Domestic violence charge is a misdemeanor. They are non-jury cases, meaning that you don’t get a jury trial. A judge alone decides it.
From a lawyer’s perspective, even though Attorney Gordon Thompson got a “not guilty” the last time he tried, they are very difficult to win because of how these cases proceed. The way that the dynamics of the cases work out, if it’s a “guilty”, the defendant has an appeal. If it’s “not guilty”, the state doesn’t.
And if it’s guilty, they go to appeal, then if the issue was, “Is the evidence sufficient to support the conviction?” On a bench trial to the judge alone, it’s almost always going to get upheld. So, the judges know when they are listening to the evidence and it’s easier for a judge to say “it’s guilty” because then they don’t have to worry that they find somebody not guilty and then they are going to read their name in the paper two weeks later that the victim was killed by the defendant afterwards.
That’s a common scenario, and even though the judge would obviously deny it, that’s what Thompson believes. It’s far easier for a judge to say guilty than not guilty on a domestic violence charge and generally speaking, jury trials are better than non-jury but for domestic violence charges, there’s not any that would be jury-eligible.
Just thinking of the underlying offenses, you can’t think of any case, certainly not the assaults, that would be jury-eligible. In short, from a lawyer’s perspective, that’s what you see when looking at judges.
That’s a big deal, but as mentioned, the last one Thompson tried was last year and it was not guilty. He thought it was a pretty good case from the state’s perspective, the judge listened to it critically and was a class 1 assault, meaning there was injury and the judge said no, there are questions about credibility with the victim there, so no, it was “not guilty”.
A Lot Of People Ask What To Do With The Case?
It depends on what the jurisdiction is. The first thought is if diversion is an option? A lot of the jurisdictions will do diversion on a first offense. A diversion would constitute, if the person pleads guilty or no contest to the charge, they’re not found guilty, the case is continued for up to a year to allow the person to do the counseling.
If the person doesn’t have any further violations of conditions of release and completes the counseling, then the charge gets dismissed. If they don’t successfully complete the counseling, then they get found guilty and then they get an order to do the counseling.
Many times, even though it can have an adverse consequence, that’s a better resolution because then they can always say, “I was never found guilty of this charge and the state chose to let me do a diversion program rather than try the case on the merits to see if I’m guilty or not”. That’s almost always the better resolution because at least they’re in a little better shape because then they don’t have a criminal conviction on their record. So, that’s always the first choice.
Having said that, in some jurisdictions, for example, the justice courts, that’s not a choice because they don’t offer diversion. In some jurisdictions, for example, Mesa, they will be fairly limited in the circumstances that there is any kind of violence involved, they generally won’t do a diversion.
In those cases, they are always setting the case for trial because if they can’t get a diversion offer. Unless there is a real threat, their claim is going to get a much harsher sentence if found guilty. They’re going to try it because the consequences are so severe if they do get found guilty, there is no reason not to try it.
If diversions are an option, it’s always a good idea unless for some reason, it just won’t in the context of the facts of the case. Taking the example of another case Attorney Gordon Thompson tried a year ago where it was not guilty, the diversion wasn’t a choice because that would have adverse effects against his client in the custody case, but they tried it anyway.
Quite often, an attorney will try first for diversion. If that doesn’t work, it’s a trial; the person will never plead to these.
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