Oklahoma Criminal Defense Blog

Any criminal defense lawyer in Oklahoma will tell you when the police get a call for domestic abuse, there’s a guy who is headed to jail.  It doesn’t matter what his spouse or girlfriend says at that time about what happened and certainly doesn’t matter what she says in the days or months later.  Law enforcement and prosecution have set their ears to “deaf,” and will push to prosecute no matter what.  What the police report says, however much disputed by the witnesses who were there, is written in stone for the prosecution, which will always put the worst spin on any nuance of fact and only that worst interpretation.

The U.S. Army is different.  The Army recognizes there are problems in their communities, but they take an approach that involves listening to what happened and involve social workers, chaplains and physicians in an administrative process that is apart from criminal charges.    It does not replace criminal proceedings, but not all suspected cases are prosecuted in criminal proceedings.

The Defense Authorization Act of 2000 provided for the creation of a Domestic Violence Task Force, which created a Case Review Committee (CRC) at most major Army installations.  The CRC is a multidisciplinary team appointed by the installation or garrison commander and supervised by the Military Treatment Facility Commander.  The CRC is overseen by the Army Facility Advocacy Program (FAP).  The purpose of the FAP is “to prevent child abuse, to encourage the reporting all instances of such abuse, to ensure the prompt assessment and investigation of all abuse cases, to protect victims of abuse, and to treat all family members affected by or involved in abuse.”  The purpose of both the FAP and the CRC is to promote and encourage stable and productive families in the Army.

The Case Review Committee (CRC) is composed of the Chief of Social Work, Services, who serves as its chairperson, the installation chaplain, a physician, a representative from the CID (Army Criminal Investigation Command Division, as the Army’s detective organization is known), the Army Substance Abuse Program Clinical Director, the Provost Marshal (also known as the military police), a judge advocate, the Family Advocacy Program Manager, who oversees the Family Advocacy Program at the installation, and the case manager.

The committee meets regularly to review cases of domestic violence and recommend treatment and prevention programs.  It conducts hearings, and that is where judge advocates play an important role.

There is a two-part procedure, first to investigate whether an allegation can be substantiated and determine the best avenue to protect the alleged victim and to properly treat and rehabilitate the alleged offender.  Judge advocates must advise on the legality in obtaining evidence, weighing evidence, and making proper findings and recommendations.  Judge advocates are attuned to ensuring that soldier’s suspected of committing a criminal offense are advised their Miranda rights pursuant Article 31 of the UCMJ (Uniform Code of Military Justice), unlike the police and criminal prosecutors who always push the boundary as much as they can, fully committed to the adversary system.

Of course, the CRC is an administrative process.  It provides for a burden of persuasion that is common to administrative proceedings and civil matters generally, unlike a criminal prosecution.   Findings are made when the finders of fact are persuaded by a preponderance of the evidence, rather than beyond a reasonable doubt.

Also unlike the civilian criminal proceedings, the Army regulations provide that when a soldier refers himself to a social worker or counselor, that person should stop the interview and call CID or an MP for advice about advising the soldier of his rights.  The Army regulation is clear in pointing counselors and social workers to the importance of obtaining legal advice when they are involved in witnessing a communication that might be privileged.   The Army takes literally the Fifth Amendment privilege against self-incrimination, and, in Army criminal prosecutions, requires for a valid arrest the reading of the Miranda warning.

The committee is directed to balance soldier rights and family member protection.  When it votes on the evidence to find a “substantiated” charge, it must recommend a treatment plan and provide family protection if necessary.  In deciding the treatment plan, the CRC refers to an “incident severity index” found in the Army Regulations.   This index is not an answer to every case but a tool the committee can use for classifying different levels of severity.

The CRC responsibilities continue after it makes its rulings.  Reconsideration of its findings can be sought from a soldier, his family, the commander or the CRC can.  This is completely different from the civilian criminal prosecution juggernaut that never veers away from trying to convict from the moment the police arrive at the scene of the call.

The CRC process and its wide mission of healing all parties may change.  In 2000, the Task Force on Domestic Violence recommended creation of a Domestic Violence Assessment and Intervention Team (DVAIT).  It would be managed by the FAP, but unlike the CAC, it would not make any findings to substantiate allegations but focus exclusively on assisting the alleged victims and leave the commander and law enforcement to decide on prosecution options.

Charlie Sheen is the highest paid actor in television today.  He also appears to be one of the more troubled.  His problems cannot stay out of the headlines.  Star movies such as Platoon and Wall Street and the hit comedy series, “Two and a Half Men,”   Sheen, son of well known movie star, Martin Sheen, has struggled with alcohol and drug problems for years.

“Two and a Half Men” is one of the most popular TV programs and one of the costliest for advertisers.  The average cost of a 30-second ad in the show is $226,335, according to Ad Age’s annual survey of ad prices for prime-time broadcast programming.  That price is just behind NBC’s Sunday Night Football and ABC’s Grey’s Anatomy.  CBS is concerned Sheen may not show up to carry on their prized television show, either this time or the next time.  For a while, his bad-boy image carried a little glamour, but as his antics have continued, his unpredictability is a liability to television producers and advertisers.

In the nineties, Sheen was a regular in the tabloids for his problems.  He reported struggling with use of ecstasy three years before, saying, “Ecstasy should be called the drug from Hell – because tha’s where it leaves you.”  His bad publicity goes back to 1990, when he checked himself into a drug and alcohol rehabilitation clinic.  In 1995, he was sued by a woman who claimed he struck her in the head when she refused to have sex with him.  But the apex was when was his appearance as a witness in the 1995 prosecution of Hollywood madam Heidi Fleiss in which he admitted he had ordered at least 27 prostitutes from madam Fleiss and ran up bills totaling $50,000.

After ending a six-month marriage to Donna Peal in 1996, , Sheen announced he was becoming a born-again Christian.  He said fast living was a lot of fun but “there is such a thing as too much fun.”

His latest problem had started Christmas morning, his third wife, Brooke Mueller, called the police to report a fight in the house they were renting in Aspen, Colorado.  They have been married since 2008 and have two children but they were legally separated before the fight.  Sheen’s version is that he was fighting about Mueller’s partying and she went nuts on him. He admits to breaking her glasses but denied attacking her. Mueller’s version to the police, so the police claim, was that Sheen choked her and threatened her with a knife by holding a swtichblade knife to her throat, but since then she has quit talking to the police.  Sheen posted $8,500 bond that night and was released.
Later Sheen entered rehab “as a preventive measure,” prompting invention of the word “prehab.”  Mueller, who has said she has no plans to divorce Sheen, then went into rehab.

Sheen faced a prison sentence with this charge, but a plea bargain apparently reached with the prosecution would deliver Sheen to the Pitkin County Jail for a spell, maybe up to thirty days.  There, the cells look like dormitories, floors are carpeted, a nearby hospital prepares the meals for lunch and dinner, supervised by a dietician.  Charlie Sheen had prime rib on Christmas, causing furor in the tabloids, but that was the regular menu that day for all inmates.

Pitkin County Sheriff Bob Braudis presides, and he notes that most of his inmates are pretrial inmates, presumed innocent of the charges they face, which criminal defense lawyers are acutely aware but many law enforcement types are not.

The jail has a capacity of 24 but usually averages nearly half that, supervised by a staff of 12.  The sheriff hopes inmates will leave better men and women. The county’s website gives the jail’s mission as a safe, secure environment and services to “enhance physical and mental wellness and encourage self rehabilitation and successful re-integration to society for all inmates.”
Prisoners spend their days in the common room, watching television, reading, playing cards or otherwise passing the time.  They are allowed to place collect telephone calls, exercise  and visit relatives and friends regularly.  They can also go outside in the jail parking lot so long as they stay inside a fence.

Sheen’s latest problem had  seemed to be worked out, but a new wrinkle has developed.  Sheen was set to serve his jail sentence by coaching actors at Theater Aspen by day and return to jail by night.  Now reports are that the deal has fallen through, reportedly because an Aspen jail official tried to reduce the daily time Sheen would spend at the theater, out of jail.  And Sheen, a chain smoker, would have been banned from smoking outside the jail, faced a longer probation period, and would be restricted to eating only the meals provided by the jail.  That plea deal would have amended the most serious of the charges to a misdemeanor, the charge that could send him to prison for three years.  Sheen is still getting $1.8 million per episode of “Two and a Half Men.”

I can’t imagine this kind of a sentence being handed down in Oklahoma or for other domestic abuse defendants, especially with multiple offenses. However, it appears that at least some in the Hollywood crowd have been deemed to be above the law. With these examples of nothing punishments it’s no wonder Sheen keeps repeating the same criminal offenses. Our system was designed with the intent that the punishment would fit the crime, but it certainly appears to be failing with this domestic abuse case.

In Massachusetts, the state probation officer estimates that about a quarter of all restraining orders are violated.  Tracking is designed to follow those against whom judges have issued restraining orders.  Judges order them to Global Positioning System monitoring devices to be sure where they go does not violate their restraining order.
Twelve other states have passed legislation like that in Massachusetts, and about 5,000 domestic abusers and alleged abusers are now being tracked by G.P.S.  nationwide, according to Colorado’s Electronic Monitoring Resource Center, which gathers data from equipment vendors.

The G.P.S. monitor can be used after sentencing, as an alternative to jail, or before conviction, as a condition of bail.  The U.S. Marshals commonly use a monitor for both, since federal authorities always have more money available.

Those who seek restraining orders to protect themselves from stalking often have trouble proving they have stalked.  But if their alleged stalker is wearing a monitor, the monitor can make the case for them by laying a trail of their whereabouts.  The U.S. Department of Justice reports that 3.4 million in the country have stalked in one-year period of time.

Experts claim using the G.P.S. monitors can save lives.  The Jeanne Geiger Crisis Center in Newburyport, MA, has assisted seven other cities follow the model of the Greater Newburyport High Risk Response Team, which trains probation officers, police officers, and district attorneys to decide which domestic violence cases merit electronic monitoring.  The Center trained over 1,000 officers, advocates and prosecutors in 2008, looking at danger signs in the behavior of abusers or alleged abusers.

One approach to G.P.S. monitors views them as devices that can make the criminal justice system capable of detecting escalation in the behavior of potentially very dangerous batterers, of giving the capability of preventing serious injuries.  Some research suggests that one quarter of the women who were killed by a domestic abuser already had obtained restraining orders.

In Massachusetts, about 100 people accused of domestic abuse are monitored by a G.P.S. device.  They pay $8.00 a day for an ankle bracelet, a cell phone type device that is worn on the belt, and a home charger.  Three control centers watch their movements, and they will notify the police if a monitored person goes beyond a certain zone.

But G.P.S. devices are not a guarantee.  The wearer can remove the device and take the consequences, which will follow eventually.  It’s just a question of when those consequences occur and what takes place before those consequences kick in.