For #18 we head back into the messy and chaotic world that is domestic violence. This case involved a female defendant who lived with the male victim and their child. At the time of the incident the pair lived together, but the victim slept in the living room and the defendant in the master bedroom with their child. The relationship was falling apart.

On this date, the victim returned home from work later in the evening and both TV’s were on-one in the living room and one in the master bedroom. The victim could not find remotes for either TV. Victim went into the master bedroom and continued his search; waking up defendant in the process. Victim woke up and the pair got into an argument. Defendant attempted to push the victim out of the bedroom. Victim responded by wrapping the defendant in a bear hug. Defendant then scratched the victim in the neck allowing her to break free. At this point victim discovered both remotes had been under the victim’s pillow.

Defendant and victim continued to argue. Defendant left the bedroom followed by victim. Defendant got a bat and hit the victim several times in the abdomen, ankle, and wrist causing bruising and soreness. Defendant then went back to the bedroom and stayed there the rest of the evening.

At trial, prior domestic violence where the victim was the dominant aggressor came out on the witness stand. We had been aware of two prior misdemeanor convictions (a.k.a. battery without injury) for domestic violence. Victim however, denied those, but rather told the jury about other instances where he had been involved in with a different victim. Victim also told the jury “he would never hit a woman.”

Victim went on to clarify that the prior DV’s happened because the victim “walked into his fist” and that the defendant in this case always like to walk away from him when they argued. He even went on to describe an occasion where he had been pointing his finger at defendant and she walked into it, scratching herself in the process.

It was also discovered that prior to reporting the DV the victim had consulted with his mother and then a family law attorney and that there was currently a child custody proceeding pending between the parties.

My case-in-chief was a mess. At the end of the day the Judge called us to the bench and told counsel that in her opinion the victim came off looking like a batterer and she believed we were being used as pawns to further the pair’s child custody cases.

The Judge’s statement was not misplaced. Often as prosecutors we have to take into account the motivations for reporting a crime and for pushing it to jury trial. Delayed reporting, like what was done here, is often is a red flag for misuse of the criminal justice system.

I was also concerned because self-defense in situations where the parties know each other and have had violent encounters in the past means that often the need to use physical force in self-defense is justified at a higher level and more quickly than if the parties were strangers.

Upon reflection that night I came to the conclusion we could not disprove a valid claim of self-defense in this case. We put the case on calendar and dismissed it outside of the presence of the jurors in order to keep them from having to attend an additional day of trial.

Justice was served in this case without a jury. It was served by a dismissal of the case when the facts presented made it necessary. It was a lesson that continued evaluation of criminal cases is necessary, even in the middle of trial. The most important thing is to do the right thing, and in this case, the right thing was a dismissal.