Category Archives: Domestic Violence and Subpoenas to Testify

Colorado Domestic Violence Defense – Unveiling The ‘Real Abusers” and the “Real Victims”

By H. Michael Steinberg Colorado Domestic Violence Criminal Defense Lawyer – Please Email the Author at hmsteinberg@hotmail.com

Colorado Domestic Violence Defense – Unveiling The ‘Real Abusers” and the “Real Victims” – All experienced Colorado criminal defense lawyers understand that our legal system’s treatment of abuse is absurd. Law enforcement officers called to the scene of alleged domestic violence are poorly trained to fully understand the depth and character of the deep seated psychological problems and issues that underlie even the most outwardly simple acts of domestic violence.

Sometimes things are not as they seem. If you are a patrol officer dispatched to the scene of an alleged act of domestic violence, you may not understand that the “striking person” may NOT the “real abuser” in the relationship.  If a psychologist was with you  (obviously not possible) he or she might tell you that the real abuser is the person that has the real control in the relationship … that person we would call the “psychological abuser.”

The Psychological Abuser

The “psychological abuser” is usually polite, stable, manipulative and non-aggressive outwardly. They are much better at maintaining control in all instances. when the response from the less capable of the two – the “striking abuser” loses control – the “psychological abuser” is in control. .

The outwardly aggressive abuser- the one the police arrest – is made by society and the courts – to believe that since they are the “attacker,” they are the real abuser in the relationship. It is true that the person arrested for domestic violence is usually the person who has lost control over their emotions (usually the man) and may in fact be the attacker outwardly. But – in some cases – the  act of domestic violence – that striking out – may NOT be about control over the other person – on the contrary it may be about frustration – from a lack of or a loss of control.

Domestic Violence “Science” Is Sometimes Simplistic AT Times And May Be Mistaken About Outward Aggression and Abusive Control

When you read the so called “research” about domestic violence research, we are told know that domestic abuse is fundamentally about control. In abusive relationships, violence is supposed to be a manifestation of control. It is used by the aggressor to established and maintain control.

Such a reading is driven by a gender bias against men. The assumption is that the attacker is always the “abuser,” – he is the one who holds greater power and control in the relationship. This is the kind of simplistic analysis that drives the cottage industry of domestic violence therapeutic interventions.

The existing control theory fails to take into account the etiology of the aggressor’s violence.

While it is true that some “abusers” (outward aggressors) strike to regain control…they are not always the “controlling party” in the relationship. While their actions may, on the surface, appear violent, inappropriate and outwardly abusive, their behavioral actions may be reflexive in nature.

Many “outward aggressors” mindlessly seek a level playing field in their intimate relationships. At the core, these individuals remain under the psychological control of their partners and the violence they display is the result of inadequate conflict resolution skills, rather than a pathological addiction to control.

Which Is The Real Abuse – A Slap, A Push, or Constant Mental and Psychological Abuse?

An abusive relationship may have one party as the verbal aggressor while the other is psychologically controlling. Both individuals are abusers and both are victims in their abusive relationship.

A successful approach to any domestic violence prosecution -if the prosecution is truly seeking justice – must act with sensitivity to the complexities in almost all intimate relationships. Labeling the outwardly violence partner as “the abuser” ignores the true dynamics in play here.

Justice Must Be Blind – Domestic Violence “Abuse” Dynamics Are Never Simple

The prosecutions of Colorado domestic violence cases often reveal what turn out to be mutually abusive relationships. Our system of justice must be gender neutral and not simplistic or reductionistic in it’s approach these cases.

Stakeholders in domestic violence cases – the alleged victim – the defendant – eyewitnesses – family members or friends – must all approach any domestic violence criminal case with honesty and sincerity if our system of justice is ever to truly bring an end to the huge numbers of these cases crushing our courthouses in Colorado and across the country.

What Women Want – Why Colorado Domestic Cases Should Be Dismissed In Favor Of Evaluation And Fair Treatment Modalities

Why Colorado Domestic Cases Should Be Dismissed

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Why Colorado Domestic Cases Should Be Dismissed
Why Colorado Domestic Cases Should Be Dismissed

Why Colorado Domestic Cases Should Be Dismissed  – Experienced Colorado criminal defense lawyers who practice in the courts of Colorado are only too well aware of the problems that have arisen out of the “one size fits all” approach of Colorado Domestic Violence Laws.

When a woman (or a man – in the minority of cases) has been the alleged victim of an assault or some form of harassment, they will call the police for help. What they receive, because of a lack of education, is not help – but the destruction of their family or their relationships.

Mandatory Arrest Laws Make No Sense

Restoring the discretion of the police to separate serious acts of domestic violence from the spat that often accompanies difficult marriages or relationships, is what the police used to do when I first started as a young Colorado county prosecutor in the early1980s, Colorado domestic violence cases were treated no differently than all other misdemeanor and felony prosecutions.

What a married couple or anyone in a long term relationship well knows – the police are most often called to “settle” threats to: abscond with the children – resolve accusations of infidelity, mediate issues related to financial pressures and the resulting frustration.

But when the police or other authorities are called to break up the typical “family fight” in Colorado  – “someone is going to jail” and the alleged assailant is mindlessly arrested on an what is typically an assault or harassment charge.

No Room For “Making Up”

Every case today requires an arrest and a “no bond” hold until a judge can enter a restraining order in open court – even if the victim wants to drop the charges. For the last twenty plus years couples in Colorado are given no opportunity to just cool off and  “make up” without the impact of an immediate and mandatory arrest. Later, the alleged victims are forcefully “counseled” by both the police or the DA “victim” advocate – to obtain permanent civil restraining orders that prevent all future contact. This makes no sense.

Why Colorado Domestic Cases Should Be Dismissed – Mandatory Arrest And Prosecution – Destroys Relationships – Mediation Is Key

One of the chief rationales for mandatory arrests and no contact restraining orders  – is that these procedures “take the burden off” victims. The idea is”pro-prosecution” approaches  “remove responsibility” from the alleged victims for the decision to move forward. The truth is – by taking ALL control away from women in the criminal justice system, women then suffer the social or economic consequences of the impact of jail on their significant other and the ultimate destruction of the fabric of the entire social lives with little to show for it.

A judge in one of New York’s largest counties put it best:What these women want most is for their men to get help with their problems.”

That help, in my opinion after 30 years in Colorado courts on BOTH sides of the issue as a prosecutor and as a defense lawyer  –  is mediation and counseling, not prosecution.

What Ultimately Happens To The “Victims” – ‘Coerced Prosecution’

Forcing a woman victim of a relatively minor domestic violence “argument” into a “coerced prosecution” makes her a hostile witness. It also doubles the sheer number of cases of domestic violence that cannot be resolved without a trial. It is a meat hook approach to a delicate set of issues.

The Danger Of “Unintended Consequences”

Often what started as a small disagreement in a strained relationship – with some mutual pushing and shoving – following the impact of the Colorado domestic violence machine – leads to enhanced violence when the process has finally ended. When mostly men – humiliated and harassed by an unthinking and unfeeling system are finally released from jail – a major study of domestic violence finds them much angrier and less in control of their emotions than before the arrest…leading of course to either the destruction of their family or relationship – or further disharmony and violence.

Many studies have shown that the loss of employment – often the result of the mandatory jail sentence in these “fast tracked” cases, leads to significantly MORE violence later in time and calls into question the “wisdom” among criminologists, that arresting the alleged abusers is really the best way to protect women from future disputes with their significant others.

The evidence forces us to confront the fact that mandatory arrests in domestic violence cases may cause more violence against women in the long run,” said Lawrence W. Sherman, a criminologist at the University of Maryland

“In communities with high unemployment, the net effect of an arrest policy is more violence,”

Why Colorado Domestic Cases Should Be Dismissed – H. Michael’s Take

Taking away police discretion and flexibility – while politically attractive in Colorado – is a mistake. The police are on the scene and the have the best vantage point to”make the call” give them back their right to decide when to “cool off” the parties and when an arrest and prosecution is really necessary.. trust their judgement as we do in all other spheres of criminal investigation and prosecution. Why Colorado Domestic Cases Should Be Dismissed – because other avenues of mediation and treatment “heal” not destroy families and relationships.

2012 – Colorado Law Changed For Failure To Obey A Subpoena – Refusal To Testify In Colorado Trial

I am often asked as a Colorado Domestic Violence Lawyer – ” what if I refuse to come to trial and testify?” Ethically – ALL lawyers know they MUST urge their clients and ALL witnesses to obey court orders and testify – even when they do not want to ..this is because the criminal justice system would collapse if witnesses could pick and choose when they will obey a Court Order of any kind.

Trials are intended to vindicate the innocent and convict the guilty.  So there are punishments allowed to be meted out by a judge of a witness or victim refuses to obey a lawfully served subpoena.

This new change in the law – governs the conduct and power of a trial judge where a witness refuses to appear and – or otherwise obey a subpoena in Colorado.  This law makes

Criminal Procedure Rule 17(h) Revised for Failure to Obey Subpoena

The Old Law – 17(H)

17 (h) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

The New Law – 17(H)

The Colorado Supreme Court has amended Rule 17(h) of the Colorado Rules of Criminal Procedure – Failure to Obey a Subpoena.

The new rule reads:

(h) Failure to obey subpoena.

(1) Contempt. Failure by any person without adequate excuse to obey a duly served subpoena may be deemed a contempt of the court from which the subpoena issued hop over to this site. Such contempt is indirect contempt within the meaning of C.R.C.P. 107. The trial court may issue a contempt citation under this subsection (1) whether or not it also issues a bench warrant under subsection (2) below.

(2) Trial witness—bench warrant.

(A) When it appears to the court that a person has failed without adequate excuse to obey a duly served subpoena commanding appearance at a trial, the court, upon request of the subpoenaing party, shall issue a bench warrant directing that any peace officer apprehend the person and produce the person in court immediately upon apprehension or, if the court is not then in session, as soon as court reconvenes.

Such bench warrant shall expire upon the earliest of:

(i) submission of the case to the jury;

or

(ii) cancellation or termination of the trial.

(B) Upon the person’s production in court, the court shall set bond.

This amendment was adopted on April 23, 2012 and is effective July 1, 2012.

Here is a LINK to the New Law: 

The comments to the rule – that help explain the decision to create the new rule are as follows:

The Advisory Committee on Rules of Criminal Procedure has recommended two changes to Crim. P. 17(h), which deals generally with a subpoenaed witness’ failure to appear at a trial or hearing:

1.A clarification that such a failure to appear is indirect contempt that may be dealt with under C.R.C.P. 107; and

2.An addition codifying, but also limiting, what many trial judges across the state have always believed was their inherent power to issue bench warrants when witnesses fail to appear for a criminal trial.

The Committee recommends four limitations to this power to issue arrest warrants:

1.That it be limited to trials, and not apply to hearings;

2.That the arrested witness must be brought directly and immediately to court;

3.That a bond be immediately set; and

4.That the authority to issue the bench warrant automatically expires, and any already-issued warrant automatically is vacated, when the trial is either continued or concluded.

H. Michael’s Take:

This represents a sea change in what most lawyers thought about bench warrants issued for witnesses who fail to appear.

Here is the committee’s thinking on the reasons for the law:

..there is no Colorado rule or statute giving a trial judge any express authority to issue bench warrants when subpoenaed witnesses fail to appear for criminal trials.

“After  wide-ranging discussions over many months, a substantial majority of the Committee concluded that the uncertainties surrounding this inherent power should be formally addressed by modifications to Crim. P. 17(h), and that those modifications should expressly recognize the trial court’s power to issue bench warrants for the arrest of non-appearing criminal witnesses, as a practical alternative to indirect contempt  proceedings  under C.R.C.P. 107.”

The one dissenting member of the committee had this to say about the process:

“… the legislature has not authorized  a court to proceed with a bench warrant. [And] …there is a good reason for the indirect contempt process:  it allows for the witness to have some modicum  of process without being grabbed by law enforcement.  Perhaps service of process did not occur as relayed by the serving party, or the witness had a valid excuse (such as a belief that the witness  was placed “on  call”.)  Rather than expanding the opportunity for a peace officer to take someone into custody, the process of indirect contempt allows for a less aggressive avenue to address the problem of a missing witness, one that is much less threatening to civil liberties. For these reasons,  I am strongly against adopting a rule-based framework for issuance of a bench warrant when a criminal trial witness is alleged to have failed to appear on a subpoena.”

However – this lawyer believes that the expiration of the bench warrant for failure to appear at trial – – if the trial proceeds to verdict – or if the trial is canceled or terminated for some reason – makes complete sense and is a good fix to the present state of the law.

Indirect Contempt of Court in Colorado

Contempt of court is governed by Colorado Rules of Civil Procedure Rule 107. Rule 107 indicates that there are two types of contempt, direct and indirect. Direct contempt generally relate to actions taken in the court and contempt brought by the judge. Our attorneys rarely deal with direct contempt, as they are just not that common. Indirect contempt are contempt generally brought by one party against the other for violating the court’s order, which can be “indirectly” offensive to the court.

Contempt are further categorized as being either “remedial” or “punitive.” With punitive contempt, pure punishment is sought, whether fines or jail time (which can be up to 180 days). With remedial contempt, individuals seek an order remedying the violation of court orders. In a remedial contempt situation, the person bringing the action can also seek attorney fees. In the punitive situation, they cannot. However, C.R.C.P. Rule 107 allows a person to seek both remedial and punitive sanctions in the same action.