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Domestic Violence Charges

Family Violence Judge Recused: How Social Media Can Affect Your Case

The Travis County criminal courts were recently shaken up by the recusal of recently elected Judge Dimple Malhorta, presiding judge of Travis County’s family violence County Court at Law #4. A motion was filed requesting that Judge Dimple be removed from a protective order case because of her bias against criminal defendants charged with family violence offenses. The motion cited her social media posts to support the assertion that she was unfairly biased.

It is extraordinarily uncommon for a judge to be recused from a case in Travis County. Requests for recusal are not uncommon, but actual recusals are rare. The rarity of the recusal and the conduct on which the recusal was based certainly raises eyebrows. This recusal may have a significant impact on this case in particular and the court at large.

It’s Just Social Media…or is it?

Social media platforms were created for people to freely post opinions, read news articles, laugh at memes, and communicate with others. There is no shortage of individuals making a living by carefully crafting a public image. In the case of Judge Dimple, she was using hers to boost her election efforts. This is a common practice in judicial campaigns where a candidate communicates to potential voters where he/she stands on various topics. A candidate is carefully crafting their public persona. And it is really no surprise that a former prosecutor would post things such as:

“If you know me personally, you know the only reason I’m running is because fighting against domestic violence has been a lifelong passion of mine. I have never run for a different court and never will.”

Alongside a news article, she posted with the headline “Boyfriend strangled and killed missing Austin woman, according to the affidavit.” she’s quoted as saying, “This is a tragic reminder that domestic violence is also an epidemic and one that continues to take lives. In this particular incident, a former partner of the suspect alleges that he also strangled her during their relationship. Strangulation is one of the many risks of lethality in relationships where abuse is occurring. … Agencies are still providing assistance with protective orders. County Court 4 will remain open so that those cases can be heard.”

But as a judge, one may not have as much latitude in posting their public opinions, especially when these opinions can be used as fodder to allege bias against those who are supposed to have the constitutional protections to be presumed innocent.

How Does a Recusal Happen? 

First, here’s the lawyerly boring stuff.

Recused – when a judge, prosecutor, or juror is unqualified to perform certain legal duties because of a conflict of interest or impartiality

The motion was brought pursuant of the Fifth Amendment (Due Process Clause) and Fourteenth Amendment to the United States Constitution as well as Rule 18b of the Texas Code of Civil Procedure which states:

“A judge must recuse in any proceeding in which: (1) the judge’s impartiality might reasonably be questioned and (2) the judge has a personal bias or prejudice concerning the subject matter…”

In the situation involving Judge Dimple, a motion was filed that outlined her offending conduct. A retired judge was brought in to hear the motion and arguments. Based on the details in the motion and those oral arguments, the visiting judge ordered Judge Dimple “recused”, finding that significant evidence existed that she was biased in favor of those labeled as alleged victims.

The extra-judicial statements pulled from her social media profiles appear to support the accusations that she was an advocate for victims. Herein lies the problem. A judge must remain impartial (even if only maintaining the appearance of impartiality). An individual who is charged with a criminal offense must be presumed innocent until such time they are proven or plead guilty. In the case of a family violence offense, the “other party” (often referred to as the alleged victim) cannot be a victim until guilt of the accused is proven.

Judge Dimple’s statements call into question her ability to see the defendant with a presumption of innocence because she “advocates for victims” and victims merely need to state that an incident occurred. No trial. No evidence review. Just someone stating something happened. The motion asserted and the visiting judge agreed: her social media posts did not equate fairness to all parties of the case, creating an image of a judge who will not give an impartial verdict in a Family Violence Case involving a restraining order.

Even with evidence provided, there’s a grey area of what social media actions make a judge come off as biased.

Facebook Friends Have Tripped Up Other Judges

A simple Facebook friend request can completely derail a case’s conclusion. A Wisconsin judge made this mistake when accepting a friend request from a mother in a domestic violence case he was working on.

The judge liked posts, sent well wishes, and posted pictures of her with her kids. The judge didn’t engage in any interaction with her and stated that none of her actions on social media persuaded the judge’s decision in granting her primary care of her children.

The judge asserted that he already had his mind made up about the case before he accepted the friend request.

The father of the children filed a motion for reconsideration of the judge’s decision because of access to off-the-record facts. The court reviewed: (1) the timing of the Facebook friend request and the judge’s affirmative acceptance; (2) the volume of the mother’s Facebook activity and the likelihood the judge viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) the judge’s lack of disclosure.

Ultimately, the judge’s decision was reversed, and another judge was assigned because of the “serious risk of actual bias.”

So, What Should Judges Post?

 Judges accept the duty to respect the judicial office and uphold a public image that places confidence in the community. Since their digital footprint will be under scrutiny if anything stands out, Judge Herbert B Dixon Jr. specifically created four helpful commandments for judges to take into consideration before making something public:

1. Maintain dignity in every comment, photograph, and other information shared on social networking sites.

2. Do not make any comment on a social networking site about a pending matter.

3. Do not view a party’s or a witness’s pages on a social networking site or use social networking sites to obtain information regarding a pending matter.

4. Recuse from any case where the social networking relationship with an attorney or party creates bias or prejudice concerning the lawyer or party.

The above commandments stem from the Model Code of Judicial Conduct.

Judge Dimple is a kind, compassionate and fair individual. Her actions should be an example to not only judges but also prosecutors, defendants, alleged victims, and even defense attorneys about the perils of such public broadcast of opinions and positions. Is Judge Dimple biased? Maybe so…probably so. But we see bias in nearly every aspect of the criminal justice system…bias is human nature. It is not whether or not the bias exists – because it certainly exists – it is how well your advocate, your attorney can manage and overcome the bias to unstack the deck. It is your attorney’s job to shield you from the biases that exist and safely guide your case to a conclusion.

It is important to understand that, at this time, she is only recused from that particular case. And it’s not the first time that a defense attorney has tried to get Judge Dimple recused. While the previous motions were declined, it is expected that this will open the door to many more requests for her recusal. And this recusal could certainly have implications well beyond this particular case.

If you or a loved one has been arrested, reach out to receive a fair shot with someone who doesn’t let systemic bias dictate your future.

I DON’T WANT TO PROSECUTE!

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.