world of criminal justice as a young victim/witness advocate intern in a district attorney’s office. You see, I had had my own life experiences that allowed me to see the world through the realm of victimization. My experiences are a large part of the reason I choose and continuing to choose the field of law as my profession. However, long ago, I mistakenly believed that because of my life experiences, I understood the “victim’s position.” More specifically, I felt that because I had walked the walk and dragged myself up from the darkness of criminal victimization that I could then transfer my knowledge to other victims and be helpful. Don’t get me wrong, my experiences have helped me develop a keen understanding and compassion for victims. However, I later learned that my experiences, feelings and beliefs did not always align me with all crime victims. I was naïve.

I recall one encounter in particular. I remember feeling that I could connect with this person, as we had been victimized in a similar manner. However, I was not prepared for the victim not wanting to speak with me or pursue the criminal case. I remember at first being a bit confused as I had wrongly assumed the victim of “this” type of crime would want justice.

Years later, I now know that this victim’s path to justice was very different from mine. More to the point, this person did not see herself as a victim and, therefore, and did want anything to do with the “system” and its just deserts. Rather, this victim wanted to walk away, be left alone and reject the services and remedies our system offered. Her justice was to move forward and not look back. Over the years I have come to realize that justice is a fleeting concept and it takes varying shapes and forms for all “victims.”

I know this seems obvious, but if you really think about our preconceptions about crime victims, I am sure you will find a certain idea and path that you believe a victim should follow. However, some victims of crime want to embrace the justice system while others see it as part of the problem, almost an extension of the offender.

There are myriad reasons why victims of similar crimes choose different paths in the aftermath, too many reasons to list here. The point, rather, is that each victim has their journey up and out of the darkness. No one path is right or correct. And no one is immune to harboring these judgments or expectations of what a crime victim may need. What is important is that each of us who finds ourselves encountering a crime victim in our work or personal lives, hold our expectations at bay and simply ask, how can I help?

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney  in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

This article was first published in the Connecticut Law Tribune

Prosecutor’s Bad Decision Puts Rice’s Wife at Risk

Janay Rice, Ray Rice, domestic violence, Attorney Michelle S. Cruz

AP Photo/Patrick Semansky

The recently released video of pro football star Ray Rice’s vicious attack on his then-girlfriend Janay Palmer (they’re now married) provides a rare window into the life of a domestic violence victim.

The video (watch on YouTube) shockingly displays, for the world to see, Rice’s callousness and cruelty as the couple rode an Atlantic City hotel elevator. Specifically, at one point, Rice spits in the woman’s face, punches her, knocking her unconscious, and then kicks her as she lays limp on the floor. Sadly, when the National Football League first learned of the attack, it neglected to respond appropriately, suspending Rice for just two games. A mere slap on the wrist and, more importantly, a missed opportunity to send a message that domestic violence will not be tolerated.

The New Jerey prosecutor, at the same time, dismissed the case against Rice and ordered counseling — another missed opportunity. The prosecutor in a Sept. 4 statement said he stood by his decision, calling it the usual treatment of a “first-time” offender.

Hold on while I roll my eyes.

First, this type of extremely violent case is never appropriate for diversion. Second, in a case like this which includes a video of the violent assault, diversion is absolutely inappropriate, sending the wrong message to the offender. (We are saying punching out your girlfriend is OK.) Assume for the moment that all the prosecutor and NFL had at the time of their decision-making was the video from the outside of the elevator — there clearly was a horrific assault at the hands of Rice. The watered-down response from both the NFL and the state left the victim with only once option — go back to her abuser. Perhaps the victim believes she is choosing to stay and marry Rice, but do not forget she was knocked unconscious by her boyfriend and everyone, the state and the NFL, acted like it was not a big deal.

Now that the video of the entire attack has been released, NFL commissioner Roger Goodell had little choice to suspend Rice “indefinitely”—whatever that means. And yet, one has to wonder why exactly the NFL and the New Jersey district attorney’s office did not obtain—or view—the full video until the website TMZ had it. Clearly, it seems logical that if there is a video outside the elevator, then surely there should also be one inside the elevator.

Is this a case of turning a blind eye so that the ugliness of Rice’s assault could slip by and the game could go on? It seems far too convenient that the pesky video was not recovered by those “investigating” the incident. As a former prosecutor, if I were to investigate this assault, my first question would be whether there were other video cameras (ah, the answer to that is yes!) and where are they located. The next demand would be, get me those tapes.

The availability of the video of the assault makes Mrs. Rice’s testimony unnecessary. The state could go forward without her. This is often the safest position for the alleged victim, as she is not forced to align herself with the prosecutor, which often places the victim directly in harm’s way. As a result, a well-trained domestic violence prosecutor will make it a practice to search out independent evidence, such as videos, medical records, and witnesses other than the victim.

My concern, though, is not what will happen to Ray Rice, rather I ponder what, if any, safety measures have been taken to protect his wife. The lethality indicators all stress that when an abuser has work troubles and financial pressure, the threat level to the victim increases. Thus, if Rice is the type of abuser to knock out his girlfriend and then stand idly by apparently to admire his handly work, most likely his wife is in danger.

Janay Rice’s comments regarding her reluctance to relive the assault as a result of the newfound video speaks more of a victim wanting to keep the pressure off. Janay, in the eye of the storm, in my opinion, is seeking a way to control the storm that is coming, and doesn’t fully understand that it is not in her power to control Rice’s next move. Rice’s career in the NFL is essentially over (at least for the time being), and in his warped and demented mind, he most likely mistakenly blames his wife, not himself.

Sadly, had the prosecutor initially exerted a full-court press to hold Rice accountable, the opportunity to intervene and protect Janay could have been realized. I understand fully Janay’s desire not be labeled a victim and to assign herself as partly to blame. However, that being said, it is clear from the video that this is not Ray Rice’s first foray into violence and this is not about Janay. The manner in which he punches her and his lack of empathy in the aftermath of the violence clearly indicate a man with blood on his knuckles and darkness in his heart.

It is not surprising then that Janay is backing away from the role of victim and shouldering the responsbility. I have seen it time and time again. When the system fails, the victim aligns herself with the abuser. It is a primal instinct to want to live. In many cases, the victim continues to align herself with the abuser until the bitter end, when the abuser is sent off to jail—when the world is finally a safe place once again.

But the NFL has other problems aside from the Rice scandal—what to do with all the other domestic violence offenders on teams. It has been status quo to allow domestic violence offenders to remain on the rosters in the name of money. A couple suspensions, maybe a fine here and there. But now, hopefully, that the ugly secret is out, the NFL will follow through with its promise to devise an appropriate domestic violence policy and actually implement it in full force. Now the prosecutor, well there is no reason why they feel down on their job. Simply put, that’s just embarrassing.

This article was first published in the Connecticut Law Tribune

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney  in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

Do Prosecutors Protect the Rights of Victims? Should They?

Attorney Michelle Cruz, former prosecutor,

 

Often, I am contacted by a crime victim or a surviving family member who will share their experiences with our state’s criminal courts. As their story unfolds, the frustration is palpable. The broken dreams and loss of innocence caused by the perpetrator is augmented by their devastation that justice is often elusive at best, and a fiction to many.

Their hopes that a conviction would lift them to a place where they might begin healing have been dashed. The common thread in their complaints revolves around the system’s failures: the lack of notice of court dates; the failure of the state to provide, where possible, witness protection services; the inability to speak directly with the prosecutor handling their case; the learning after the fact of a prosecutor’s plea offer.

At the end of our conversation, the question always comes: “I cannot fathom another victim going through what I have. How, if at all, can we fix this?” These complaints are not new nor are they uncommon. However, the solution seems elusive. But here’s one suggestion that might help – a change to the Connecticut’s Rules of Professional Conduct.

Connecticut’s Constitution has provided crime victims with 10 enumerated rights:

1) The right to be treated with fairness and respect throughout the criminal justice process.

2) The right to timely disposition of the case following arrest of the accused, provided no right of the accused is abridged.

3) The right to be reasonably protected from the accused throughout the criminal justice process.

4) The right to notification of court proceedings.

5) The right to attend the trial and all other court proceedings the accused has the right to attend, unless such person is to testify and the court determines that such person’s testimony would be materially affected if such person hears other testimony.

6) The right to communicate with the prosecution.

7) The right to object to or support any plea agreement entered into by the accused and the prosecution and to make a statement to the court prior to the acceptance by the court of the plea of guilty or nolo contendere by the accused.

8) The right to make a statement to the court at sentencing;

9) The right to restitution which shall be enforceable in the same manner as any other cause of action or as otherwise provided by law.

10) The right to information about the arrest, conviction, sentence, imprisonment and release of the accused.

For the most part, rights 1 through 9 begin and end with the state prosecutor, who is in the best position to assure that the crime victim or surviving family member rights’ are, in fact, upheld.

The Rules of Professional Conduct is a roadmap on the ethical guidelines and expectations for attorneys. One area where the rules need updating is in the responsibilities of prosecutors. Specifically, the responsibility prosecutors have toward crime victims. Rule 3.8 lays out the responsibilities of the state prosecutor. It directs a prosecutor to ensure a defendant’s rights are not abridged, to prosecute only when there’s probable cause, and to prevent extrajudicial statements from being made by the prosecutor or staff. The comments accompanying the rule, however, seem point to a more robust role in the criminal justice system. Specifically, the comments state: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” The language continues by directing the prosecutor to take steps to prevent the violation of a defendant’s rights. And if the prosecutor is in the best position to protect a defendant’s rights, I would argue he or she is in the best postion to protect the rights of crime victims as well.

For example, a state’s attorney is the only individual who can screen and certify a witness (both a traditional witness and a crime victim) into the state’s Witness Protection Program. Furthermore, the prosecutor is one of few individuals (along with bail bonds persons and defense attorneys) who can advocate for or against bail or conditions of release in court. Therefore, the prosecutor is in the best position to facilitate and advocate for the crime victim’s right to be reasonably protected from the offender.

Rule 3.8 also states that the prosecutor is responsible for makng the defendant aware of his or her rights, including the availability of counsel for indigent defendants. Specifically, Rule 3.8(2) states that the prosecutor shall, “make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.” Thus it makes perfect sense that the prosecutor, likewise, should ensure that crime victims are aware of their rights and the mechanisms available to assert and protect those rights.

And so it seems appropriate with the advancement of crime victims’ rights both nationally and within Connecticut that the Judicial Branch’s Rules Committee would take a gander at Rule 3.8 and subsequent comments and expand the list of a prosecutor’s responsibilities.

This idea is nothing new. The American Bar Association has spelled much of this out in “Prosecutor Standard 3-3.2, Relations with Victims and Prospective Witnesses,” which lays out responsibilities of the prosecutor in regards to crime victims and witnesses. Specifically the rule directs prosecutors to provide a victim with case information, advice and afford protections when needed and notice of scheduling changes.

It is clearly time to update Connecticut’s Rule 3.8, for what else would it mean for a prosecutor to be the “mister of justice” if that justice benefits only a defendant and not the victim of a crime?

(originally published in the Connecticut Law Tribune)

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney  in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

Better Oversight Needed For Guardians Ad Litem

meeting-265849_640

Recently, criticism of Connecticut’s guardians ad litem (GAL) have hit an all-time high. GALs are reportedly withdrawing from their cases left and right, while grievances appear to be mounting. Family court, by definition, is charged with high emotions and children, unfortunately, are at the center of the storm. The GAL is supposed to be a beacon in the dark night, illuminating a path so a child can endure the tumultuous waters of a divorce or custody battle.

Unfortunately, that is not always the case.

This very issue came up the other day while I camped out in court, waiting for a hearing. I heard a family court judge explaining to countless divorcing couples, unable to come to an agreement over custody and visitation of their children, about the limitations of a guardian ad litem. The judge explained that the best person to decide the child’s future is often their parent. The parents, in most cases, understand their children and, if they can come to an agreement, are the most qualified to make these life-altering decisions.

The judge went on to caution the couples marching through the courtroom that a GAL is an outsider — a third party — coming in to assess, investigate and make recommendations for the couple’s children. Even though they attempt to do the right thing, the judge said, the GAL is still an outsider looking in.

Role of Guardian Ad Litem (GAL)

The well-trained GAL has the potential to resolve issues and assist the court and the family in resolving custody and visitation issues. As such, the GAL can be vital to determining a child’s future. I have had the wonderful experience of working with such individuals. They cut through the issues with precision, while remaining balanced and neutral, seeking only one solitary goal and that is the best interest of the child.

Likewise, a GAL that’s not well-trained or not a good match for the profession has the potential to ruin a family, leaving lasting scars and wreckage behind. It is the latter we are concerned with.

The impact a GAL can have is immense. If the guardian makes an incorrect recommendation or assessment, the family, or more importantly, the children, must live with that mistake. There is no recourse and no correction, aside from more litigation. When a family has a problem with a GAL, there is no one to report these issues to, short of filing a grievance. There are no supervisors to which an upset parent can express his or her concerns. Without the supervision and review of a superior, the GAL is left to make life-changing decisions based on 40 hours of training. Without an oversight agency, the GAL can act alone without review, deciding in a vacuum what should occur.

These issues are only ampilified when it comes to cases of domestic violence and child abuse. A GAL who is ignorant of, or ill-informed, regarding the prevalence and evidence of domestic violence or child abuse can unwittingly place a child with a violent and dangerous parent. This commonly occurs through the mechanism of what is called “alienation.”

The scenario goes something like this: The victim/parent makes allegations of domestic violence or child abuse. The offender/parent denies the allegations and makes some of his or her own. The court appoints a GAL to “sort out the issues.” That puts the guardian ad litem in a difficult situation. The GAL is often suspicious of any parent claiming abuse, suspecting that the alleged victim/parent is simply trying to hurt the custody case of the alleged offender/parent. If the GAL doesn’t judge the situation correctly, the alienation attempt might work and the offender/parent might be granted sole custody. The children then must live under the threat of violence. The victim/parent, meanwhile, loses all faith in the system and decides not to report future violence for fear of losing all contact with the children.

Negative Impact and Training of GALs

These situations leave gaping wounds in the lives of children, the victim/parent and can lead to physical assaults, or, worse. This same situation can occur with allegations of child abuse, resulting in a child being forced to live in an abusive home.

Simply put, the failure to monitor and evaluate the guardians ad litem in Connecticut makes these situations more common. In other states, the GALs are monitored and supervised, and a struggling GAL can be identified early on. In the current system in Connecticut, an attorney or layperson simply attends six-half day training sessions and then, after that, has the potential to become appointed as a GAL without the safeguards of supervision and monitoring. This leads to getting custody and visitation decisions wrong. When that happens, children get hurt. They deserve better.

(originally published in the Connecticut Law Tribune)

 

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney  in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

The Many Abuses of Ke$sha

Ke$ha,eating disorder, Michelle S. Cruz, Michelle Cruz, abuse, domestic violence

Ke$ha
*photo by Becky Sullivan

I keep coming back to reports I have read about Ke$ha who recently checked into an eating disorder clinic.

I don’t know if the reports are 100% accurate but even if the reports are partially correct, she sounds like she’s in a very abusive relationship with some nameless individuals in the industry- who, according to the reports, control her label, music choice and just about every aspect of her life. There are reports that these same individual(s) comment on her weight and her looks- allegedly calling her ugly, fat and untalented.

We on the outside of this relationship know is not true-she’s wildly talented, gorgeous and amazingly gifted. She’s young-mid twenties- and just getting comfortable in her skin and as most artistic challenging whether she’s good enough and striving to improve. This individual reportedly told Ke$ha she needed to lose weight and he didnt care of she had to stick her finger down her throat.

This abuse, control, cruelty, sounds oddly like a classic domestic violence relationship. It has all the trappings of abuse- financial, emotional and spiritual cruelty- it’s anyone’s guess if there was physical violence.

I bring this up because we are all bystanders to this cruelty, both in this instance and often in our private lives. What are we to do when faced with abuse- we need to speak out and that’s what I am doing here.

I am calling out these reports and, if true, naming them for the abusers they are. What will you do when you are faced with a similar situation?

The Many Abuses of Ke$sha

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney  in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com

Restraining Orders in Connecticut Unfair to Abuse Victims

restraining orders

Domestic violence has plagued our communities for decades. Despite attempts to make the masses more aware, and to provide safety to victims and their families, victims continued to struggle to secure a safe exit from abusive relationships. Some of the obstacles are obvious, such as financial barriers. Others are less obvious and embedded in a legal system that is supposed to offer help to the victim. Sadly, one such area is the Connecticut restraining order process.

For those who are unaware, the restraining order process is twofold. In the most general terms, the first step is for the complainant (the victim) to request a temporary order, ex parte, from the court that has jurisdiction. The court can grant the temporary order and schedule a hearing approximately 10 days to two weeks later. The court can also deny the temporary order but schedule a hearing within the same time frame to determine if a permanent order is needed.

If the order isn’t flat-out denied, the next step is the order must be served upon the respondent (the alleged “abusive” person). After it is served, there is a hearing at which the complainant and respondent present evidence to support their position. The court, based on the evidence, either grants or denies the extension of the order.

A key component to obtaining a restraining order is ensuring the service of the order to the respondent. This not only notifies the respondent of the temporary order or application, but it is essential in allowing the complainant to move forward in his or her quest for safety. You could say the service of the order is the glue that keeps the system moving forward. Failure to complete service stops the process altogether.

In many states, once the complainant successfully obtains a temporary order, a court clerk forwards it to the police who serve the order to the respondent. Not in Connecticut. In Connecticut, the whole service process rests on the shoulders of the complainant. The alleged victim must not only find the courage to ask the court for protection from an abusive partner, but she or he must take the reins and complete the service of the order.

The complainant must comb through a laundry list of state marshals and, after identifying a marshal who covers the respondent’s geographic area, contact the individual marshal, arrange for service, and then make sure the proof of service is returned to the court within the allotted time. All the while the complainant must stay vigilant as to possible threats of harm by the abusive partner.

If the order is not served on time, the process must begin all over. That means the complainant must return to the court, apply for a new order, find a marshal, and pray the order is served appropriately this time. For many abuse victims, it’s difficult enough to walk into a courthouse to begin with; it’s often the culmination of a decision that has taken years or decades to make. Encountering this complicated process for service can be just enough of a stressor to send the victim back home and into the wrath of a lethal abuser.

Furthermore, there have been complaints over the years that some marshals won’t serve these types of orders, as they must chase down the state for reimbursement. Other domestic violence victims have complained of marshals who will attempt service only one time. If the respondent isn’t home, the marshal will not return.

Remember, these orders allow the abused partner to seek law enforcement’s assistance to keep a dangerous offender away; an arrest for violation of the order carries with it a felony and possible jail time. However, if the service isn’t completed, the safety that accompanies the restraining order remains out of reach.

So why it is the complainant/victim’s responsibility to ensure service? In states where the clerk sends the order to police for service, there are many positive benefits. First, police have access to vital information, such as a gun registry and criminal history, which serves to alert officers to the potential dangers of serving the order. Further, if police officers serve the order, they can seize firearms covered under the order right at the time of service. Also, the police are brought into contact with the respondent, putting this individual on the police’s radar if there are future problems.

This simple transfer of responsibility of service from the backs of the complainant/victim to the clerk and police would streamline the process and enable the complainant to focus 100 percent of their attention on their safety instead of being entangled in the “system.”

It seems archaic that now—more than 25 years after the horrible attack of Torrington’s Tracey Thurman by her abusive husband made national news—that Connecticut still expects the victim to shoulder the responsibility for such administrative processes.

There is a group currently looking to change state law to advance and update the service process. If successful, these changes will bring Connecticut’s system into the 21st century.

As someone whose actually been through the Connecticut process, and has had to fork over $80 to have an order served within a tiny window of time, this proposed change makes a whole heck of a lot of sense and could be the difference between life and death. •

(originally published in the Connecticut Law Tribune)

 

Attorney Michelle S. CruzMichelle Cruz, a former Massachusetts prosecutor and Connecticut state victim advocate, is a practicing attorney  in Hartford, CT. 

Michelle Cruz is available for media appearances, conferences, and presentations. Please contact her through her website AttorneyMichelleCruz.Com or contact ImaginePublicity Phone: 843-808-0859 Email: contact@imaginepublicity.com