Relationships are complicated. In my capacity as a criminal defense attorney, I talk with partners, husbands and wives, and boyfriends and girlfriends about the most embarrassing of situations two people can face. It is not my job to judge…it is my job to assess a situation and help navigate everyone, so my client has the best chance at moving forward in life without a debilitating blemish on their record.
There is a question I get asked more often than any other in those family violence case meetings: “What do I do if I don’t want to prosecute?” The fact that I get asked this question so often by the alleged victim illustrates one of the most surprising aspects of handling a domestic violence case: in the overwhelming majority of family violence cases, the victim doesn’t want to prosecute.
Even though patterns of domestic abuse can occur, in the majority of family violence cases I have handled the arrest is an isolated, uncommon event. A temporary breakdown occurs in the relationship but it’s not fatal to its long-term health.
Recognizing that their partnership is worth saving, alleged victims reach out to me for advice on how they can resolve the criminal case without it destroying the foundation of their relationship. Clearly, in these instances, the alleged victim has already determined their relationship is worth preserving for reasons only he or she can say. In some rarer circumstances, an alleged victim is not interested in saving the relationship but doesn’t want the loved one to suffer the consequences of prosecution and conviction. Whatever the reasons for not wanting to prosecute, they seek my advice.
Representing the Defendant
Now, the easiest response to the alleged victim as the lawyer representing the defendant is to say that I can’t legally tell you what to do. Potential conflicts can easily arise if I attempted to represent the defendant while trying to cater to the wishes of the alleged victim, particularly in volatile situations.
Unfortunately, such an answer rarely satisfies the alleged victim or, more importantly, the client I represent. They love each other. They are still together. Their interests align. I recognize that in the majority of the family violence cases I take on the defendant and alleged victim share a common goal: to get the charges dismissed.
This is why it is so important to share information with the alleged victim in an impartial way without betraying the trust of the defendant I am duty-bound to represent. It is a potential minefield an experienced criminal defense attorney must cross when resolving a family violence case.
It’s Your Own Decision
I preface any conversation with an alleged victim with the above admonition. You as the alleged victim should make your decision to prosecute or not prosecute on your own terms. Period. No one, not the defendant, the defendant’s attorney nor the prosecutor for that matter, should bully, compel, or threaten you in making your decision.
This decision HAS to be made by you and you alone.
In my career, I can say have I have never told an alleged victim what to do when it comes to the prosecution of a domestic violence incident. Indeed, I always assure the alleged victim that if the defendant, that is my client, pressures the alleged victim to not prosecute, then to let me know and I will deal with it. I have an obligation to the defendant that I represent to make sure undue influence is not applied because that may result in another criminal charge. And, of course, an important part of my job description includes keeping my client from getting into further trouble.
You Can’t Always Trust Authority
However, there is another potential and sometimes deceptive influence that is brought to bear on the decision-making of the alleged victim: the actions of the prosecutor’s office. The most important thing I can communicate to an alleged victim is that you are not necessarily obligated to cooperate with the prosecutor or his agents. Many alleged victims think that they have to cooperate with the police and the prosecutor, or they will get in trouble. This is NOT TRUE.
You get to decide what you want to say and who you want to say it to. In many instances, the prosecutor will trade this false belief that you must somehow cooperate to get important information from you. Information that you may not want to share. The important thing for you to understand is that you are in complete control and that no display of authority on the part of the prosecutor’s office should sway you.
Demand to Be Treated Like an Adult
The second thing I tell an alleged victim after the admonition that I can’t represent you is that you are an adult and I will always accord you the respect of treating you like an adult. This, however, is not always the case with the prosecutor’s office. I can’t tell you how many conversations with prosecutors I have had over the last 25 years hearing the prosecutor tell me that the alleged victim is not capable of making decisions regarding the resolution of the case. Sometimes, in fact, prosecutors will tell me bluntly that they simply don’t care what the alleged victim wants.
Prosecutors have taken a more parental approach to handling the alleged victim. They cite all sorts of rationales why an alleged victim can’t have final say in the disposition of the family violence case. But it all boils down to this very essence: the prosecutors know better. They’re the parents and you’re the children and they make the final decisions. It doesn’t matter to most prosecutors that it is impossible to know what an alleged victim’s real circumstances are and how potentially devastating the prosecutor’s decision can be to their future. The prosecutor must plod on to the next case and the next decision. The consequences and repercussions of these decisions unfortunately are left for the alleged victims to deal with.
You Have Decided Not to Prosecute
If this is your decision, it is extremely important for an alleged victim to understand that the prosecutor is not bound to what that alleged victim wants. Understandably, many alleged victims believe that if they simply call up the prosecutor’s office and express their desire to have the case dropped the case will be dropped. Isn’t the prosecutor representing me? Doesn’t the prosecutor have to drop the case if I say so?
The answer to both questions is a resounding NO. The prosecutor represents the State, not the alleged victim. The prosecutor is not bound in any way to the wishes of the alleged victim. The prosecutor’s agenda does not necessarily include the future well-being of the alleged victim or the alleged victim’s family.
The prosecutor’s decision in any given family violence case is influenced more by that prosecutor’s own beliefs, prejudices, and preconceptions than what an alleged victim could provide as reason for dismissing the case against the alleged victim’s loved one. For the prosecutor, office politics in many instances can far outweigh any concerns an alleged victim may have with the defendant receiving a conviction or being branded a spouse abuser.
It’s not the prosecutor’s concern to ensure that the defendant doesn’t lose his job as a result of a family violence conviction. The prosecutor has to process thousands of cases every year and cannot possibly understand or be concerned with the fallout that seeking such convictions can cause to the families involved. Fundamentally, a prosecutor’s job is to prosecute, and to think otherwise is wishful and sometimes dangerous thinking.
Then What Can I Do?
If the future harmony and the financial viability of the family is not necessarily a factor in the prosecutor’s decision to seek a conviction, then what can an alleged victim do if the alleged victim does not want to prosecute? The choices are limited. The alleged victim can ring up the prosecutor’s office and hope that somehow, he or she can persuade the prosecutor or, more likely, a prosecutor’s representative (victim witness coordinator) to drop the charges.
Over the 25 years plus that, I have been practicing criminal law, I have seen countless examples of prosecutors ignoring the wishes of the alleged victim. You may think that calling the prosecutor’s office and talking to the prosecutor is the easiest path to requesting a dismissal… it’s not.
First, you probably won’t be talking to a prosecutor. The prosecutor typically is handling too many cases to have time to personally interview each alleged victim and will normally delegate this task to a victim-witness coordinator.
This victim coordinator is not an attorney and has no power to resolve your case. The coordinator can simply ask questions and listen to you. As a result, this coordinator is given a great deal of power to shape the narrative of the case for prosecution. Indeed, the coordinator is trained to ask questions that can potentially provide more admissions and incriminating statements to prosecute the defendant. Make no mistake, this is what you face when you pick up the phone and call the prosecutor’s office.
So, in my experience, the alleged victim is more likely to win the lottery than convince the prosecutor’s office to dismiss.
Calling the prosecutor’s office can actually hurt the chances of dismissal because, as mentioned earlier, the person who talks to the alleged victim is normally trained to elicit statements from that alleged victim that could potentially lead to more evidence for a conviction. No question, it is an easy mistake to make by reaching out to the prosecutor’s office thinking you can persuade them to dismiss but, in my opinion, once you understand their agenda, it is one you do not have to make.
Another Approach to Consider
So, what can I do if I decide not to call up the prosecutor’s office? No doubt you have heard the old proverb that “silence is golden.” Sometimes not doing anything can be more effective in obtaining the desired result.
Think about the duties of a prosecutor. In order to prosecute they need evidence. Collecting evidence does not end with the initial investigation by the police. It is an ongoing process that normally depends on the continued cooperation of the alleged victim. To properly get ready for trial, a prosecutor will need to prepare the testimony of the alleged victim. If the alleged victim is not available to provide additional information and fill any of the gaps in the prosecutor’s case, the prosecutor then, it stands to reason, will have a much more difficult time getting a conviction against the defendant.
By not participating in the prosecution of the defendant, e.g. from not communicating with the prosecutor to avoiding being served with a prosecutor’s subpoena to appear in court, the alleged victim is not simply sending a message to the prosecutor but is substantively and seriously compromising the prosecutor’s ability to secure a conviction. For a prosecutor, talk is cheap. A simple request to not prosecute doesn’t really impact the prosecutor’s case. But when the alleged victim takes these kinds of substantive measures a prosecutor must re-evaluate the probability of making the case.
The Leverage I Need
By creating this weakness in the prosecutor’s case through not participating, the alleged victim provides me the necessary leverage to negotiate with the prosecutor for that desired dismissal. The prosecutor may bluster about going forward with the case but for the prosecutor, this course becomes a very tough road to travel without the cooperation of the alleged victim. It also means putting this case on a trajectory for trial that drains the very limited resources of the court. Naturally, a prosecutor is very hesitant to tax the trial court’s time with a case in which the alleged victim does not want to participate. Further leverage for that dismissal.
At Chambers & Associates, we strive to get every case dismissed. We want to be there to help you in this stressful time. We understand that family is the most important thing in your life, and we will take all the measures required to protect against the disruptive effects of an unnecessary prosecution.
Call our 24-hour legal helpline at (512) 474-1404 or fill out our confidential contact form to explore all of your legal options during this difficult time. Our Travis County criminal defense lawyers want to protect your family’s future.