IOWA CHAMPION

Maryland murders highlight judicial predicament

The terrible case out of Maryland where Mark Castillo stands accused of murdering his three young children highlights the predicament that judges across this country are placed in on a daily basis. The decision on whether or not to grant a permanent protective order may be the hardest one a judge has to make. They are quite often damned if they do...damned if they don't.

In the Castillo case, the mother of the children had applied for and was granted a temporary order of protection based on an accusation of domestic abuse. After a hearing to decide if a permanent order should be entered, the presiding judge found a lack of "clear or convincing evidence the alleged acts of abuse occurred".  That judge did exactly what he was supposed to do; examine the facts and render an honest judgment. Is there anything more we could ask from him?  For whatever reason, the system failed. It could have been that the mother was not articulate enough to convey the threat. It could have been that the accused had people testify on his behalf that didn't want the truth to come out. Whatever the reason for denying the order, the murders were no more the judge's fault than they were the clerk of court.

I have found in the dozen or so cases where I have defended someone in a civil permanent protective order hearing, that judges are far more likely to side with the accuser in weaker cases.  I have won only one case after a full hearing, and that was where there was a male "victim" and my female client was the accused abuser.  They were both in their 60's and she was physically incapable of doing some of the things she was accused of.  The burden of proof will often get put on the back burner if the case is close, and the tie usually goes to the accuser. Cases like the Castillo case convince many people that issuing a few applications on lies is acceptable. They maintain it is the price we have to pay to stop a tragedy like this from occurring. While a certain number of false accusations will always exist, it goes against any sense of justice to set a system up that encourages them.

The current civil system of protective orders does exactly that, it encourages false accusations, especially where children are involved.  In Iowa, if a judge makes a finding that a person has committed domestic abuse, it can be used against them in a custody battle.  You can imagine what the effect of such a finding would have on the chances the "abuser" will get custody.  By contrast, if the person does not put on a defense and agrees to the entry of the order, no finding of abuse is made.  The natural result is that the accuser can gain a significant upper hand by simply making the accusation of abuse and forcing the other party to consent to the protective order. If a person doesn't consent they face the prospect of having their chances for custody decimated by a finding of abuse. Add in the fact that an accusation of abuse can force the other party out of the house, limit their contact with the children, and cost the other party thousands in extra legal fees and you have a system perfectly suited for lies to win over the truth.

You can bet that judges in Iowa and across the country are paying closer attention to these cases after the right result got splashed on the front page for the wrong reason.

Polly Want a No Contact Order?

I heard on the radio that the Iowa Senate had passed legislation expanding the State's domestic abuse no contact orders to include family pets.  That's right, pets.  If you stop in to see Scruffy at the vet while he's getting his flea bath, you'll be subject to arrest and jail if one of these orders prohibited contact.

Now, when I first heard of this I thought that this had to be "first of its kind" legislation.  I was somewhat surprised to see that several states have already passed these laws and Iowa is one of a handful more that is currently in the process of doing so.

Proponents of Senate File 2275 cite various statistics and anecdotal evidence that abusers will use violence or threats directed at the pets to control and intimidate their victims.  They also say that existing law is inadequate to address this situation. While this type of abuse probably does happen, I get frustrated when I hear that lawmakers are wasting time on things that are already covered by existing criminal code sections.

Lets face it, if a  cop wants to arrest someone bad enough he doesn't have to get too creative to come up with a reason.  If you physically abuse or mistreat an animal you are already subject to prosecution for Animal Torture under Iowa Code Section 717B.3A. This covers all scenarios where the abuser inflicts pain, inure, or death on the family pet to "get back" at the victim or keep them from leaving.  The laws against Harassment sufficiently cover threats made against a household pet.  If an abuser is trying to intimidate you by threatening to harm the pet they can be arrested for Harassment. In both cases the person could be prosecuted under existing law.

I also question the value of this law in legitimate cases of domestic violence. If a person is granted  a no contact order in a case of domestic abuse that order would prohibit the abuser from coming to the residence, whether their purpose was to harm the victim, the pet, or mow the lawn.  If they come to the victim's residence for ANY PURPOSE they can be arrested and prosecuted. If the defendant shows up to kidnap the dog while the victim is at work, they have violated the no contact order.  If the police are called the defendant will be arrested and thrown in jail, every time, guaranteed.

Besides the fact that our legislators are passing, redundant, ridiculous legislation while there are much bigger issues Iowans are facing...like whether we can smoke in casinos...<sigh>...it gives me a headache to think about defending against this type of violation.  I would imagine that in many cases the only evidence of the violation of the No Contact Order would be the accuser them-self, unless they threatened a parrot perhaps.  It simply gives police one more charge to pile on the heap when arresting someone.  It gets the defendant's bond higher.  It makes the defendant look bad for being mean to puppies.  The court costs, attorneys fees, and fines all go higher. Perhaps the biggest disadvantage is that it gives the prosecutor one more hammer in his tool-belt to use if your client doesn't want to plead guilty. If a client was looking at additional jail time from a bogus charge of threatening the pet it may force your hand in plea negotiations.

In the end these types of laws will continue to be passed because they make the farmers at the Statehouse feel like they are doing something good.  In reality all they are doing is adding to the strain on an already over burdened criminal justice system.