Connecticut Law Tribune
Monday, November 02, 2009
Domestic Violence Suspects Get Another Day In Court
Supreme Court endorses added hearing on protective orders
By CHRISTIAN NOLAN
People accused of domestic violence have a lot to lose. Not just their
freedom, but the right to even visit their children.
That was the scenario for a Stamford man who was arrested two years ago for
allegedly assaulting his wife. She said he threw her down a flight of stairs
and kicked her in the head, all in front of their two toddlers.
But the defendant, Fernando A., whose full name is not released in court
records, said the two were divorcing and his wife fabricated the attack
story to gain leverage in family court proceedings. Fernando A., however,
never got a chance after his arraignment to object to the order of
protection issued against him that prevented him from seeing his children.
His lawyer, Steven D. Ecker, of Hartford's Cowdery, Ecker & Murphy, asked
for an evidentiary hearing after the arraignment, but Superior Court Judge
James Bingham denied the request. Ecker challenged the denial up to the
state Supreme Court.
opinion to be officially released this week, a divided court ruled that a
defendant must be granted an evidentiary hearing at which the state must
prove, by the civil standard of a preponderance of evidence, that the order
of protection is a continued necessity.
"All we were asking for is a hearing within a reasonable time after someone
is kicked out of their home and prohibited from any contact with their
children," said Ecker. "It seems appropriate a court would permit a hearing
to consider both sides of the story. That doesn't seem particularly
There are about 19,000 protective orders currently in place in Connecticut.
And in a year when domestic violence cases have repeatedly made headlines in
the state, it's no surprise that the Fernando A. appeal drew interest from
various advocacy groups, including the Connecticut Coalition Against
Domestic Violence and the American Civil Liberties Union of Connecticut.
"Victims should be protected," said Anne C. Dranginis, of Hartford's Rome
McGuigan. "In many of these cases, victims have suffered trauma or fear and
are trying to calm down children."
Dranginis filed an amicus brief on behalf of the Connecticut Coalition
Against Domestic Violence arguing that the people who claim to be victims of
domestic violence - most of whom are women - should not be subjected to
cross-examination right after a spouse or partner has been arrested for
Dranginis said if women knew they would have to face their abuser in court a
day or two after an arrest, that would have a "chilling, deterring effect"
on abused spouses and partners bringing charges.
Conversely, the ACLU of Connecticut argued that there are people who get
falsely accused of domestic violence and they deserve a chance to be heard
before losing their rights, especially the right to visit their children.
In the end, the state Supreme Court issued a 5-2 ruling that all sides
interpreted as at least a partial victory. But how it all shakes out in
court from this point forward remains to be seen. What can be assured is
that Fernando A. and future defendants facing similar orders of protection
have the right to a hearing on the order of protection after their
arraignment and before their trial.
"The defendant may. testify or present witnesses on his own behalf, and may
cross-examine any witnesses whom the state might elect to present against
him," stated Justice Flemming L. Norcott Jr., who wrote the majority
opinion. "This defense evidence, along with the comprehensive initial
proffer and the submission of evidence by the state, further will ensure
that there will be a record adequate to review.the trial court's ruling with
respect to the continued necessity of the criminal protective order."
But at the hearing, the alleged victim may never have to testify, explained
Senior Assistant State's Attorney Robert J. Scheinblum. Prosecutors could
essentially present the same evidence as at the arraignment - police
reports, a sworn victim's statement and the report and recommendation of a
family relations officer - to get the order of protection continued by the
Scheinblum's view is that if prosecutors don't call the alleged victim to
testify, the defense has no right to cross-examination. He doesn't think the
ruling will "dramatically change the way protective orders are issued and
continued," said Scheinblum. "I think the judges will understand they have
extremely broad discretion and can rely on the written materials and
reliable hearsay to continue their order of protection and protect victims
from domestic abuse."
But Ecker's take is that a judge does have the discretion to require the
testimony of any witness, including the spouse or partner who claims to have
been abused. Even children could be compelled to testify in some cases, said
"There are some fraction of these complaints that are not valid," said
Ecker. "My sense is, in those cases where there's any significant doubt, the
court can require the complainant to testify. I think that's the way it
should work. Where there's a doubt, they should testify."
Justice Barry Schaller authored a dissent in a case he heard before his
recent retirement from the court. Schaller noted that the majority decision
said the hearing on the protection order should be held a "reasonable"
period after a domestic violence arrest. Both Schaller and Scheinblum
pointed to the ambiguous nature of that word.
Scheinblum predicted that defense lawyers would likely next challenge what
is a reasonable amount of time, especially if court dockets are backed up in
a particular courthouse. "What's a reasonable period of time?" asked
Scheinblum. "Could be two days, two weeks, two months, I don't really
Commentary by the Ottawa Mens Centre
The comments are riddled with Feminist
propaganda linking allegations of violent fathers and parental alienation, the
Feminist object is not to deal with the issues but divert readers from the
substantive issues one by one and objectively together.
First, more women are violent than men, the statistics fail to include reports by men. Physical violence is one problem, another is even more insidious, its "domestic abuse", its generally prolonged verbal, psychological and sexual abuse that can include button pushing, that borders on psychological terrorism just to get "a reaction" that can remotely justify a call the police that ends a father's involvement with his children.
Some women repeatedly punch their husbands in the head hoping that one day, he will react, leave a small bruise to "justify" a call to the police and use protective orders to ensure the government is responsible for parental alienation.
Throw in a man hating judge who simply wants to engage in the process of justification and yet another child will never see their father again.
While the courts apply such horrible bias against men, vindictive mentally ill women will fail to resist the temptation to add themselves to the list of "victims" in order to gain total control, revenge and of course, financial destruction of their children's father.
Ontario now issues "restraining orders" like confetti without father's having any input and with the most dubious "evidence" imaginable. Quadruple hearsay uncrossexamined affidavit material is often used, in "summary judgment" with "pleadings struck", and topped off with "vexatious litigant" orders just to ensure the father never gets the right to respond.
Its enough to make you want to puke.