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My Arrest and Conviction for Domestic Assault
by Bill McGaughey
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first arrest | police report | second arrest | police report
events leading up to this incident
After eleven years of marriage, my wife and I had been discussing divorce. Either we could agree to an amicable settlement or fight it out in the courts. My wife was fishing for financial information to use against me. I was still trying to decide if we should have a divorce.
Matters came to a head on Friday, February 18, 2011. This was three days before my 70th birthday. My wife Rose (not her real name), born and raised in China, was 54 years of age. She was in the process of mailing packages of books to her daughter who lives in northern Virginia. My wife and I lived in adjoining units on the second floor of a four-plex located in Minneapolis, Minnesota.
On that day, I took two boxes of books to the post office for my wife and later helped her carry suitcases between a storage place in the basement and our second-floor living quarters. I had mailed ten similar boxes the day before on her behalf. In the afternoon on Friday, I paid bills. An identity thief had charged his or her cell-phone bills to my checking account. Since the thief had my account number and routing number, the bank had requested that I close the account and open up a new one. I mailed at least ten letters to vendors to pay my bills and restore automatic payment from my new account. This problem required immediate attention.
As I sat in my office in front of the computer, my wife came into the room and took a chair immediately behind me. She peered over my shoulder to see what I was writing. Perhaps it was something about to our prospective divorce?
My personal checkbook was on the table next to the computer. My wife grabbed the checkbook and started reading aloud from the check register. $1400 - what was this for? $800 - what was that? She wanted explanations for several entries. For a time, I continued working at the computer. However, my wife’s persistent questioning began to bother me. I felt that she was invading my privacy. The checkbook was mine, not hers. She had her own checking account. It seemed that my wife’s aim was to find “dirt” that could be used in divorce proceedings.
For all these years, my wife had given me no help in managing my rental properties. I would just give her money when she needed it. Normally this was three hundred dollars a month. Additionally, my wife had access to my credit card for which I paid the monthly bill. Even during the three years when she worked at Target, my wife contributed little to our household expenses. Much of her income went to help pay our daughter’s tuition at a private college. Some of the rest went into my wife’s 401(k) retirement fund. Meanwhile, I accumulated several hundred thousand dollars in personal debt that I did not previously have.
a physical altercation
I became angry that my wife was looking through my check register which recorded both personal and business expenses. I repeatedly demanded that she give it back to me. My wife ignored my requests. Suddenly, I tried to take the checkbook from her hand. She switched it to the other hand. At this point, I put both of my hands over hers and pried the checkbook loose.
During this process, my wife leaned down and bit me. She bit me on the top of my hand in an apparent attempt to make me drop the checkbook. To free my hand, I jerked it out of my wife’s mouth and pushed her away from me. At no time did I strike my wife. When I had the checkbook firmly in hand, I placed it in a pocket of my trousers and left the room.
Later, the police report claimed that my wife’s mouth was bleeding because I had struck her in the face. I did not see any blood at the time. It’s possible that my wife bit her lip after the incident or that an injury occurred as a result of my pulling my hand up and away from her mouth.
My wife threatened to call 911, the police emergency number. With foolish bravado, I said: “Sure, go ahead.” Although I did not listen closely to the conversation, I could hear my wife sobbing into the telephone. She was telling the 911 operator that she was afraid of me. Although I do not know exactly what she told the operator, I had the impression that she was pushing all the right buttons to make the police come quickly.
I remained calm. A tenant in my adjoining apartment building had called to ask if she and her infant daughter could have a ride to a nearby building. I had agreed. Now she was standing at my front door. I went down the stairs to the front door and walked outside. My car was parked on the street in front of the house. I drove the tenant to a building several blocks away and promptly returned.
For a few minutes before the police arrived, my wife and I sat together at a table in the hall. She had calmed down by then. We did not talk about the incident with the checkbook. While I do not have a clear recollection of our conversation, I think I might have told my wife that it was a mistake to have called the police because the matter was now out of our hands.
arrested by the Minneapolis police
There was a knock on the front door. Our little York terrier, Do Do, began to bark. Since the door was unlocked, two Minneapolis police officers let themselves into the house. One was a white-male officer and the other was an Asian female, most likely Hmong. Our dog was standing half way down the steps barking at the officers.
I walked down to where Do Do was and picked him up in my arms. Then I walked back up the stairs, opened the door to the unit on the right, dropped the dog on the floor, and then closed the door to that unit. Now that the place was quiet, I expected to have a rational conversation about the incident with the police.
Immediately after I had closed the door, the white-male police officer standing in back of me ordered me to face the door and put my hands behind my back. He slipped handcuffs on my wrists. Then the female officer led me down the steps to the squad car parked in front of the house. I said nothing and the officers asked me no questions. I thought there might still be bite marks on the back of my wrist that I could use to explain what happened.
There was barely enough room in the back seat of the squad car for me to sit. I had to position myself sideways to fit between the seat and a barrier in front. My arms were held tightly behind my back. The female officer turned on a computer and asked me a set of routine questions. I asked if she would take a look at the bite marks on the back of my hand. She said she would in a few minutes but never did.
The time dragged on. I was sitting in the back seat of the squad car for perhaps half an hour as the male officer questioned my wife inside our house. The handcuffs were squeezing my wrists so hard that I felt a loss of circulation. When I pointed this out to the female officer, she loosened the handcuffs and the circulation began to return. During that time, she asked me no questions. Neither did she look at the bite marks that I had mentioned.
At length, the male police officer returned to the car. He read me my “Miranda rights”. He said I could talk with him now or talk in the presence of an attorney; and, if I could not afford one, the court would appoint an attorney for me. I chose the third option. I asked the officer if he had read the same rights to my wife. He said, no, he was arresting me, not her. I told him about the bite marks. He said he would look at them at the booking station downtown.
It’s a ten-minute drive from my house to the jail downtown where the Minneapolis police book people. The detention center is next to the Minneapolis city hall. We first approached a garage door operated by remote control. Once inside the building, I was ordered out of the car. I slid along the seat with my wrists handcuffed behind my back and exited the car.
booked at the county jail
I entered a room where several Sheriff’s deputies were standing. The first step was to place my right and left index fingers on a glass sensing device to take my finger prints. The male officer who had arrested me then appeared with a flash camera. He took a photograph of my hand with the bite mark from a distance. Since I have freckles and more than an hour of time had elapsed since the biting incident, I doubt that much showed up in the photo. The officer remarked that the bite had not pierced my skin.
Then another deputy ordered me to stand against a wall and spread my legs. When I headed for the wrong wall, he sternly redirected me. The officer patted down my body in several places and removed everything that I had in my pockets. It was primarily my wallet and the checkbook that had precipitated the incident between me and my wife. I was not wearing my glasses. I also was not wearing a watch or carrying my house keys when the officer led me out of the house.
Next I was asked to go into a small room and remove all my clothing except for the underpants. I was given a pair of sandals and a pajama-like shirt and pants which were to be my jail attire. I was not allowed to wear my undershirt or the white-cotton socks.
The jail property room was across the hall from the changing room. I put all my clothes in a bundle and, standing at a counter, handed it to a receiving clerk behind a glass panel. The clerk told me that I could keep my cotton socks. After removing my sandals, I put the socks back on my feet. I was given a red paper band to wear on the left wrist.
My personal belongings were examined.
All the money, credit cards, and assorted pieces of paper were removed from my wallet. A pair of clerks counted the money twice. I had $320 in my wallet, including $200 in rent recently collected from a tenant. The property-room clerk inventoried my shoes and street clothes. He gave me a piece of paper marked “Hennepin County Sheriff’s Office ADC/ Inmate Personal Property Receipt”. I was “Book # 2011004511”. The paper indicated that I had been received into the jail on 02-18-2011 at 1757 (5:57 p.m.)
Now a sheriff’s deputy asked me to go into a numbered holding room. An apple was lying on the bench. I washed it in the sink and kept it with the paper that I carried around. Then I availed myself of a stainless-steel toilet in the corner.
A young white man whose last name was Hopkins was sitting on a bench. At first, neither of us spoke to the other. Finally, I asked him why he had been arrested. It was because he had failed to keep a court appointment and a bench warrant had been issued for his arrest. The young man’s closest relatives lived in Texas. He himself lived in the Salvation Army shelter downtown.
Now it was time for mug shots. I stepped into a small room to be photographed from two different angles - from the front and from the side - while standing in foot prints outlined on the floor. A kindly, elderly woman sat behind a counter on the other side of the glass. She asked me about tattoos, scars, and other names that I might use. I dared her to find the facial scars I had received as a boy. She took it in good humor.
Now it was back to a holding cell. This one held five or six persons. Next to me was a black inmate sleeping on the bench. Periodically, a Sheriff’s deputy would open the locked door and call someone’s name. Then the released inmate would be directed to the next place involved in the processing routine. The wait time in each cell was about twenty minutes.
At one point I was asked to visit the nurse’s station down the hall. A male nurse asked me some questions about my health. Did I have any of the diseases written on a list or did I have allergies or use certain medications? I could think only of cavities in three teeth. The nurse said that dental services might be available next Wednesday. If I had been smart, I might have said that I had recently been bitten. Perhaps a doctor’s report would confirm my injury. However, the question did not occur to me until later.
Returned to another holding cell, I was in the company of six other inmates. Three of them were black and three were white. This group was more talkative. A young black male recognized me. Was I still married to Sixpack’s mother? Did I still own rental property on Glenwood Avenue? The answer to the first question was “no”; to the second question, “yes”. This man’s name was “Sean”. He was the son of a former tenant and the brother of two other tenants who had rented apartments from me in the mid 1990s. His mother now lived in Brooklyn Park.
Several of my fellow inmates were in jail because of bench warrants issued when they failed to make court appearances. One man said he had been arrested three times in connection with the same offense. We were all aware that people arrested on that day, Friday, February 18th, might not be released until Tuesday, February 22nd. The next two days were on the weekend and Monday was the President’s Day holiday. However, it was rumored that a judge might review cases on Saturday and possibly release some people or reduce their bail. Mine was set at $2,400.
I was summoned from this holding room to talk with a young man at a desk who asked about my finances. My sources of income were Social Security retirement, a state pension, and profits, if any, from my rental-property business. I explained that my federal income tax showed that I had lost money last year as a landlord. Rent collections and maintenance costs varied greatly from year to year. How much would I make “in a good month”, the man asked? I said: $1,000. He put this number down as a component of my monthly income.
I later realized that the purpose of this questioning was to determine whether I should have a court-appointed attorney or be required to hire my own attorney. The extra $1,000 put me in the latter category. The man encouraged me to seek the services of a private attorney after my release from jail.
I now realized that I had answered the arresting officer’s question unwisely. He had implied that a court-appointed attorney would be on hand when the police questioned me. In choosing that option, however, I was allowing my wife’s statements to the arresting officer be the only information included in the police record. There was no court-appointed attorney available in the jail and, due to my inflated income, it was unlikely that one would represent me in the court proceedings. The judge would have only my wife’s testimony to decide what had happened.
The young man at the desk asked me for the name and number of a contact person. I chose Joe Nelson (not his real name), my former wife’s brother, who helps manage my rental property. I also gave my wife’s name and telephone number so she could be contacted concerning my whereabouts. It was here that I learned that my wife allegedly had blood on her lip when she spoke with the arresting officer. There was a photograph.
After that conversation, I went back to a holding cell. The racially mixed group of inmates there revealed interesting facts about themselves. Some had $5,000 bonds; I was comparatively lucky. While there were telephones in the cells, the inmates could use them only to make collect calls costing $10 per call. Incoming calls could not be received on those telephone lines.
Some inmates were considered “PC”. This meant they were arrested “with probable cause” (not that “political correctness” was a factor in their arrest). I remain unclear whether PC arrests are more serious than the other kind. I did know that inmates such as myself who wore jail clothes were charged more seriously than the people wearing street clothes. I was considered a violent offender.
Now it was time for one of the main parts of the booking operation: finger printing. The prints that were captured when I first entered the detention center were supplemented by two other sets of finger prints received electronically.
First, both my left and right hands were run over an optical scanner. I had to press down firmly on the glass to make a legible impression. Then each of my ten fingers, including the thumbs, was screened separately on a scanner. I had to roll each finger side to side while pressing down on the screen. If this did not leave an adequate impression, a “reject” message would appear on the screen which meant that the operation had to be repeated.
On average, it took three attempts each time to achieve a satisfactory result. I almost felt sorry for the Sheriff’s deputy in charge of this function. He would spray the machine with a cleanser hoping for a better result. When we had a fully extended image with red blotches in certain places, the result was OK. Eventually, we got through all ten fingers. Words at the top of the screen read “Criminal booking: William McGaughey”
Then it was time to step over to a table across the hall for another set of finger prints. This time I had to slap both hands on a sheet of inked paper. With wet ink on my hands and fingers, I rolled my fingers on a sheet of paper, leaving inked impressions. I underwent this procedure two times.
I was now allowed to make my free phone call. There was a bank of telephones on a nearby wall. I wanted to call Joe Nelson but bungled the procedure. After an inmate picks up the phone, he is asked to choose one of three options. Having little idea what these meant, I picked option 3. I was hoping that Joe would pick up the phone and we could talk. Instead, I listened to a recording which seemed to suggest that I was leaving a message for Nelson. He never received any message from me.
After the finger printing, I was returned to another holding room. A young black man and I started talking about our arrests. He, too, had been arrested for domestic assault. The man admitted that he had struck his girl friend who was pregnant with his child. That had happened several days earlier. The girl friend had not wished to file a complaint. Instead, the complainant was the girl friend’s female friend. The police searched for this man in a number of places. He was in the back room of an apartment unit when they finally caught him.
We both agreed that the legal system is focused on punishing male domestic-abuse offenders. In his case, the state prosecuted him even if the victim was opposed to prosecution. If a victim initially complains, the state will not allow her to change her mind. Personal relationships mean little to the state - they want a male scalp. In my case, it was necessary only to have evidence from one party to the dispute - the female side - to launch a prosecution. The man is inherently the guilty party.
I was then taken to a desk where an Asian woman asked questions pertaining to my mental health. Did I have suicidal thoughts? Did I think people were out to get me? That was the tenor of her questioning. I answered “no” to all such questions. At the end of the interview, I expressed the opinion that I was in jail because of “manufactured” charges. With surprising candor, the woman remarked that this sometimes happens.
The woman asked me if I wanted an inmate’s handbook. I said I did. She asked me if I wanted to stay with a group of inmates or have my own cell. If the latter, I would be locked up for twenty-three hours in the day. I chose the group setting. If I wished to change my mind later, I could inform a deputy when he made the rounds. I received a light-green plastic wrist band with bar coding that displayed my frontal mug shot.
I went back to another holding cell with some of the same persons as before. It was approaching 9:00 p.m. I had been in jail for over three hours while being processed for intake. I finally ate the apple that I had been carrying.
off to my permanent cell
A female deputy came for the people in my room. There were four men and a woman. In the hallway, we were each allowed to pick out bedding that we would use that night. There were two sheets, knotted at the end, and a light blanket. We were not given a pillow. We marched down one hall after another on the way to our cell. The deputy made us walk along one side of the corridor as we went to another building.
When we reached our destination, a deputy would call out the name of someone in our party and assign that person to a particular room. Mine was the “F” room. The deputy said that I had the “4 down” bed, meaning the lower berth of a bed that was straight ahead and a bit to the left.
A man was occupying the berth on top of mine. Other men were occupying the lower berth of the beds on either side of me. There were perhaps nine or ten men in this room. A large television set was across the room from my berth. At this hour, it was turned off.
The half-bearded man in the bunk to my right seemed to be the dominant personality in this room. He asked if I was another “light-rail offender”. Several inmates here were persons who had neglected to buy tickets before boarding a train on the Hiawatha light-rail line. Unlike buses, there were no drivers who checked tickets as riders boarded the vehicle. Instead, Metro Transit police do spot checks in the rail cars. Now I was learning that persons who could not produce the required tickets went to jail. Even for a person who used to work at Metro Transit, such punishment seemed a bit on the draconian side.
I identified myself as someone who had been arrested for domestic assault and explained the circumstances of my arrest. I said I would be spending my 70th birthday with the people in this room. (This happened not to be true. I spent my 70th birthday starting to write this narrative.) They said they would give me a birthday party when the time came. The man in the neighboring bunk gave me the nickname “old school”. There was a man in a nearby bunk nicknamed “bed rash” or something like that.
I learned that we were a group of older inmates. I was lucky not to have been thrown into a room with young punks out to prove themselves by abusing older people. The man in the neighboring bunk called our unit the “battered men’s shelter”. He would remain in the unit until March 15th. “Bed rash” expected to be released on the following day. A judge would be visiting the jail around noon on Saturday to make release decisions.
My fellow inmates speculated on my fate. Since I was a first-time offender, the court would probably treat me leniently. The prosecutor would try to persuade me to plead guilty to a lesser charge, promising that I would be immediately released. If I were convicted in a trial, the most I could receive would be a $500 fine. There would be no time in the work house.
The disadvantage of accepting the prosecutor’s offer would be that, if I pled guilty to a lesser charge, I would then have a record. If a similar offense happened in the future, the penalty would be more severe. On the other hand, if I pled innocent, the prosecution would have to prove the case against me in trial. If my wife did not attend the trial, I would be unable to cross-examine the prosecution’s chief witness. The court would then be forced to dismiss the case against me. On balance, it seemed best not to plead guilty to anything.
With fake bravado, I said that I did not care what the court did. I knew what had really happened in the altercation with my wife. In fact, I was looking forward to spending several days in jail. After the stressful events of the past several days, this would be like a vacation. I would force the government to spend some money to provide me with food and lodging while I sat here.
Promptly at 10:00 p.m., the ceiling lights went out. A dimmer set of night lights remained. That did not stop the conversation from continuing. Some of it concerned female deputies seen as sex objects. The man in a neighboring bunk told dirty jokes. The black man in the bunk to my right and the man above me joined the conversation. We were all having a good old time in this “Club Med” of the county jail.
I settled in for the night. The bed was reasonably comfortable. Even though it was hard for me to fall asleep, I was not unhappy or depressed. The group conversation eventually ended. The room became still.
I am released with bail
Around midnight, a deputy suddenly called my name. “McGaughey, get up. You’re being released.” It was a complete surprise. I was asked to gather my bedding and come out into the hall. Before leaving, I told my fellow inmates that I had enjoyed our brief time together. I shook hands with the man in the bunk next to mine.
Out in the hallway, I told the deputy that my fellow inmates were a great group of guys. He said he disagreed with that assessment. Even so, we walked amiably down the set of corridors back to the property room in the neighboring building. The deputy said he walked this course maybe fifteen or twenty times a day. I told him I wished I had his job since I needed the exercise.
Another deputy sat at a desk processing my release papers. My friend Joe had provided bail through the Goldberg bail bond firm. First, I needed to recover my clothing and other belongings from the property room. After dressing, I should take an elevator to the upstairs lobby and then walk a block and a half to the Goldberg office where I could use the telephone to call my ride. The directions to this office were shown in a map. I asked if I could keep my colored wrist band as a souvenir of this experience and was told I could.
my release papers
This deputy then gave me my release papers. Here I learned that I was being charged with “Domestic assault - misdemeanor - intentionally inflicts/ attempts to inflict bodily harm on another.” I wondered how the arresting officer could determine my intent if he had not asked me any questions.
My court appearance was set for Wednesday, February 23, 2011 at 9:30 a.m. The hearing would be held in the Public Safety Facility at 401 South 4th Avenue in Minneapolis. This was the building from which I was now being released.
The deputy also gave me a yellow sheet of paper marked “NO CONTACT ORDER / CONDITIONAL RELEASE ORDER”. It was signed by the printed signature of a district court judge whose name was Mark Wernick. The order stated “To the defendant: You are hereby released from custody and ordered to obey the following terms and conditions. Failure to comply with these conditions may result in your arrest.”
Four boxes were checked:
1. “Post Bail/Bond in the amount of $2,400.”
2. “ Do not commit any criminal offense. It is a crime for a person charged with a felony, convicted of a crime of violence, convicted of domestic assault or subject to an order for protection to possess a fire arm.”
3. “Do not have direct or indirect contact with (my wife’s name). (A box marked “female” was checked.) Stay away from (my home address) Except with a police escort to recover prescription medications, personal clothing, toiletries, and ___.”
4. “ You must appear at all COURT APPEARANCES.”
Condition number 3 was the kicker. Here I was being released to streets in downtown Minneapolis right after midnight. The temperature was hovering around zero degrees Fahrenheit. The court order forbade me to stay in my own home which was within an hour’s walking distance from downtown. Either a ride was waiting for me and a place to sleep would be provided or I would be spending the next several days seeking late-night admission to a homeless shelter or sleeping under a bridge.
What kind of justice was this, I thought? How did the judge know that I would be a threat to my wife if I slept in my own home? Was there even a real judge, and not just a printed signature, behind this piece of paper? No, it seemed to be a “one-size-fits-all” policy in a system run amok.
I had better luck at the property room. The clerk gave me my clothing back along with the wallet and check book. The cards and papers were in envelopes. Instead of cash, I had a check for $320 signed by Richard Stanek, Hennepin County Sheriff. I had allowed him to put a lawn sign in my yard when he first ran for Sheriff.
Then the property room clerk handed me a black-leather coat warm enough to withstand even the cold winter temperatures experienced in Minneapolis. She also produced a thick wool hat and a small pair of gloves. I asked where I might return the coat after using it. She said that I did not have to return the coat but, if I wished to do so, I could return it at this facility. It was my first experience with welfare for criminals or persons charged with crimes.
Joe takes me in
Being rather confused at this hour, I could not follow the directions to the Goldberg bail/bond office. I also did not have my glasses. Therefore, I misread one of the street signs and wound up a few blocks east of where I should have been. But then I found my way back and located the Goldberg office. The door was locked.
I could see a man sitting behind a desk. I buzzed and he opened the door. I was asked to complete and sign a form, agreeing to pay Goldberg back the $2,400 if I failed to make my court appearance on Wednesday. Then I was allowed to call Joe Nelson on the phone. Joe said he was waiting for me in a black van parked a block away on 4th street.
Joe had been waiting in the van for two hours. Since I was forbidden to sleep in my own home, he let me spend the night in his home in Brooklyn Park, about thirty minutes drive north of downtown Minneapolis. I slept on a sofa in the living room of his house. Joe had borrowed money from a half-sister in Missouri to raise my bail.
To be honest, I had enough money in my wallet to bail myself out of jail. On Friday evening, I had actually been looking forward to a three-day stay in the detention facility. However, Joe’s kindness and concern were remarkable. I could hardly complain.
Joe had purchased a newspaper called “BUSTED” from a gas station for a dollar. For a time it seemed that the personal recognition that had eluded me in most other areas of my life might be found there among the mug shots of persons arrested not only for domestic assault but also drug possession, robbery, DWI, probation violation, forgery, and disorderly conduct during the past week. No such luck. My offense was of little interest to this publication.
a police-escorted visit
Taking advantage of the police-escort exception to the no-contact order, Joe and I visited my home west of downtown Minneapolis on the following day to retrieve some of my belongings. Besides clothes, I wanted my iMAC computer along with its keyboard and mouse. I decided to leave the printer behind at that point. I made a list of some other items I wanted to retrieve.
We had to wait over an hour for our police escort to arrive at the house. The male officer told us that if my wife disputed the removal of any item, it would have to be left in the house. Fortunately, there was no such dispute. My wife seemed somber and subdued. She had packed some clothing for me in a duffel bag. I explained to her that the no-contact order would make it impossible for us to communicate for at least the next several days. I told her about the hearing on February 23rd.
As I was carrying the computer down the steps, there was a knock on the front door. It was my step-daughter who lives in northern Virginia. She had taken the early morning flight from Dulles airport to Minneapolis intending to bail me out of jail. She had also brought money for her mother. Do Do was in the next room with my wife. When I opened the door, the dog ran out to greet me with joyous squeals.
This time, the Minneapolis police were cordial and helpful. I now had my computer without a printer or internet connection. I had a few more clothes. Joe Nelson and I spent much of the weekend together. I slept first on a couch and then in a bed in his house. We saw a herd of deer while looking out the back window.
I shouldn’t say this but I violated the judge’s no-contact order by meeting privately with my step-daughter, Violet (not her real name, at a coffee shop near the house before she returned to Virginia. I can’t say that this meeting helped to resolve any issues between me and my wife but the intention was good.
the pretrial hearing
I was ordered to attend a pretrial hearing on February 23, 2011, where I supposed I would be allowed to plead guilty or not guilty to the charges. The hearing was held in room 143 of the same facility from which I had been released four days earlier. Joe loaned me his car. I drove from Brooklyn Park to Minneapolis and parked on LaSalle Street on the south edge of downtown. It was a twelve-block walk to the Public Safety Facility.
I checked in with a clerk in the courtroom who asked if I wanted to apply for representation by the Public Defender. If so, I should go to room 133. There I filled out a form concerning my personal finances. The fact that I received $24,000 per year from Social Security and a pension disqualified me from the this program. What was the guideline, I asked? The woman would not tell me because she said I might tell others who would try to game the system. All she would say was that I was well above the eligibility limit.
Judge Mark S. Wernick - the real man behind the signature - was already hearing cases when I returned to the court room. The city prosecutor was a man named Stephen Norton. The court room was crowded that day. Joe arrived around 10 a.m. and sat next to me. For the next three hours, we listened and watched as a stream of defendants stood before the judge with their attorneys. Many pled guilty to a lesser charge.
I learned something about the law listening to attorneys explain the consequences of a guilty plea. I learned, for instance, that evidence of physical injury is not necessary to convict in domestic-abuse cases. A person can be found guilty for assaulting a women, or threatening to assault her, if the intent is to make her afraid. Domestic abuse was “conduct likely to cause anger or fear” in another person in one’s own household.
For instance, there was a slight young man named Ortiz who had told his wife that she could not go to a party. They had had a heated argument about this. The incident was interpreted as an attempt to intimidate or constrain the woman by force. The wife had said that a physical assault took place during the argument. Mr. Ortiz denied this. He was willing, however, to plead guilty to disorderly conduct, a lesser charge which would be less likely to affect his immigration status.
The down side of guilty pleas was that the offenses were “enhanceable”. In other words, if a particular offense was repeated, the punishment would be more severe. Misdemeanors would become felonies if the same conduct happened three times. I had been charged with a misdemeanor and was determined not to plead guilty to any charge.
There was also a young man named Zubay. The victim had said that she was willing to drop the charges. She wanted to remove the “no contact” order. Zubay claimed that he had not physically assaulted this person. However, the police report said that he had tried to smother her. Judge Wernick glanced at the police report and decided that the “no contact” order should continue.
The judge heard at least twenty cases that day. Having parked in a two-hour zone on the street, I was worried that Joe’s car might be ticketed. Joe was less concerned. We listened to a case where a man had violated an order for protection. If I heard the judge correctly, he was saying that violations of court orders such as those for no contact with the alleged victims would be charged as felonies regardless of the original offense.
Despite his courteous demeanor, Judge Wernick struck me as a martinet who was unconcerned with people’s real-life needs. Chief among his callous proclivities, I imagined, was the judge’s fondness for making defendants suddenly homeless in the dead of winter. I leaned over to Joe Nelson and whispered that I had a bad feeling about this man; he struck me as a “hanging judge”.
Joe and I waited as all the other defendants appeared before the bench. Most had sat in the court-room benches patiently awaiting their turn. On the other hand, several sets of defendants, in groups of four to six, sat behind glass in a side room wearing prison garb. They communicated with the judge through attorneys.
I was the last defendant and the only one not to be represented by an attorney. It was around 12:30 p.m. - three hours after the proceeding had begun. I told the judge that I had applied for a Public Defender but had been denied. The judge strongly recommended that I hire a private attorney. He had a court clerk give me a sheet of paper which gave information about lawyer-referral agencies.
My main interest was in having the judge lift the no-contact order forbidding me to return to my home. I pointed out that I had lived in the same house for 19 years. I used this house as an office for a small rental-property business. I also explained that the city of Minneapolis had scheduled a rental-license inspection of this house on February 28th. I might well lose the house if I did not complete the inspection successfully. I said that there were two separate apartment units in this house. My wife could use one of the units and I the other. If the court feared for my wife’s safety, her unit could be locked.
The judge spent a minute looking through the police report. Then he announced that he would not lift the order. I was to have no contact with my wife and was not to visit my house at 1702 Glenwood Avenue until the case was settled. When I said that the arresting officer had not asked me any questions at the scene but had led me in handcuffs to the squad car, the judge seemed irritated. He immediately signed the order. If I had any problems with the scheduled inspection, my attorney might contact the prosecutor to see what could be done.
That was it. The judge was in a hurry to leave the court chambers after a long day. At this point, Joe told him that I needed access to my home to conduct my rental-property business. How was I to collect rents from tenants who lived in the restricted area? The judge did not answer that question. I then asked Judge Wernick if I had the right to represent myself pro se. Irritated, he said that I did: but I would be making a serious mistake if I did not engage the services of an attorney.
the complaint in the police report and my rebuttal
I had not been given a copy of the police report regarding my arrest until I stood at the dock next to the prosecutor. When the city prosecutor handed me the report, I was shocked to read the nature of the complaint.
The public statement was as follows: “Officers were dispatched to the above address on a call of a domestic assault. Upon arrival V1 stated that her husband of 11 years had punched her in the mouth, 3-4 times after an argument. I immediately observed blood coming from the victims mouth while talking with her. A1 was booked at HCJ. V1 was unable to write english so I asked the questions and completed the domestic supplement with the victims answers. Pictures were taken of the victims injuries. The camera and the domestic supplement were property inventoried. V1 declined medical.”
Much of the statement was repeated at the bottom of the page with the following additions: “SHE (THE VICTIM) WAS SOBBING AS I ASKED HER QUESTIONS. V1 ALSO STATED THT A1 HAD HELD HER WRISTS TOGETHER WITH ONE HAND WHILE HITTING HER TO THE POINT THAT SHE HAD TO BITE HIS HAND TO GET A1 TO RELEASE HER WRISTS.”
There was a supplement to the report which repeated some information in the above statements. Additional testimony was the following:
“ Upon arrival officer approached the door to apartment 3 and were met by V1 and I immediately observed blood coming from the victims mouth, swelling on her left check and she was sobbing and pointing back up the stairs at her husband, A1.”
" V1 was looking at the check book (that) had enraged A1 who then grabbed the victims wrists together with one hand and punched her in the mouth 3-4 times with the other clenched fist.
V1 stated that she had to bite her husbands hand that was holding her wrists together to get him to release them.”
My version of the facts is different:
It had taken the Minneapolis police about fifteen minutes to come to the house after my wife made the 911 call. I was gone for five to ten minutes while driving a tenant to a nearby building. My wife and I spent five minutes sitting quietly together at a table in the hall. I did not then see any blood on her mouth. It’s possible, however, that she was bleeding because I did not look closely at her face.
I can say with assurance that my wife was not sobbing when she talked with me before the officers arrived. She was sobbing while talking with the 911 operator and, according to the police report, she was sobbing while talking with the arresting officer, Stephen Herron. In other words, the sobbing was not continuous but occurred only in circumstances when it could become part of the police record.
The police report describes my appearance as “mad/angry”. I remember myself as being calm - resigned to my fate. I said nothing as the handcuffs were put upon me and I was led to the squad car. There was no basis whatsoever for reporting that I appeared to be angry.
Also, I do not recall my wife being at the bottom of the stairs and pointing up to me. The officers could not have failed to remember that, when they arrived at the house and started up the stairs, our dog Do Do barked ferociously at them. I walked half way down the steps, picked Do Do up in my arms, brought him up the stairs, opened the door to apartment #4, and dropped the dog to the floor before closing the door and being promptly arrested. My wife was upstairs the entire time.
The police report does not reveal that I was arrested before I had exchanged any words with the officers. It does not record that officer Rebecca Lane, the female, failed to interview me in the car about the incident. It does not record that I told both officer Lane and officer Herron that my wife had bitten me in the hand. I had asked them both to take a look at my injury while the bite marks were fresh. Both had neglected to do so.
Officer Herron did take a photograph of my arm at the county jail as evidence of the bite marks or lack of them. The public statement says only that “pictures were taken of the victims injuries.” I imagined that the jailhouse photo would be left out of the evidence presented in court.
The police report stated that my wife was injured in the “head/neck” although no injuries to the neck were reported. The report stated that the weapon used was “hand/feet/ bodily for”. “Bodily for” presumably means “bodily force” or general physical assault. I do know that no one was kicked in the check-grabbing incident. The allegation that feet were used to kick my wife is an example of how officer Herron embellished the facts.
The supplement refers to my grabbing the “house checkbook”. It was my personal checkbook, not one used jointly with my wife. My wife has never written checks from this account. She has her own bank accounts. We do have a joint credit card. The reference to a “house checkbook” is another example of how the officer embellished the facts to force certain conclusions.
Most importantly, the police report stated that I “grabbed the victims wrists together with one hand and punched her in the mouth 3-4 times with the other clenched fist. V1 stated that she had to bite her husbands hand that was holding her wrists together to get him to release them.”
I knew that this was physically impossible. First, I would have had to get my wife to place both wrists together, prayer- like, so that I could grip them with one of my hands. Then, I would have had to put my thumb and a finger around both wrists so that I could encircle them. My thumb and middle finger make a circle of less than two inches in diameter. My wife’s wrists placed together tightly would form a circle of perhaps ten inches in diameter. The most I could have managed would be a crescent-shaped restraint to her wrists. Finally, even if I managed to get a vise-like grip on her wrists, my wife easily had enough leverage to break that grip by pushing outward.
I could hardly believe that my wife or the Minneapolis police would make such a claim. I could state unconditionally that I never hit my wife in the face or elsewhere. I never made a clenched fist. The argument was about the checkbook. I had no interest in restraining or injuring my wife. After I regained possession of the check book, I went promptly into the other room.
a significant punishment for someone not yet proven guilty
The judge’s order, based upon evidence included in the police report, stated:
“You are ordered to have no contact directly, indirectly or through others, in person, by telephone, in writing, electronically or by any other means with the protected person(s) named above.”
“ You may not go to the following location(s): 1702 Glenwood Ave North Mpls, MN 55405 except with a police escort to recover prescription medications, personal clothing and toiletries.”
“ A violation of this order is a crime and may cause you to be arrested and subject to further criminal charges.”
The judge’s order remained in effect until March 18, 2011 - a full month from the time when the original incident took place - and possibly until the trial takes place weeks or months after that. I suspected that the “no contact” order harmed my wife as well as me although, due to my court-ordered lack of communication with her, I could not be sure of her situation.
Such an arrangement, I thought, served only the interest of judges and police who did not wish to be embarrassed by victims who changed their mind.
I wrote a note to myself which read:
“ In effect, I am being punished without the opportunity of defending myself against spurious charges. The judge took one look at the police report and decided my continued presence in our home posed a danger to my wife. He became irritated when I pointed out that the report was prepared without my having been asked a single question. He seemed less interested in making decisions based on cross-examined facts than protecting his dignity as a government official.
I am being punished by being banished from my home for more than a month. Had it not been for Joe, I would have been made homeless in the middle of winter. I am also being punished by loss of a car. I am being punished by severe restrictions on the ability to run my business, the loss of my land-line telephone, the inability personally to collect rents, and the need for timely compliance with inspections orders on my home that will likely be issued on February 28th.
It is pure fiction to suggest that these are not punishments but simply judicial orders required to deal with a misdemeanor offense. These are, in fact, substantial punishments issued by a court which never gave this defendant a chance to defend himself against unfounded charges brought against him.
The feminist police state may have started out as a group of hateful, angry women who enlisted the power of the state to shift the balance of power to the woman in family disputes. It continued as a war on families in which men and women live cooperatively together. It has now become a system of state intrusion into people’s personal lives which serves the interest of neither women nor men.
is Internal Affairs interested?
Joe Nelson suggested that I file a complaint against the officer who had arrested me without asking any questions. Perhaps city officials would be interested in knowing how certain police officers behave on domestic-abuse calls.
Following up on that suggestion, I visited the police chief’s office asking if I could see the photographs taken on February 18th. I was told to visit records. In records, I learned that different policies on releasing photographs exist for different types of cases.
Domestic-abuse cases were handled by the City Attorney’s office. At the City Attorney’s office, I spoke by telephone with a woman in charge of such cases. She said that the photographs would be made available to my attorney at the time of the March 18th hearing.
I decided to come clean: I was not interested in the photographs from the standpoint of the trial but for the purpose of filing a complaint against a police officer. In that case, I was told I needed to visit the Internal Affairs unit of the Minneapolis Police Department. It was in room 126.
An employee of that unit came out to the waiting room. I told him that I wished to file a complaint against the officer who had arrested me. He had asked me no questions but simply had me taken to the squad car. I said I realized that this was my word against his. However, I could show that this officer might be withholding important information from the record.
Proof existed in the form of the photograph taken of me at the Hennepin County jail. If the officer included this photograph in the evidence presented to the court, then I would not file a complaint. If it was omitted, then it showed that the officer was selectively choosing evidence to favor one of the parties. I did not have access to the photographs but Internal Affairs did.
The officer said he could not help me. He said I would have my day in court where I would have to be found guilty beyond a reasonable doubt to be convicted. The police reports were just one step in that process. I said I was coming to Internal Affairs not to influence that process but to identify possibly dishonest conduct by a particular officer in making arrests. I thought that information might interest the police hierarchy.
The officer would not budge. He stuck with the theme that I would have my day in court. We spent about ten minutes going round and round with the same arguments. Finally the officer said something revealing. “I suggest that you read the statutes on domestic abuse,” he said. “We don’t even have to prove that the defendant laid a hand on the victim.” I, who had a physical altercation with my wife, was skating on thin ice.
In other words, it seemed to me, anyone can accuse anyone else of domestic abuse by alleging behavior which made him or her “frightened”. As a practical matter, it would have to be a woman accusing a man because the police would not believe that the physically larger and more powerful male would be frightened by threats of a female unless a weapon had been used.
When I received my mail a week later, I found nine letters or postcards from defense attorneys offering to represent me. In order to defend myself against a charge which carries a maximum penalty of $500 upon conviction, I was being asked to spend thousands of dollars for attorney fees. That, too, is how the system works.
another police-escorted visit and a rental-license inspection
Time went on. From the downstairs tenant at 1702 Glenwood Avenue, my former wife, I learned that my current wife remained in the house. She was sometimes seen walking Do Do outside. That was a good sign. A bad sign was that my wife was seen bringing groups of people into the house. Strange noises were coming from my office. My wife was seen removing suitcases or boxes from the house. She seemed to preparing to move out of town.
My particular fear was that my wife would take one of my most valuable possessions - a cartoon celluloid personally autographed to me by Walt Disney. I had no insurance on this artwork or indeed any evidence that it existed. My wife could simply remove this object from the house and I would be powerless to respond.
On the morning of Monday, February 28th, I resolved to retrieve the cartoon using my opportunity to visit the house with a police escort. I carried a black plastic garbage bag to conceal the item as it was carried past outside. My wife, ever the diplomat, was meanwhile asking the officers if they wanted a cup of Chinese tea.
My first move was to take more clothing, mainly socks and underwear. My wife objected to my putting those items in the large bag. Then I went to where the cartoon was kept in a box. Unfortunately the box fell as I was attempting to remove it. My wife immediately came into the room and asked what I was doing. When I explained, she said she would never think of touching those things. She did agree to let me put the box of art objects in the garbage bag.
Now there was the matter of getting past the police. My wife claimed that she wanted to keep the art objects in the house because I might give them to other people. I argued that I should be allowed to remove this particular cartoon because it had my name on it. She argued that the items would be safe if she sealed the bag with tape. Based on my wife’s statement, the officer believed that we would eventually reconcile. In that case, such possessions should remain in the house.
As in a previous visit, I gave my wife $100 in cash for her living expenses. After accepting the money, she gave me two parking tickets for $42 apiece that she had received for parking on the wrong side of the street during a snow emergency. Normally, I handle that kind of problem. That afternoon, I met with a man in the traffic-ticket appeals department in the Government Center who let me settle both tickets for $20.
Another event that day was the city’s rental-license inspection of my house at 1702 Glenwood Avenue. The inspector arrived at 10:00 a.m. I explained that I could not come in or near the house because of a court order. Fortunately, Joe Nelson, who had been acting as a property manager, was on hand to accompany the inspector on his rounds. Seated in a car parked down the street, I grew increasingly alarmed as the inspector spent fifty minutes in the first unit. Joe told me later that the inspection this time had also included the basement.
After the inspection, the inspector explained that he used a point system to evaluate the condition of houses. Missing smoke detectors received so many points, holes in the wall received another number of points, etc. If the point total exceeded a certain number, the inspector would issue an order of condemnation, which would require that the house be vacated. The condemnation would not be carried out, however, if the repairs were made by a stated date. Joe assured me privately that the requested repairs were relatively minor.
Four days later, a green Day-Glo sheet was posted on the front door of my house which read: “NOTICE In accordance with Chapter 244, Section 244.1450 and 244.1470 and/or Chapter 249 of the Housing Maintenance Code of the City of Minneapolis, the premises, building and structure hereon located at 1702 Glenwood Ave. N. are hereby declared unfit for human habitation and dangerous to life and health because of: LACK OF MAINTENANCE. You as owner are hereby ordered to abate the conditions above cited by 10-APR-2011. Failure to bring the building into compliance will result in the building being condemned.”
Prospectively, Judge Weinert’s domestic-abuse order forbidding me to visit my home would run past the April 10th deadline. I, of course, would be prevented from personally making the repairs which the city was ordering as a result of the rental-license inspection. If I did not have my friend Joe Nelson help me with maintenance on my properties, I might well lose my home. I had described the situation to the judge but this had failed to convince him to let me visit the house to help with the repairs.
Note: Normally “lack of maintenance” means that a building lacks plumbing or electrical facilities or the furnace is not working. My house had no problems with any of these functions. In this case, it had failed an inspector’s test based on an accumulation of points associated with code violations. For instance, it did not have 20-minute rated fire doors between each unit and common areas or carbon-monoxide detectors within ten feet of each bedroom. For these reasons, the placard states that the building is “declared unfit for human habitation and dangerous to life and health.”
to hire a lawyer or not to hire?
Judge Weinert had made it clear that he expected me to hire a private attorney to represent me in the domestic-abuse proceedings. Stunned by the arrest and by the judge’s release conditions, I had been dragging my feet. I was declared ineligible to be represented by a Public Defender since I received both a Social Security retirement benefit and a state pension. The Legal Rights Center, one of the two referral agencies mentioned in the court handout given to me by the judge, “represents, without charge, low-income and people of color who have legal problems with the juvenile justice, criminal justice, and child welfare systems.” I would not qualify for this service either.
The other lawyer-referral agency was the Hennepin County Bar Association. For $30.00, this association schedules a half-hour interview with a private attorney to discuss particular issues of each case. Referrals are made for the same or next day. Because I might need legal representation both for divorce and the domestic-abuse charge, I was referred first to an attorney in Brooklyn Park, James Gurovitsch, who specialized in divorce, for a March 1st meeting. He gave me valuable information about that process. But I still needed to consider whether to seek counsel in domestic-abuse defense. On March 7th, I visited another attorney, Gregory Bachmeier, who represents such clients.
It was a sobering interview. I had naively assumed that, because of the weak case against me, the prosecutor might decide to drop the charges against me at the March 18th hearing. The attorney told me that this was unlikely. The prosecutor might let me plead guilty to a lesser charge in exchange for dropping the domestic-abuse charge but he or she would not drop the charge unconditionally. Unless my wife recanted her testimony, there would be pressure from (female) victims advocates and others to prosecute me to the hilt. I was determined to go to trial rather than plead guilty to anything even though such pleading would not qualify for “enhancements” if my wife accused me of domestic abuse again.
What if my wife did not show up at the trial? Would the prosecutor drop the charges? Would I automatically win the case? No, since domestic abuse is considered an offense against the state, the prosecution would likely proceed. My wife’s failure to appear in court might weaken the prosecution’s case somewhat but not derail it. Normally, the prosecutor subpoenas the complainant as a witness. Failing that, I could subpoena her.
Likewise, the attorney considered it highly unlikely that the judge or prosecutor would rescind the “no contact” order or the order not to visit my home at 1702 Glenwood Avenue after the March 18th hearing. They seldom do that any more. Why not? It’s because, to use the vernacular, there’s “nothing in it” for court officials. There’s always a chance that, if they show leniency to a defendant, something bad will happen and they will be blamed.
What if such orders result cause a defendant to lose his home or ruin his business? The attorney’s cold but honest reply was that they simply don’t care. The judge and prosecutor are concerned about protecting their own rear ends, and what happens to the defendant is his business.
I was being charged with a misdemeanor. This attorney charged a flat fee of $1,800 for handling misdemeanor cases through trial. After the March 18th hearing, the trial would probably take place six weeks to two months later. That meant that I could be barred from visiting my own home for up to three months, even if my wife disagreed - and, of course, I could be charged with a crime for even soliciting her opinion.
waiting for March 18th
I was luckier than most. I was living temporarily in a friend’s suburban home and had access to his car. I was able to remove my computer and printer from the house, write letters, and regularly check email. I had plenty of food and clothes. For recreation, I could take walks on a bridge crossing the Mississippi river and watch small pieces of ice flow by. There was a commercial strip across this bridge where photocopying and banking services were available. I bought myself a new cell phone. All things considered, it was not a hard life.
Joe’s teenage son and 7-year-old granddaughter were living in his house. When she was not living with her mother, his 9-year-old daughter also stayed there. So did Joe’s 17-year-old niece. The two young girls wanted to be playmates. I let them put plastic curlers in my hair while I sat at the computer, producing girlish giggles. Everyone was eager to have me see the latest DVDs. I also sat in on visits from Mormon missionaries. Even if my personal papers were in disarray, my new life was personally engaging. I was lacking only the ability to communicate, directly or indirectly, with my wife. On the other hand, I wrote a letter to Judge Weinert presenting the facts of the case.
One day in early March, a process server arrived at Joe’s house and handed me a petition for divorce. The petition was asking for spousal maintenance including medical bills, payment of my wife’s and my own attorney, and even an “equitable” share of my pre-marital property. Because of her illness, my wife was said to be unable to work. She was interested in moving from Minneapolis to a more upscale locale. If I did not respond to this petition within thirty days, the court would automatically agree to its terms.
A day or two later, my wife’s attorney called. She said that my wife was seriously ill and wanted to get the divorce over quickly. I told her that the terms of the petition seemed draconian. It was merely a formality, I was assured. My wife was interested in a quick, uncontentious settlement. She wanted to remain friends with me after the divorce.
How much would it take to settle? The attorney said that she could not say because of uncertainties relating to my wife’s medical expenses. Before I was arrested, my wife and I had applied for my wife to participate in the “Assured Access” program on the basis of her assets alone. We did not know if she had been accepted for the program. The attorney said that the county aid workers would not give her any information about this, but I might inquire.
I came to realize that I was getting over my head in legal problems. Even if I relished the idea of pleading “not guilty” and representing myself in a trial, that might not be the best way to go. My wife’s divorce petition had stated, among other things, that while the law encouraged the two parties to seek mediation, conviction for domestic abuse removed that requirement. I now had two major problems. Perhaps it would be best to spend some money to seek adequate representation.
Among the stack of letters from local law firms, I found one which promised to represent me for $800 through the pretrial hearings and the trial itself. I had a brief discussion with the partner of that firm but could not make arrangements to meet. I also checked the internet for well-regarded attorneys practicing in this area. One man specialized in real-estate questions and charged $250 an hour. Another attorney, who was well regarded, had an office near my temporary home.
I called both. I made an appointment to meet with the first attorney on the following day despite concerns about cost. The other attorney said that he would himself be unavailable on March 18th but he would call an associate who might be willing to take my case. That associate, John Olson (not his real name), soon called me back. He said that he charged $800 to $1,000 for taking domestic-abuse cases through the pretrial hearings, and then $500 per day for representation at the trial itself. His direct manner impressed me. I later learned that he had temporarily been suspended from the practice of law in the 1990s but I was in no mood then to let that bother me.
On the following morning, Friday, March 11th, I tried repeatedly to contact the $800 attorney but could only leave messages on his answering machine. I decided to cancel my early-morning appointment with the more expensive attorney. He appreciated the fact that I had called to inform him of the cancellation. The other attorney, Olson, was representing a man in Pine City Saturday morning. He asked me to call him around noon that day. When I did, we made arrangements to meet at a Perkins restaurant near I-94 at 3 p.m. on Saturday.
I meet with my domestic-abuse attorney
I arrived at the restaurant on time and ordered a cup of coffee. When the attorney arrived, he ordered a soft drink. John Olson immediately set to work, asking me routine questions and looking through the police report and related documents. He wanted me to explain exactly what had happened during the altercation with my wife. I drew a sketch of where we were positioned. The photographs showing blood on my wife’s mouth would be the most damaging piece of evidence against me. I said that, if there was blood, it might have been caused by lifting upwards to free my hand from my wife’s mouth after she had bitten me.
After the facts of the case were discussed, Olson went into a brief discussion of how Minnesota courts treat cases of domestic abuse. Once, he said, men were free to beat their wives; but now the pendulum has swung to the other extreme. The courts are totally biased against men who are accused not only of beating women physically but making them feel uncomfortable during an argument. Lesbian feminists run the machinery of government in Minneapolis, Olson said. The system has no sympathy whatsoever for a person like me.
Now on a roll, John Olson scribbled short notes on a paper as he continued his explanation. “Nothing matters”, he wrote, coming back repeatedly to this theme. The court system is so screwed up in Minneapolis that nothing matters apart from the way that the game is played. It does not matter what the facts of the case might be. It does not matter what the law says. Judges do whatever they please. You need experienced people representing you who know these judges and know how the game is played. Otherwise, innocence of the charge will not matter. Someone who tries to represent himself will be regarded as a sucker. I recognized that this was part of Olson’s sales pitch to persuade me hire him, but I also believed that his argument contained more than a little truth.
John Olson pointed out several possible outcomes. First, the city prosecutor might decide to drop the charges against me. This was the most desirable outcome, but also highly unlikely. A second possibility would be that the prosecutor would decide to allow me to plead guilty to the misdemeanor charge of assault but stay the sentence for a year. This was called “continuance”. If no similar incidents took place within a year, the charges would be dismissed. I would then have no conviction on my record.
A third possibility was that I could plead guilty to a lesser charge such disorderly conduct. This referred to conduct such as yelling at another person. It would not count as a precedent for escalating penalties if domestic-abuse actions were repeated.
Finally, I could decide to take the case to trial. Then, anything could happen. I might be found innocent or I might be found guilty. Keep in mind, however, that the definition of domestic abuse is quite broad.
I said that I was thinking of asking for a trial. However, the option of pleading guilty to the charge with the understanding that the conviction would be erased after a year did not sound too bad.
Olson and I briefly discussed my divorce case. (He had practiced law in this area ten years earlier but said he had switched fields of practice because divorce is an area that leaves few satisfied customers. He was tired of witnessing and even causing human misery.) My first task was to respond to my wife’s divorce petition. Olson said that I could do a general response: Just say, “I accept paragraphs a,b,c; and I deny paragraphs d,e,f. Wherefore, I request that the court order this, this, and this.” Write something up and he’d take a look at it when we got together on March 18th. Serve a copy on my wife’s attorney and file the original with Family Court.
John Olson also said he would call my wife’s attorney stressing the fact that we had $250,000 in joint debt obligations. Just because divorce court awarded a particular piece of real estate to a particular party did not mean that the bank would let the other party off the hook with respect to the mortgage obligation. I was in a strong bargaining position, and it would be well to let my wife and her attorney know that I knew.
I wrote Olson a check for $1,000 before he left. I also picked up the tab for the drinks.
I receive evidentiary materials from the prosecutor and hear from my wife’s attorney
It was the final week of my exile from home before the March 18th hearing. On Monday, March 14th, I received an email from Kristin Wilson, a paralegal in the Minneapolis city attorney’s office, which attached files with evidentiary materials. Because I had written a letter to the city attorney’s office indicating that I would represent myself, this information was now being sent to me. I forwarded the email to John Olson.
For the first time, I saw the “Victims Domestic Violence Summary” containing further information about the arrest. This report stated that I had “struck” and “punched” my wife. A multitude of X marks were written upon a diagram of a mouth. The report stated that my wife was “very afraid” of me. It stated that she had bitten me in self-defense. Yes, the report said, the victim thought I would “seriously injure or kill” her or her children. Officer Herron had written: “She believes that it will happen again and he will hurt her worse.” Keep in mind that this was the first physical altercation with my wife that I had had in eleven years of marriage.
I also took a look at the photos which were small and positioned sideways. I was shocked by how forlorn my wife looked. On the other hand, I did not see any blood on her mouth. There might have been a small red spot near her upper lip in one of the three photos included in the exhibit but nothing looking like blood in the other two. The exhibit also included a picture of the back of my right hand which, as expected, did not show a clear bite mark. There was also a photo of the jailhouse ceiling. There was an audio file of the 9/11 phone call but I lacked the software to open it. I forwarded the files to John Olson, my attorney. He agreed that the evidence of blood on my wife's mouth in the photos was questionable.
Later in the week I received another call from my wife’s divorce attorney. She informed me that she was filing the petition with the court to get this case quickly on the court calendar. My wife was very ill, and we needed to settle the case was soon as possible. The attorney mentioned that my wife had been throwing up nearly every day. This statement shocked me. I had never seen anything like chronic vomiting. It was an ominous sign for a woman with known health problems.
Rather impulsively, I called this attorney back. I said I would make my wife an immediate cash offer of $25,000 to settle the divorce. (A week earlier, my wife had agreed to settle for $30,000 and I had subsequently incurred expenses related to my domestic-abuse arrest.) Furthermore, I would go to China to be with my wife if she had an operation in a Beijing hospital.
The attorney responded that $25,000 was too little. She would not say at that point what settlement offer might be adequate. She also said that my wife wished to make a clean break with the past; my promising to go to China would not suit her client’s needs. On the other hand, the attorney said that my wife would attend the pre-trial hearing for the purpose of requesting that the no-contact order be lifted and I be allowed to return home.
the court hearing on March 18th
I was at the court room in the Public Safety Facility by 8:30 a.m. as requested. The proceedings did not start until 9:00 a.m. My wife and an interpreter were sitting on the other side of the room. I did not attempt to speak with them. When my attorney arrived ten minutes later, he spoke with several court employees including the prosecutor. The judge was Mary V. Vasaly. I sat in a bench to the right.
The prosecutor, a black female, asked Olson to confer with her outside the court room. At length, he returned with her offer. I had three options: 1. I could plead guilty with continuance of the sentence for one year. The charges would then be dismissed if I had stayed out of trouble. 2. I could plead guilty to disorderly conduct. This was a lesser charge that would not lead to enhanced charges, but the conviction would stay on my record. 3. I could ask for a trial and take my chances with a jury. However, he reminded me that the definition of domestic abuse in Minnesota is quite loose.
Olson said that the prosecutor was quite angry with me because of disclosures in the police report. She was angry that I had written a letter to the judge. She had acted like a wild woman, waving her arms around during the negotiations. I had to decide how to plead. If I pled guilty to the domestic-abuse charge, I would have to pay $200 for prosecution costs. I would also be required to attend two or three anger-management counseling sessions. Sentencing would be next week. The prosecutor was now agreeing that I could plead guilty to causing “fear” of physical harm rather than a physical injury.
My guilty plea would say that my wife and I had engaged in a physical altercation over a checkbook and that, as a result, she had been frightened. That was a truthful statement. The scenario also seemed to fit the definition of domestic abuse. On the other hand, the Domestic Abuse statute defines "fear" as "the infliction of fear of imminent physical harm, bodily injury, or assault". I doubt if my wife feared a future physical assault. Rather, she feared that, in calling the police to carry out their ruthless task, she had destroyed the possibility of a good relationship with me. Divorce was the likely outcome. In the future, she would be alone.
I had originally intended to let my case go to trial but my wife’s illness troubled me. Even if they did not show blood, the photographs of my wife indicated deep unhappiness. If she was vomiting every day, her cancer might have reappeared and spread. I was less interested than before in asking for a trial because of “principles”. To plead guilty with continuance would settle the case and perhaps have no lasting consequences. I wanted to be free to go to China to visit my wife in the hospital. Therefore, I told Olson I would accept the first option.
John Olson and I stood in the docket before Judge Vasaly. The prosecutor was standing on the other side of Olson. I had thought that pleading guilty would be a matter of making a single declaration of guilt. Now, however, the judge started asking me a series of questions. My recollection is that, when I realized I was being asked to admit to untrue statements, I hesitated and the prosecutor pressured me to commit on the spot. “Yes or no?”, she demanded to know, glaring at me. In a moment of weakness, perhaps, I decided to go with the program.
The transcript of my appearance before Judge Vasaly, on March 18, 2011, reveals that the court clerk asked: “Mr. McGaughey, how do you plead to the misdemeanor charge of domestic assault, harm, that happened on or occurred on or about February 18, 2011 ...?” My attorney, John Olson, interjected: “We’re doing it under subdivision 1, fear.” This change was accepted by the court and the prosecution.
The court clerk then asked me: “To the amended charge of domestic assault, fear, do you plead guilty or not guilty?” “Guilty”, I answered.
I was then asked to raise my right hand to swear that I would give true testimony in the questioning of facts. Did I understand the charge and the plea bargain? Had I had sufficient time to make my decision? Had I adequately been represented by counsel? “Yes”, I replied in all cases. Had I been promised something to plead guilty or been threatened? No. Neither was I under the influence or alcohol or drugs or undergoing psychiatric treatment.
Having answered appropriately to all questions, I was now asked to admit to having signed a “Petition to Enter a Plea of Guilty in a Misdemeanor Case.” Yes, I had signed this document after giving it careful consideration. I knew I waived my right to a jury trial and the right to remain silent at trial.
My attorney then presented a second document titled “Domestic Violence Supplemental Petition to Enter a Plea of Guilty”. Yes, I had signed this document, too. This was the agreement that the present case would be dismissed if no similar incidents of domestic abuse occurred within a year of sentencing. However, if another incident did occur, future convictions on charges of domestic abuse were “enhanceable” for a period of ten years. That meant that the penalties would be increased for the same type of offense if it were repeated at some time during the next ten years.
I had a question: “If there is a trial on what might happen within a year and I’m found innocent, then it’s not enhanceable, is it?” The judge did not understand my question. In fact, she was confused. After attorney Olson explained that a trial which found me innocent would not trigger the ten-year period of enhanced penalties, the judge agreed. I therefore accepted the deal.
Now began the questioning of facts in this case.
Yes, my wife and I got into a heated argument over a checkbook. “And in the process of grabbing for the checkbook she (my wife) became afraid, and she was afraid of physical harm, is that correct?” I answered: “That’s right.”
“ And basically you grabbed her hand to get the checkbook, right?”, the court clerk asked. “I touched her hand, yes. I grabbed the check book.”
The clerk then asked: “And that’s what caused her to be afraid, correct?” I answered “yes”.
The clerk then asked the prosecutor if she was satisfied with the questioning and my answers, but she was not. The prosecutor, Deborah Styles, then asked: “Sir, it was the manner in which you grabbed your wife’s hands that caused her to fear imminent bodily harm, isn’t that correct?” I answered: “I suppose.”
Here the transcript differs from my recollection of being pressured to answer “yes“ or “no” by Ms. Styles. The transcript reads:
" Mr. Olson: You have to say yes or no. (not “I suppose”)
Ms. Styles: It’s a yes or no question.
Me (the defendant): Yes.”
That was enough to satisfy Ms. Styles and the questioning ended.
The judge then said: “Given that waiver and the factual basis being established, I find that the Defendant has voluntarily, knowingly, and intelligently waived his rights. I’m not going to accept the plea right now. We’ll accept it at sentencing based on the pre-sentence investigation, and so we’ll go ahead and set the date for you to come back for sentencing, and in the meanwhile you’re to cooperate with probation in preparation of the PSI. Do you have any questions ...?”
I remember that I was taken aback at being arraigned before the judge and being asked a series of questions. I had thought my attorney would enter a perfunctory plea of “guilty-continuance”, meaning that I had waived my right to jury trial and I would not have to answer any questions. The plea would bypass that. Now it seemed I had been required to say that I was indeed guilty and admit to facts proving it. I had not properly been forewarned.
Another concern was probation. When we first discussed my options, attorney Olson had told me that a plea of “guilty-continuance” would not involve probation. Now I was being told otherwise. I was also told that a condition of probation was that I attend Anger Management classes. Olson thought there would be three classes. It now appeared that the Anger Management program might last longer than three weeks.
My main concern at the time was that I be free to accompany my wife to China where she expected to have an operation for cancer. Her divorce attorney had reported that my wife vomited nearly every day. I thought this indicated a serious health problem. Perhaps my wife would die soon. In that context, the prospect of being convicted on a domestic-assault charge paled in significance. I wanted assurance from the court that my probation requirements would not preclude a trip to China. The court gave tentative approval of my request.
The final event of the day involved my wife, who sat in the courtroom with a Chinese man who happened to be the husband of her divorce attorney. At the end of the proceedings, Judge Vasaly reminded me that the no-contact order issued by Judge Wernick remained in effect until sentencing took place in a week. John Olson promptly pointed out that my wife and her interpreter were sitting in the back of the court room intending to ask that the order be lifted. When the judge hesitated, Olson further said that my wife was quite ill and we needed direct contact to make arrangements related to her treatment.
That explanation had the desired effect. Prosecutor Styles was reluctant to lift the DANCO (domestic abuse no contact order) as she called it; but after approaching the bench for a private conversation, she and the judge agreed to do that. The judge issued an order to rescind Judge Wernick’s no-contact order. I was now free to return to my home.
Even so, my goose was cooked. I had now pled guilty. I had declared that I had waived my right to a jury trial, understood the consequences of my plea, and been adequately represented by my attorney. The formal sentencing would come next week.
After they pleading was concluded, my wife’s interpreter walked over to me. My wife had changed the lock to the front door. He handed me the new key. I then walked over to my wife. We gave each other a hug. John Olson said: “That’s a good sign.” John Olson then led me back to the probation office in another part of the building. I needed to fill out intake forms. Then he left.
I sat on a bench filling out a lengthy questionnaire which included statements about the incident that had led to my arrest. I was on the last two or three questions when a tall woman who was a supervisor in the probation intake unit asked me to come with her to her office down the hall. She seemed especially interested in my reaction to the events that had taken place. Was I angry at anyone?
I said I was upset by the fact that the arresting officer had not asked me any questions before taking me to the squad car and that the police report contained numerous false statements. The woman said that the officer had no reason to falsify the report. He was merely doing his duty as he saw it. This woman seemed annoyed that I was criticizing the officer. It seemed that she wanted to know whether I was angry with my wife (or perhaps with women in general).
The probation supervisor filled out the remaining questions in the sheet, saying that I felt the officers had lied. I asked about the process. She said that she was gathering information so she could make recommendations to the court about my probation.
This, too, was a new one. I had been unaware that if I pled guilty-continuance, I would be on probation for a year. What did that mean? It meant that I would regularly be reporting to a probation officer. It meant that I could possess no fire arms for three years. It also meant that I would be required to attend anger-management classes for a period of eighteen to twenty-four weeks.
Still concerned about being free to travel to China, I said that I had been told that there would only be three anger-management sessions. The woman said I had been misinformed. Evidently, the prosecutor had not promised the shorter period of mandatory counseling but my attorney had merely assumed it. The general rule was that pleading guilty-continuance does not involve probation.
Murphy’s Law was defining my situation. I had pled guilty to the domestic-abuse charge so I could get the case over quickly and be free to spend time with my wife in China at the time of her operation. But now I was obligated to attend anger-management classes for a minimum of eighteen weeks with occasional excuses for attendance when I had to go out of town. I had not bargained for being tied up in Minneapolis for half a year. Among other things, I was program chair for an academic conference to be held in New Orleans in early June.
When I stepped outside the front door of the Public Safety Facility, I had a bizarre conversation with a man dressed in a Vikings jacket who seemed to be doing research on real estate near the Metrodome, the possible site of a new Vikings stadium. He asked me who owned various buildings in downtown Minneapolis, what kind of glass was used in the windows, and other similar questions. He gave me a business card for his consulting company. We walked together for several blocks before the man went into a building to warm himself. I was nursing a headache by this time.
Once back at my car parked across the railroad tracks, I drove to my home at 1702 Glenwood Avenue. The key given to me by my wife’s translator did not work. The downstairs tenant let me go through her apartment to the back stairs which had access to my own apartment. However, that door was also locked. My wife was away. I heard the dog squealing but was unable to open the door.
Later that day, I returned to the house. My wife opened the door. The subject most on my mind was what she had told the arresting officer. Was it true that I had punched her in the face three or four times? My wife said she had been contacted by the prosecutor’s office and asked to confirm or deny statements in the police report. She had told the city representative that she had not been punched in the face. Rather, my wife said, I had grabbed both of her wrists and shaken her side to side. My wrist or hers might have struck her in the mouth during that process. In any event, she was frightened by the sudden move.
My wife said there was another element which seemed important to the case. She looked the word up in a Chinese-English dictionary. It was “intentional”. My wife had told the prosecutor that her injury was not intentional. I had not intended to hurt her. It was an accident that happened as I was trying to grab the checkbook.
Although my recollection of the event was somewhat different, my wife’s account made more sense than the officer’s description of me holding both of her wrists with one hand and punching her repeatedly in the face with the other. I had concluded that whatever injuries may have occurred were the result of lifting my hands up to free myself from her mouth as my wife was biting my hand. It could be that I had selective memory when I did not recall the shaking. I still think that whatever contact my hand might have had with her mouth occurred as she bent down to bite me. I had no reason to come near her mouth while trying to grab the checkbook.
the case against me
A court report that I saw the following week said that I had pled guilty to “the Misdemeanor crime of Domestic Assault - Fear.” Minnesota statute mentions three situations which qualify as Domestic Abuse. The first is “physical harm, bodily injury, or assault’. The second is “the infliction of fear of imminent physical harm, bodily injury, or assault.” The third is “terroristic threats, criminal sexual conduct, or interference with an emergency call.” Even though I had laid hands on my wife’s wrists, I was being charged only with producing fear of future physical harm. That seemed fair enough.
When I was released from jail, I received a receipt from the Sheriff which characterized my offense as follows: “Domestic Assault - Misdemeanor - Intentionally inflicts/ attempts to inflict bodily harm on another.” The “current offense” is described in a report by the Department of Community Corrections and Rehabilitation after a follow-up interview with my wife as “Domestic Assault - Misdemeanor - Commits Act with Intent to Caus” (Here the remaining letters or words are cut.) I must assume that I was convicted of intentionally causing an injury, even if it was only to produce fear in my wife. How did that square with my wife’s statement to me that she had assured the prosecutor that the injury had been unintentional?
The “confidential” section of the follow-up report (which was leaked to me) makes the following statements: “The victim reported on 02/23/2011 and again on 03/15/2011. She stated that the police report was accurate with the following corrections: She was sitting during the altercation and the defendant was standing. The defendant tried to grab checkbook from her and grabbed her wrists with both hands. In the process, the defendant punched her. The victim reported she was bleeding from the mouth, with a split lip and a swollen cheek as a result of the offense. She further reported that she does not think the defendant is a bad person or that he deliberately wanted to hurt her. She stated that she loves the defendant and wants him to come home asap. During clarification regarding her allegation the defendant punched her, she admitted that he may have intentionally tried to hurt her but that she does not know because ‘it happened so fast’. During her report on 3/17/2011,the victim reported she is in the process of planning a divorce.”
I can understand why this section of the report was meant to be confidential. Plain and simple, it did not want outsiders to know how my wife’s testimony was at variance with conclusions reached by the prosecutor’s office. Did I punch my wife or did I not? My wife told me that I had not punched her but that an injury had occurred as I swung my hands side to side while I was attempting to take the checkbook from her. No doubt, my wife told the prosecutor that but some “clarification” was needed to support the opposite conclusion: “The defendant punched her.” Instead of three or four times in the face as the police report said, this report now described the assault as a “single blow”. It also said "V (victim) states she loves her husband very much and wants contact."
The prosecutor’s report states, in one place, “She (my wife) does not think the defendant is a bad person or that he deliberately wanted to hurt her.” (That means that whatever injury might have occurred was not intentionally inflicted.) Later, the report states that “during (the) clarification ... she (my wife) admitted that he (the defendant) may have intentionally tried to hurt her but that she does not know because ‘it happened so fast.” You can almost hear the prosecutor explaining to my wife over the phone that she had to change her story. She had to say that I “intentionally tried to hurt her” because that is what the charges brought against me said.
The “no contact” order imposed upon me for a month now also made sense. It is not that my wife feared that I would assault her if I went go home again after being released from jail. It was that the prosecutor and judge feared that my wife and I would then be able to talk with each other. We could compare notes about the incident. There was then a risk that my wife might tell me, as she later did, that the police report was substantially inaccurate. Maybe my wife would want to recant her testimony. Maybe her recanted testimony would make fools of the police and the court. A recanting victim might then herself be prosecuted. Therefore, victim and defendant could not permitted to have any personal contact while the case against me was being considered. The dishonest show begun by the police had to go on.
I realized that my wife was every much a victim of the system as I was. Yes, I shouldn’t have tried physically to grab the checkbook. Yes, my wife shouldn’t have made the 911 call. But that’s water over the dam. Neither my wife nor I realized how dangerous it is for anyone to be brought into the criminal-justice system on domestic-abuse charges. This is no longer considered to be a dispute between a husband and wife but an offense against the state. The wife cannot drop the charges against her husband even if she wishes to do so. The show had to go on. The machinery of “justice” had to continue prosecuting people. There were people in the criminal-justice field needing to be fed. Follow the money.
my anger-management problem
Later in the afternoon, I phoned John Olson, my attorney, to complain about being required to spend eighteen to twenty-four months attending anger-management classes. Olson agreed that this period of required counseling was too long. He said that he would see if I could plead guilty to disorderly conduct or even ask for a trial before I appeared in court for sentencing in a week, on March 25th.
The issue of my problem with anger had been addressed in the departmental report in the following way: The “yes” box for anger had been checked; I had an anger problem. That is based on the following comment: “The defendant denies a problem controlling his anger. He stated 'Even when I was punched by victim, I did not retaliate or become angry’. He stated when he and the victim are trying to resolve conflict, they will ‘try and talk it out.’ Please see evaluative summary for recommendation.”
That recommendation was: “While the defendant denied a problem controlling his anger, it is recommended he complete domestic violence programming to help address the situation that occurred on the offense date and learn better solutions to resolving conflict in the future.” Again, follow the money: Those anger-management classes are not free. ($350 was the first estimate I received.) Alternatively, you do not accuse the police of lying and expect to be let off scot free.
Yes, there had been a recent incident of violence during the night between February 17th and 18th, less than twenty-four hours before my arrest. My wife, who had been sleeping in another bedroom, woke me up around 4:00 a.m. to ask about checks that I had written from my checkbook. I refused to give her the information she wanted. She then began to pound on my arm with her fists. I did nothing. There was no injury, of course. It was just an expression of anger.
The same thing happened a month earlier when my wife and I were driving home after a visit to a government office. My wife was angry that she had gone to China for medical treatment when it now seemed easy to get assistance with one’s medical bills in the United States. My wife pounded me on the shoulder to express her frustration. I was not overly concerned: Anger happens. People are human.
The domestic abuse laws in Minnesota turn such incidents into crimes against the state. Yes, some men badly abuse their wives or female companions, but it is dishonest to assume that all arguments or altercations between a man and woman are of this nature. The domestic-abuse laws are a product of gender politics. They are the source of nourishment for an entire industry in an era when productive employment in the United States is declining. They also have the unintended consequence of breaking up families.
the week before sentencing
I was back in my home, able to communicate with my wife once again. Yes, it was true that my wife was often vomiting. That had to be our top concern. However, we were also planning to divorce. My wife had hired an attorney. I had not yet done so. During this period, I made a second proposal to my wife to settle the divorce case. Again, my offering was too little. When I asked my wife what she wanted, she said $250,000. I was sure she was joking or at least engaging in hyperbole.
In the meanwhile, my wife and I spent Sunday at the Mall of America. She had always wanted to go on the water slide and we finally did it. We also shopped for clothing at Sears. Shopping was one of the few activities that we could do together. Meals at restaurants were another. We drank Starbucks coffee at the Mall. Both of us wanted to enjoy our remaining time together.
My wife flew to Dulles airport near Washington, D.C. in the early afternoon of Tuesday, March 22, 2011. She would stay in northern Virginia with our daughter for a day and then fly to Beijing. Soon she would check in with her doctor and probably stay in the hospital while being tested for cancer. My wife had a cell phone in China. I was able to communicate with her in her apartment as she prepared for hospitalization.
On Thursday, I gathered with some old friends for an evening of chanting and poetry at a poet’s home. I told one of the men about my arrest for domestic abuse. The conversation continued as others entered the room. Another man said that he, too, had been arrested for domestic abuse. He had frightened his wife, leading to eviction from his home and eventual divorce.
This man also said, however, that he did not disagree with the domestic-abuse laws because some men severely abuse women. He gave an example. I started arguing that the domestic-abuse laws were unfair to both genders, but especially to men. Then another man said that he did not want to hear any more of my arguments. Another echoed that sentiment. I held my tongue, realizing how I was being viewed by others. I was not only a convict but a self-righteous one at that.
When I called my attorney to discuss changing my plea, he said that he feared the court would not reduce the anger-management requirement even if I pled guilty to disorderly conduct. I had fears that I could no longer ask for my case to go to trial. I had already pled guilty the the charge and made admissions that were only partially true. Those statements to Judge Vasaly could be now used against me if the judge at Friday’s sentencing allowed me to change my plea.
The sentencing session again began in room 143 of the Public Safety Facility at 8:30 a.m. Again, the judge did not appear in the courtroom until 9:00 a.m. The judge in this session was Richard Scherer. He would not let me change my plea. Attorney Olson hurriedly consulted with an employee of the probation department to see if the period of the anger-management sessions might be reduced. It appeared not to be possible.
Eventually, after consulting privately with the judge, my attorney worked out a deal that would allow me to travel to China to be with my wife once I had received the Chinese visa. I would be required to report to a probation officer in north Minneapolis, Anne Glidden, within forty-eight hours of returning to the United States. I would also be allowed to seek private counseling for anger management if the probation officer deemed it equivalent to what would normally be offered.
I paid the $200 in court-ordered costs for prosecution. Then I learned that there was also a $240 charge for probation services. I wrote a check for this service as well. Several days later, I called Ms. Glidden to see if I might introduce myself before the China trip. It was lucky that I called. She had scheduled a meeting with me for April 12th based on information received from the court. I pointed out that I would likely be in China on that date. Ann Glidden then scheduled the meeting for April 28th when I indicated that I would be back in town by then.
In short, I stood convicted of Domestic Abuse - Fear. However, the judgment was stayed for one year. If there was no repeat offense during that time, the charges would be dismissed. Meanwhile, I was placed on probation, having to meet all its requirements.
The judgment entered in this case ordered me not to commit a new act of assault or disorderly conduct while on probation. I would not be allowed to violate any Order for Protection, No-Contact order, Harassment order, or Restraining order. I was not to interfere with any emergency call. I was ordered to complete a domestic violence program or a private anger-management program or anger-management counseling if the probation officer agreed. I would be immediately allowed to travel to China but had to report to the probation officer within forty-eight hours of returning to the United States.
I signed the order form immediately below a statement that “I have read and understand the conditions of my sentence.” Judge Scherer also signed. The form was dated March 25, 2011.
Inexplicably for me, Judge Scherer also signed a “Firearms Order and Notice”. The findings of fact stated that “the defendant was convicted of a Violation of an Order for Protection, Stalking, or assault, where the assault was committed against a family or household member.” Based upon those findings, it was ordered that “the defendant is prohibited from possession a pistol for three (3) years from the date of conviction.” It would be a gross misdemeanor, punishable up a one year in prison and a $3,000 fine if I violated this order. The use of weapons was never an issue in the incident between me and my wife. I did not own a firearm and evidently would not for at least the next three years.
Now that my domestic-abuse case was laid to rest and the court fees paid, I could turn my attention to work orders issued by Minneapolis inspectors and possible condemnation of my house. I also learned on Friday, March 25th, that my wife’s divorce attorney had received papers for the Initial Case Management Conference. The divorce was scheduled to go to trial on April 15th.
It was time, I thought, for me to serve the Answer to my wife’s Divorce Petition. It was time to hire my own attorney to seek a postponement of the trial. It was also time to borrow more money from my banking line of credit and start writing some sizable checks. Then, eventually, I could prepare for the trip to China followed by an appearance in divorce court and a half year of counseling sessions to learn how I might deal with anger.
Events did not turn out as expected. On the plus side, Joe was able to do enough work on the house at 1702 Glenwood Avenue within the required period of time that the condemnation was lifted. Eventually the outstanding work orders were completed even though I incurred some fines and re-inspection fees. It took the better part of 2011 to work through that process.
On the minus side, the divorce was not sent to the court for settlement on April 15th. Also, I did not go to China. Instead, I hired an attorney to handle my divorce. He and my wife’s attorney engaged in a series of negotiations and legal maneuverings that led nowhere. In the course of seven months, I ran through more than five thousand dollars in legal fees, drained my credit, sent an ill-advised letter to the court, and then parted ways with my attorney. After October 20, 2011, I represented myself in the divorce proceedings. (There is another book on that experience.)
meeting the requirements of probation
With respect to the domestic-abuse charges, I was now on probation. This period would last for one full year, starting March 25, 2011, the day of my sentencing. The terms of my probation included:
“ 1. Keep your Probation Officer informed at all times of your residence and employment.
2. Report to your Probation Officer as directed.
3. Obey all local ordinances and state and national laws.
4. In the event you are arrested by any law enforcement officer, you shall immediately notify your Probation Officer and report the matter.
Comply strictly with any additional requirements that may be imposed by the Court or your Probation Officer during the term of your probation.”
The specific conditions of my probation were:
“ 1. Do not commit assault, disorderly conduct, or interference with emergency calls.
2. No violations of an Order for Protection, No Contact order, Harassment order, or Restraining order.
3. Do not use, possess, or transport any firearms or ammunition.
4. Complete a domestic violence program or private counseling as recommended by Probation.”
Following the court session, I had filled out forms in the Probation department and met briefly with a supervisor, Linnea Olson. I had expressed to her my blunt opinion that the arresting officer had lied on the police report. The Probation supervisor said he had no reason to do that. I also denied that I had a problem controlling my anger. Ms. Olson would not buy that. What about the incident that had led to my domestic-assault conviction?
The upshot was that I was required to attend Anger Management classes. Attorney Olson had been unable to get the authorities to agree to three sessions. However, I was allowed to seek “private counseling”. In other words, I could pick a Anger Management program that appealed to me instead of taking what the probation department would otherwise prescribe. My concern at the time was that the sessions not preclude a possible trip to China. The program that I eventually picked allowed two excused absences.
My first step in picking an Anger Management program was to visit the North Point Health Center where I spoke with a counselor. He gave me three leads. I first called “Oasis of Love” in north Minneapolis. Its Anger Management program consisted of fifteen 3-hour sessions, 6 p.m. to 9 p.m., each including a meal. The total cost was $350.00. My next call was the Phyllis Wheatley center but the contact person was not in.
Finally, I called the Men’s Center in south Minneapolis, which also had an Anger Management program. John Hesch, the program coordinator, told me that it consisted of twelve 2-hour sessions on consecutive Mondays and would cost $225.00 - $215.00 if you were a member of the Men’s Center. The next sessions would begin on April 25th. I promptly signed up. This seemed a good option both in terms of price and time commitment.
The Men’s Center was located in an office building on Hennepin Avenue and 33rd street in south Minneapolis. The Anger Management sessions were held in a basement room. About twenty men participated. We sat in a circle discussing our individual problems with anger. An attorney named Joel was the discussion leader. Usually, the process of “checking in” and “checking out” consumed the bulk of our time because some participants had a lot to say. We were also assigned to read a certain number of pages each week from a manual on anger management that came with the course.
I entered the Anger Management sessions with a chip on my shoulder about having been sentenced to attend. When I expressed that opinion at the first session, one of the program elders put me down with a remark about the futility of resisting authority. I soon developed the more relaxed posture of simply listening to what others said. Although there were a few rebels in the group, most were persons who sincerely believed that they had anger-management problems and the sessions would help them.
I enjoyed hearing other people’s stories about family relationships, work, or whatever concerned them. I was especially interested, for instance, when a young African man, who was a professional nurse, said he had lost his job when he was arrested for domestic abuse. He was trying to become re-certified. Another man, the hothead in our group, was arrested when he argued with a bus driver over his teenage daughter who was running off with an older man. Joel, the discussion leader, occasionally introduced principles of anger avoidance such as the idea that we tend to exaggerate other people’s intention to insult or hurt us. Unless we can read minds, it is unwise to make those assumptions. Fair enough.
I was a moderately active participant in the sessions recognizing that, for me, attendance was the important thing. I needed to attend at least ten of the twelve sessions to meet the terms of probation. In fact, I attended all twelve sessions. On August 1, 2011, I received a certificate from the Men’s Center signed by Ted, one of the program facilitators, declaring that I had successfully completed the anger management course, “Men Helping Men with Anger.” Future courses were scheduled but I did not choose to go further with the program.
The terms of probation also required that I meet regularly with a probation officer. Mine was a young woman named Lauren Banchy. We met in the Department of Corrections facility located at 4336 Lyndale Avenue in north Minneapolis. I was scheduled first to meet with supervisor Anne Glidden on April 28th but met with Lauren Banchy instead after she called to set up an appointment. I met with Glidden once in May when she approved my application to go out of state to attend an academic conference in New Orleans.
After our first meeting, Lauren and I met at this office once every three weeks. The face-to-face meetings in her office usually took five to ten minutes. “How was I doing with the program?”, she would ask. “Just fine”, I would reply. Lauren would then ask me a few more questions to see if there were other problems in my life. I was not inclined to discuss them in detail. Then I would be given a small card with the date and time of our next appointment.
This went on for about four months. Lauren’s only evident concern, expressed in the last session, was that I might be too passive a participant in the Anger Management sessions and therefore was not learning enough. Rather ominously, she remarked that she would not approve the Men’s Center program next time if its regimen was too lax. I did not want to get my discussion buddies in trouble.
Even so, I had showed up for every appointment and was participating in the Anger Management course. Because I was complying fully with the terms of probation, my case was transferred to the Domestic Special Services Program (DSS) starting in September. Instead of being required to meet personally with a probation officer, I was now allowed to check in once each month by telephone until the one-year term was up in March, 2012. All I needed to do now was remember to call a certain telephone number on a certain date and identify myself.
Although I would continue to have a conviction for domestic assault on my record, probation would soon be a thing of the past.
my battle on the divorce front
As my involvement with the probation program waned, the divorce was heating up. My wife’s attorney was continuing to stress the issue of marital misconduct and avoid serious discussions of a property settlement. Both my wife and I were dealing with substantial attorney fees. My wife, when she was in town, occasionally became nasty, especially after she had just visited her attorney. She would pound her fist on the table and yell at me. She threw and broke porcelain cups and plates. She even made death threats. Some of this behavior might be attributed to her poor physical health.
I picked up the phone once or twice to call 911 but thought the better of it. To get the law involved would only complicate matters. My wife taunted me saying that if the police had to choose between my word or hers, they would, of course, believe her. I was a convicted criminal. If I were arrested again, I would be sentenced to ten years in prison. That was what she thought she heard the judge say when I was sentenced for the first offense. Her ability to sent me to prison gave her a sense of empowerment.
In the first week of December, I visited the Domestic Abuse Service Center, filled out a form, and thought of making a complaint that included an application for a restraining order. I decided not to complete the request partly because it would complicate our divorce negotiations and partly because I did not want to drag my wife into a system I knew to be brutal and unforgiving.
After I started to represent myself in the divorce proceedings, my wife and I made another attempt to settle the divorce amicably. We reached an agreement in early November that involved a lump-sum cash payment of $27,000 to her and my assumption of all our marital debt, which exceeded $350,000. I drafted a settlement agreement. My wife wanted her attorney to look it over to make sure that the document was in proper legal form and did not contain elements that threatened my wife’s interest.
The more my wife’s attorney became involved, the more difficult it became to settle. My wife insisted that the document presented to the judge for signature had to be drafted by her attorney; yet this attorney refused to give me a document that I could sign. Either she added new provisions which contradicted the terms of settlement upon which we had agreed, or she included statements of “fact” which I knew to be false, or she slipped other questionable provisions into the agreement. This happened over a two-month period. Finally in early January 2012, I sent this attorney an email to the effect that I wanted her to produce a suitable agreement within two days or I would withdraw my offer to settle.
The attorney responded by submitting a motion for temporary relief to the court which called for me to pay my wife $2,100 per month in temporary spousal maintenance and also pay all her medical bills. Given a limited time to respond, I drafted a answer, staying up much of the night. However, because I was not an attorney, my wife’s attorney claimed that I was submitting inappropriate motions, arguments, and exhibits and thereby unnecessarily contributing to her work load. By late January, 2012, she claimed to have done $9,000 worth of work on the motion for temporary relief, proposing to the court that I pay $8,000 of this and my wife only $1,000. Meanwhile, my wife continued to charge substantial amounts of money each month to my credit card.
The court scheduled a hearing on the motion for temporary relief on the afternoon of Tuesday, January 24, 2012. By this time, my wife’s attorney had prepared a second set of documents in response to what I had submitted. I was unsure what to expect in court. The referee’s clerk called to say that each side would have twenty minutes to a half hour to make its case. I prepared a short set of arguments related to my financial situation and inability to pay what was requested by the other side.
my second arrest for domestic abuse
The day before the scheduled hearing, January 23, 2012, was the Chinese New Year. My wife was emotional about this holiday. During the morning, I asked her what she wanted to do to celebrate. She replied that she wanted me to give her money. She thought $1,800 would be an appropriate sum of money although she would accept $600. I interpreted this to mean she wanted pick a fight. Later on, my wife started to become violent. She threw the television remote and my bedroom slippers at me. She kicked me once.
The situation became worse in the early afternoon. My wife sat at the computer in my office looking at Chinese-language websites. I sat on the sofa in my bedroom with papers relating to the divorce lying next to me on the sofa or placed on my lap. Periodically, my wife would come into the bedroom, sit on the edge of the bed, and ask for money. On one such occasion, she rose to her feet and tried to snatch the papers from me that I was reading on the sofa. I felt that something had to be done to stop the situation from escalating.
Therefore, while seated on the sofa, I dialed 911 on the land phone sitting on a nearby table. After identifying myself, I told the operator that my wife was getting violent although the situation was not severe. At this point, my wife grabbed the cordless phone. “No, no, no, not true. He’s a liar, fighting me,” she said sobbing. Then she said: “Come here, come here. He doesn’t want to give me money because today is Chinese New Year.” After this brief statement, my wife put down the cordless phone and told me that she was going to see her lawyer.
I calmly finished my conversation with the 911 operator. I told her that my wife had me arrested for domestic assault the previous February. The operator said they would be sending officers out to investigate. “Maybe the officers can sort this out,” I said. My wife had left the house by then.
When two officers arrived, I described my wife’s behavior earlier in the day and her disruption of my 911 call. I also expressed the opinion that the crisis had passed and there was no immediate danger. My wife was understandably upset because of the Chinese New Year holiday. I told the officers that we were going through a difficult divorce and I did not wish to exclude my wife from our home. I also said it was not necessary for them to write a police report. The officers asked permission to look briefly through rooms in our unit. Then they left.
I spent the next hour or so at the computer typing a summary of what I intended to say at the next day’s divorce-court hearing. Then I went outside to shovel snow from the sidewalk next to property I owned. As I was crossing Glenwood Avenue to clear snow from in front of a duplex, a Minneapolis squad car pulled up. An officer called me by name. I walked back across Glenwood. The officer then told me that my wife had accused me of hitting her and he would have to arrest me. I gave the snow shovel to the officer. He handed it to my wife who was standing a short distance away.
The officer, Jeremiah Kocher, seemed apologetic. Hinting that he might not believe my wife’s story, he said that this was one of his least favorite types of assignment. Still, my wife had accused me of striking her so he had to make an arrest. He could get into trouble if he failed to do so and something terrible happened. The officer put me into the back seat of the squad car without handcuffs. He also said something that I do not quite remember: that because the complaint had not been made at home, he would not have been authorized to arrest me if I had remained inside my house. But because I was out shoveling snow, he was so authorized. My wife was conveniently on hand to point me out for arrest.
Officer Kocher read me my rights regarding statements to the police. I would not be required to talk unless I wished to do so and could request that an attorney be present. However, I knew from the previous arrest incident that I would not be provided with an attorney. My side of the story would not be included in the official record unless I spoke. Therefore, I said I did wish to give testimony. Officer Kocher then turned on a video recording device pointed at the back seat. I told what had happened earlier in the day. It was the mid to late afternoon.
a day in the Hennepin County jail
Officer Kocher and his partner, Daniele Evans, talked pleasantly in the front seat as the squad car headed for the booking facility downtown. She would soon be reassigned to the gang unit. As we approached the facilities, Kocher said that he would have to put me briefly into handcuffs to comply with police regulations. I thanked him and his partner for their courtesies toward me, so unlike what had happened during the arrest in February 2011. We stood around near the squad car for ten minutes. Then I was led into the booking area.
The routine was familiar. I needed to empty my pockets and remove my overcoat, shoes, and undershirt. In contrast to the previous incident, however, I was allowed to wear some of my street clothes. The photographs had to be retaken as I stood in the foot steps painted on the floor but the finger-printing went smoothly. I was again given a plastic wrist band. Then I made my single free telephone call, again to Joe. I told him that I had again been arrested for domestic abuse. However, I did not want him to bail me out this time. I would just sit in jail.
Part of the booking experience is to sit in the holding cells talking with fellow inmates or listening to what they told others. Black, white, and Latino prisoners sat together on benches awaiting the next step in the process. I struck up a brief conversation with a white man who said he was homeless. He was in line to receive a subsidized apartment. He was now worried that the arrest would ruin that opportunity. Why was he arrested? He violated a no-contact order when the alleged victim had requested a meeting and then reported the incident to the police. Now he was looking at 21 days in the work house.
This man said he owned a house and several acres of land near Brook Park, Minnesota, several miles southeast of Lake Mille Lacs. Another inmate had lived there, too. They struck up a conversation about people they knew in that town. This man also expressed the opinion that the slot machines at the Hinckley casino were rigged to give a lower payoff than what was advertised. He had worked as a machine technician and been ordered to change the internal codings. But this man also freely admitted to having regularly used cocaine, meth, and other hard drugs. Now, a changed man, he was attempting to find a place to live in the Twin Cities.
Another man in the holding cell was worried that he would lose his job if he was not released by a certain time. He worked for a company that was setting up the Princess Diana exhibit at the Mall of America (which includes Di’s wedding dress). I forget what was his offense but it did not seem serious - maybe being picked up on some kind of a warrant. Most inmates seemed to me to be facing punishments disproportionate to the offense if their stories could be believed.
Persons booked at the Hennepin County jail are asked questions about their physical and mental health. I have numerous dental problems and thought maybe I might receive some free work on my teeth while in jail. Unfortunately, the work is done only on Wednesdays. Also, I was told that the jailhouse dentist only pulls teeth. I was asked whether I felt suicidal or people were “out to get me” while in jail. The right answer, which I gave each time, was “no”. At this desk, I did, however, pick up a book of rules and regulations regarding inmates at the county jail which I carried around with me for the rest of my period of confinement.
While sitting in a holding cell, I realized that I needed to call Joe again so that he could inform the divorce-court referee that I was in jail and might not be able to attend tomorrow’s hearing. I had already used my free call.
There are telephones in the cells but, to use them, inmates need to make payment arrangements. One option is to purchase a card of prepaid calls while becoming incarcerated. However, I did not have any money since I did not have my wallet on me when I was arrested. Another option is to place a collect call, hoping a friend will accept it. I tried to call Joe but got a recording. I then successfully reached my former wife, Joe’s sister, who said she would relay the message to him. To place calls from the cell, you need first to enter your prisoner ID number printed on the wrist band. A fellow inmate showed me how to place calls.
It was then too late for the 5:00 p.m. meal. A group of inmates, both male and female, were assembled, given a thin blanket and sheet, and then led to our permanent cells down several set of corridors and up to another floor. The inmates were then separated. I was placed in a room, cell block xxxx A, which contained fifteen to twenty other persons. My bunk was the lower one at the end, 4 bottom. There was a television set across the room, tuned to Channel 4. I quietly made my bed.
I had fewer conversations with this group of inmates than with those in the holding cells. Around 80 percent of these inmates were black. The dominant personality was a tall black man, perhaps 6 foot, 5 inches, who looked like a professional basketball player. When I first came in, he asked me about the circumstances of my arrest. I told him that I was married to a Chinese woman who had turned the tables on me when I had called 911 earlier in the day. He expressed outrage at that situation. I also gave my age - 70 - and was therefore known as “grandpa” in subsequent conversations. Since several of the other inmates knew each other, I kept to myself, gradually retreating to my own bed.
In the early evening, a sheriff’s deputy led me to another room where I spoke with a man from the Probation department. He informed me that my arrest meant that I had violated the terms of probation. This was a more serious situation than before. I objected that I had merely been accused of striking my wife; the charge was fabricated. That did not matter, the man said. The arrest in itself constituted a probation violation. I assured the probation officer that, this time, I intended to take the case to trial. He agreed that, if I were acquitted at trial, the probation violation would go away. Otherwise, it would not.
The lights and the television set went out around 10 p.m. in our bedroom cell. That did not stop the conversation from continuing. As I lay in bed, I could hear several persons in nearby bunks talk about their personal lives. More than a few were not in nuclear families but had children. Several inmates referred to the “bitches” in their lives. One man might have four bitches on his string; another might have six.
“ Bitches”, as I understand it, refers to girl friends in a relationship that involves both sex and money. Some of these women had good jobs in downtown Minneapolis. One man regularly made the rounds collecting money from his bitches - $200 here, $400 there. I understood that this might have been the main way he supported himself. Jail is a good place to learn about the realities of life. The conversation eventually subsided and I fell asleep.
Roll call is at 7:00 a.m. Inmates are supposed to rise from their beds, dress, and line up at the door so a sheriff’s deputy can read the names on a list to see if everyone is there. The regulations also require inmates to mop the floor near their beds. I did not know this. I thanked a fellow inmate mopping near my bed. When the tall man suggested that I also should do some mopping, I said I expected to be discharged in the morning.
There were a few sour remarks about my attitude but nothing more. After taking roll call, the deputy gave us each our breakfast, consisting of a tiny box of cereal, one ounce of skim milk, and an apple.
Before long, another deputy arrived to take me and another inmate to another holding cell to await our court appearance. Behind glass in a booth, we would be talking directly to a judge. I understood that the judge would consider my case around 10:00 a.m. I had previously seen persons testify in this manner when I had attended court hearings in February and March of last year. Now it was my turn.
As we two inmates were led to the booth, we were warned not to communicate with or acknowledge persons we knew who were seated in the courtroom. I saw my former wife and nodded slightly. I later learned that Joe was seated behind a pillar.
The presiding judge was Philip C. Carruthers. If I am not mistaken, he used to be the Speaker of the Minnesota House of Representatives. His job was to set the terms of my release. Bond was set at $2,400, which meant that I would have to pay $240 to a bail bondman. Alternatively, I might pay $6,000 and not be subject to no-contact conditions.
The most important question from my standpoint was how the no-contact order would be structured. In my first arrest, I had been forbidden to set foot in my house at 1702 Glenwood Avenue. This time, I argued that my wife and I could be effectively separated if we were each allowed exclusive use of our respective units on the second floor, units 3 and 4.
The city prosecutor argued that there was a single kitchen and bathroom that we would have to share. I assured the judge that each unit had its own kitchen and bathroom. We could each lock the door to our own unit. The only way we might have contact would be when we walked upstairs after entering the building. However, there were two sets of stairs. I proposed that if my wife used the front stair case exclusively and I used the back stair case exclusively, there would be no possibility of contact.
Judge Carruthers bought my argument. It was an important victory. I could stay in my own home during the months before the case came to trial, if the city decided to prosecute, and could also continue to handle my own divorce case.
While standing before the judge, I asked if I could see the police report. The prosecuting attorney promptly gave me a copy. Judge Carruthers asked if I had arranged for bail. I was ambivalent on this point. Then, unexpectedly, someone handed the judge a paper. Bail was being arranged for me. The judge set a date of February 6, 2012, at 8:30 a.m. for a preliminary conference between my attorney (me) and the prosecutor from the Minneapolis city attorney’s office. That would be my opportunity to plead guilty or not guilty to the charges. I then left the booth and my fellow inmate made his appearance.
It was she, Sheila said later, who had slipped the paper to the judge. She and Joe were making the arrangements for bail. The papers given the judge also included the complaint I had made against my wife at the Domestic Abuse Center. Sheila thought this made have had some impact on Judge Carruthers’ decision to let me stay in my home. The other judge, Wernick, had had only a copy of the slanderous police report and promised pictures of blood on my wife’s mouth when he made his decision to banish me from the home.
I was in the hallways and then another holding cell for an hour. I asked a female deputy if the paperwork related to my bail had yet been processed. Who said you had bail, she asked? I said: the judge. The deputy checked for several minutes and then informed me that I did not have bail. She promptly ordered me to surrender my street clothes to the property room and begin wearing prison garb. I later managed to place a telephone call to my former wife who told me that Joe was working on bail. It might take two or three hours for the paperwork to be processed.
After this, I was led to another, much larger unit which looked like an interior court yard surrounded by individual cells. The deputy explained how I should always stand behind a certain line when I approached the desk. I was ordered into cell 7. I asked the deputy if I could make another phone call to check on the bail. Since it was now 1:00 p.m., I became increasingly concerned that I might not be released in time to attend my divorce hearing scheduled for 3:00 p.m. at the Family Justice Center. The deputy told me it was “quiet time” and phone calls could not be made during this period.
I was now by myself, behind a locked door. Fortunately, I had been given another blanket, sheet, and towel, which I took into the cell. Given flimsy bedding for the previous night, I was starting to catch a cold. The air vent was blowing cold air. I had a mild head ache. Therefore, I spent much of the time huddling beneath the blanket trying to stay warm. Meanwhile, the public-address system announced that inmates would be allowed to leave their cells to attend Bible classes. Since I did not feel well and was expecting to be released soon on bail, I decided to skip this opportunity.
Periodically, I checked with the deputy behind the desk to see when “quiet time” would end. The answer was 3:00 p.m. - the same time as when my hearing at divorce court would begin. Meanwhile, I could not make a telephone call. I had to resign myself to the fact that I could not make my court appointment. I was effectively in solitary confinement.
Suddenly, during this two-hour period of enforced isolation, I received a call that I had a visitor. A deputy led me to a small room outside the cell where a young man was seated at a table. He was Keilen Curtis, an attorney with the Curtis law firm in downtown Minneapolis. I later learned that my former wife, Sheila, had purchased an hour’s consultation for me.
Being distracted with other concerns, I frankly do not recall much of what Mr. Curtis said to me other than the fact that he quoted a certain rate for representing me. The rate seemed reasonable but, stuck between divorce court and new charges of domestic abuse, I said I could not afford to hire an attorney just now. In truth, I had not had enough time to process what was happening to me. My headache was becoming worse. Keilen Curtis said I had not used up my full hour of consultation and I might call him if I had further questions. Rather disoriented, I wandered the halls and then returned to my cell.
Not long after 3:00 p.m., I learned that bail had been arranged and I would soon be released. A deputy led me back to the booking area and the property room. There, a woman behind a window returned my shoes, coat, and street clothes. With the window shut, I disrobed and put the used jail clothing in a basket in the hall. Then I received some other possessions taken from me at booking including the police report received in court. The plastic band was cut from my wrist, I was given exit paperwork, and I was free to leave. The tall black man who had been my cell mate was leaving at the same time.
The deputy again informed me that my next stop was the Goldberg Bail Bond office which was a block away from this facility to the left. After filling out Goldberg’s paperwork, I called Joe. He soon arrived and drove me home.
back at home
Now I had time to review the police report of my arrest. The offense was described as “5th degree domestic assault.” The crime was said to have occurred between 2:00 p.m. and 2:15 p.m. on January 23, 2012, in the upper unit at 1702 Glenwood Avenue in Minneapolis.
The Public Data section reported: “Victim went to the 4th PCT to file a domestic assault report claiming she was assaulted earlier by her husband (AP), Victim also requested an escort home to retrieve some property. Upon arrival to the victim’s residence, AP was outside shoveling snow and was taken into custody. Victim was given a blue card. EMS (emergency medical service) was declined. No injuries were observed. Miranda was read on digital MVR #76614. AP was booked HCJ (Hennepin County Jail) for 5th degree domestic assault. Further investigation.”
The Supplement report issued by officer Kocher stated:
“On 01/23/2012 I was directed to the 4th Pct. lobby regarding a domestic assault victim. It should be noted that there was a language barrier with victim/Rose MCGUAGHEY. V/Rose also had an Asian female with her who stated she was her attorney. V/Rose attorney called a language line that spoke mandarin Chinese. Per the language line V/Rose and AP/WILLIAM are legally married. Per V/ROSE she stated that on today’s date she was at her home 1702 Glenwood Av. N with AP/WILLIAM and went into his bedroom, they share different bed rooms, and V/Rose said she was looking for the cell phone so V/LAIN could call her daughter. While V/Rose was sifting through the papers in AP/WILLIAM’S room V/Rose stated that AP/WILLIAM struck her in the face with a closed fist on her lips. I did not observe any swelling, cuts or redness on the face of V/Rose or on her lips.
After V/Rose was struck she stated she left the house and came to the precinct. It should also be noted that V/Rose stated police were dispatched to this address during the day but it was not clear as to why. V/Rose requested that officers drive her home so she could retrieve some property.
When officers arrived at 1702 Glenwood V/Rose pointed to a white male who was shoveling the sidewalk and identified him as her husband/AP/WILLIAM. AP/WILLIAM’s ID was confirmed and AP/WILLIAM was placed under arrest for domestic assault. V/Rose returned home and was given a case card and her domestic supplement was completed and property inventoried.”
“While enroute to HCJ with AP/WILLIAM,” the report continued, “he was read his Miranda rights which he stated he understood and wanted to talk. The interview was recorded via the squads digital DVR in P# 76614. AP/WILLIAM stated that he never at anytime struck his wife V/Rose. AP/WILLIAM further stated that he and V/Rose are going through a difficult divorce and that he feels that V/Rose lied to police so that it will affect the upcoming divorce proceedings. AP/WILLIAM stated he was in his own bedroom sitting on the couch when V/Rose entered his bedroom and began initiating an argument.
AP/WILLIAM further mentioned that at some time during the day V/Rose had started a fight his him and had thrown bedroom slippers at him and a cordless phone. And that V/Rose had got up in his face while screaming at him. When V/Rose entered his room he stated she began crumpling up his divorce paperwork that he organized because he and V/Rose are due in court on 01/24/2012. AP/WILLIAM was adamant that he never struck of assaulted his wife at anytime. AP/WILLIAM was very cooperative during the arrest and booking process. AP/WILLIAM was booked at HCJ.”
My initial reaction was disappointment that officer Kocher had not mentioned in the report that I had placed a 911 call earlier in the day. He alluded to that fact in Rose’s statement that “police were dispatched to this address during the day”; however the statement “it was not clear as to why” was misleading. I had fully explained the situation in my recorded statement made in the squad car. Maybe officer Kocher was not as friendly to me as he seemed to be during the arrest. Maybe he was participating in a police cover-up of events surrounding the earlier call such as the officers’ failure to arrest a person who interfered with a 911 call, who had fled the scene after this call, and who was accused of throwing objects at me.
Now I regretted that I had not asked the police to make a report about the first incident when they arrived to investigate my call. Would I ever know the officers’ names or be able to convince anyone that I, and not my wife, had called 911?
My wife seemed to be home, but I was not sure. The no-contact order prevented me from knowing her whereabouts or state of mind. Later, I received a telephone call. My wife wanted some personal belongings left in my unit. I put them outside her door at the top of the steps. Later, she wanted to walk the dog. I put the dog and leash there, too. Fifteen minutes later, another call from my wife let me know that the dog was ready to be let back into my apartment. The leash was placed on the radiator. This communication may technically have violated the no-contact order. However, I had merely listened to her telephone call and done what was requested.
Since I was legally able to communicate with my wife through her attorney, I emailed this attorney to ask if she would serve as a communication channel. I wrote: “Rose may need some food or personal items in my unit. I am agreeable to putting them out on the stairwell if you are willing to inform me what is needed. I understand that you gave Rose advice that led to my arrest and infer that you may be representing her in this matter. As you know, she and I cannot communicate.”
The attorney wrote in response: “I will have to speak to my client about the matter regarding her clothing and needed items. My husband who helps translate from time to time is out of town and I have to wait for third parties to interpret. I should not be the person to be the intermediary between the two of you as I do not speak Mandarin Chinese. I am the lawyer on this case, please be mindful of this. Further, if you are insinuating that I fabricated facts or advised her as to how to talk about her story to make you guilty, this is false. Rose told her story to the police officer through third party translation services, individuals on the family law roster, which Rose had to pay for. There was no one available at the police station at the time and there would have to be a wait. I will not represent her in this matter, however, generally speaking, a prosecutor from the city (or county) is your opponent, not me. I did not find out that you had been arrested until later that evening.”
So my wife’s lawyer would not help. Here was also a continuation of the claim that Rose, my wife, did not speak English so well, but only Mandarin Chinese. (Her attorney, being originally from Hong Kong, spoke Cantonese Chinese.) My wife spoke English in January 2000 well enough to convince me to marry her. She had lived in the United States on and off since August 2001, taken English as a second language and worked on the sales floor at the downtown Target store for three years dealing mainly with English-speaking customers. Despite the legal pretense, her comprehension of the English language was normally good.
Back at home, Joe filled me in on other events that had taken place on afternoon of January 24, 2012,while I was in jail. Yes, the divorce-court hearing had been held, as scheduled, at 3:00 p.m. Referee Cochrane had considered rescheduling the hearing but my wife’s attorney successfully argued that she had gone to great effort and expense in assembling her team ( presumably including Chinese-language interpreters) for the hearing.
Joe himself had wanted to attend the hearing, but the referee would not allow this. She had, however, given him a copy of the other attorney’s brief, instructing him to deliver it to me. Joe thought the court might itself send me papers explaining what I should do next. In any event, I had been given 48 hours after release from jail to submit a response to the other attorney’s brief.
in search of answers
A response to what? All I had was a copy of the fax from my wife’s attorney to the divorce-court referee dated January 24, 2012, making a new motion and various assertions of fact. On the following day, January 25, 2012, I sat at the computer drafting my response. Even so, I was not sure which set of documents needed a response, this or something else from the court. I was generally unsure what I needed to do in the 48 hours I was allowed.
Therefore, on the morning of January 26, 2012, I consulted with an attorney at the self-help department in the Family Justice Center. He advised me to prepare a response pointing out factual inaccuracies in my wife’s affidavit.
Since the referee’s office was on the fifth floor of the Family Justice Center and I was downstairs, I decided to call the office to see if I might speak with the referee’s clerk about what had happened at the January 24th hearing and ask what was now expected of me. The clerk was busy. I was asked to take a seat outside the court chambers. A short time later, Joe and I were invited into the chambers themselves to meet with referee Cochrane herself.
This conference, sandwiched into referee Cochrane’s schedule, lasted more than a half hour. The referee put my wife’s attorney on the line for a conference call. I learned that there would be no additional documents coming from the court. I needed to respond to my wife’s attorney’s brief.
If I wanted to know more precisely what had happened at the hearing on January 24th, I could order a transcript of the hearing on a rush basis; however, it would be “spendy”. The reality was that I had only six hours left of the forty-eight hours allowed for a response. I tried to explain how I had been arrested and jailed for domestic abuse and it was not my fault. The referee promptly cut me off. Soon thereafter she ended our meeting.
I could sense in the attorney’s telephoned voice a certain satisfaction in knowing that I could not meet the 48-hour deadline. What she did not know was that I had already done most of the work. After I made a few changes to my document taking into account the information learned that morning, Joe did, in fact, serve the completed response both on my wife’s attorney and the court. I was feeling exhausted, but had done it. I had written and delivered my response in divorce court by 4:30 p.m. on January 26, 2012, within two days after being released from jail.
Earlier in the day, January 26th, Joe and I had pursued other measures related to my arrest. There was a potential problem that my wife and I might accidentally meet on the front or back staircase leading to our apartments. To prevent that from happening, I sought a restraining order that would prevent my wife from using the back staircase. That would be an exclusive entry way for me while my wife exclusively used the front set of stairs.
I filled out a form at the Domestic Abuse Service Center located in the subterranean passage way between the Hennepin County Government Center and the Minneapolis City Hall. To complete the application, I needed to wait for a representative to review and amend my application and for a judge to approve it.
new evidence and reports
Meanwhile, Joe came back with some astonishing news. My wife had not contacted the police to arrest me for assault but merely to retrieve property from our home. The 911 records office in room 31 of City Hall had a report called “Incident Detail Report” which gave the precise time of the complaint, the names of police officers involved, and a brief description of the incident. The report concerning my arrest, written at 3:51 p.m., commented:
“ Please enter a call for 1702 glenwood upper this will be a domestic retrieve property, return call from earlier. female is at base 400 (meaning the 4th precinct police station) with her attorney. female half does not speak english, but her attorney does and can also provide telephonic translators. squad responding, please advise base 400 when en route, so the calling party can respond also. 410 (squad car with officer Kocher) - TRN FEMALE HOME TO RETRIEVE SOME PROPERTY. Transported (to jail) person gender is M (for male).”
To my relief, there was also an Incident Detail Report for my earlier 911 call. This report, issued at 2:11 p.m., or an hour and forty minutes earlier than the other report, commented: COMPLNT STATES WIFE IS GETTING VIOLENT .. IN PROCESS OF GETTING DIVORCE ... WIFE GRABBED PH CRYING ABOUT MONEY/ASLT ... COMPLNT STATES SHE HAD HIM ARRESTED LAST FEB FOR DABUSE. female GOA, male declined a report at this time.” The officers involved were Scott J. Dahlquist and Jeffrey B. Waite.”
Now I could prove that I had made a 911 call before my wife had gone to the police station where she accused me of domestic assault. My concern with this second report was that it said my wife was crying about “MONEY/ASLT”, meaning money and assault. I had not assaulted her. I understood that there was also a “non-public statement” related to the Incident Detail Report. If so, the records clerk said, it would have to come from the city attorney’s office.
If I had called 911, perhaps there was a recording of the call? Could I obtain a copy of this recording from the city? Indeed, I could. If I paid $10, the 911 records department would give me a compact disk with the sound recording. I ordered the disk, whose recorded portion lasted approximately two minutes, and listened closely. Then I wrote down the words as best I could make them out to be:
“ 911 call recorded on CD 141123
William (husband) - Identifies himself and gives address. Says: ‘My wife is getting violent at the moment. I don’t think it’s a serious illness.’
Rose (wife) gets on the phone, sobbing. Says: ‘No, no, not true. He’s a liar, fighting me. Come here, come here. He doesn’t want to give me money because today is Chinese New Year. He’s a liar, fighting me. Downstairs criminal is ... in there.’
(Note: ‘Downstairs criminal’ is my wife’s preferred name for the female tenant, my former wife, who lives in the first-floor unit. Rose and she are feuding. Nothing is said here of me hitting her in the face. My wife’s only complaint is that I would not give her money for the Chinese New Year.)
After Rose has stopped talking, I complete my conversation with the 911 operator. I indicate that Rose had me arrested for domestic arrest last February and ‘she pulls this all the time.’ (I am referring to her sobbing.) I say, ‘I don’t know. Maybe the officers can sort this out.’
End of call.”
I was jubilant. This was, I thought, slam-dunk evidence of my innocence. Not only did the police report state that there was there no visible evidence of an injury, but the recording of my 911 call revealed that Rose was not complaining that I had struck her in the face as the police report claimed. “Fighting me” hints at violence but it can also be taken metaphorically. One would think that a person who had just been assaulted would mention that fact instead of complaining that I had not given her money or that my former wife lived downstairs.
Optimistically, I wrote the Minneapolis city attorney, Susan Segal, summarizing the evidence that would justify not bringing charges against me. I was hoping that this letter would persuade her to dismiss the case. My letter was written and mailed on January 28, 2012.
a few road blocks
On Friday, January 27, 2012, Joe and I again spent the morning in downtown Minneapolis, wrapping up loose ends. I returned to the Domestic Abuse Service Center expecting to complete my application for a limited restraining order against my wife. However, I was late to the 9:00 a.m. appointment so my case was put behind those of others persons waiting in the office.
My second project was to obtain a copy of the Minneapolis Police Department’s policies and procedures related to arrests for domestic assault. Someone had told me this document was available at the Domestic Abuse Service Center. The receptionist denied having a copy there.
At this point, the sheriff’s deputy in the office informed me that I would have to go to the police precinct station whose officers had arrested me and request to see a copy. Rather testily, I told the deputy that these written policies, prescribed by state law, were a matter of public record and I did not need anyone’s permission to see them. “And I will see them,” I added sternly. He gave me no further argument although this outburst may have soured my relationship with others in the office.
While I was waiting to see a Domestic Assault representative, I thought I might make a brief trip to the Minneapolis city attorney’s office to ask about receiving a copy of the Domestic Assault arrest policies. It was less than five minutes away. The receptionist at the city attorney’s office said that a staff person would come out to see me in ten minutes or so. After ten minutes, when the staff person was still busy, I became nervous about missing my second appointment at the Domestic Abuse Service Center so I rushed back to the other office.
At length, Joe and I were interviewed by a female representative in the Domestic Abuse Service Center who reviewed my application and helpfully made changes. I had to wait until a court reporter typed the application. Then a judge would review it and perhaps issue the restraining order. That meant hours of waiting, but I had to do it. Around 2:30 p.m., I received word that, unfortunately, the judge had denied my application.
Judge Lynn C. Olson wrote on the application form: “Deny. Petition is denied for failure to allege sufficient facts to constituted domestic abuse as defined by statute.” I assumed that the judge had read my wife’s statement, “You are going to die”, in deciding whether or not my allegations rose to the level of domestic abuse. Someone later told Joe that my petition was denied because I had not insisted upon a police report from the officers who had responded to my 911 call. The facts were therefore not sufficiently established.
This day was not going as well as the previous one. I walked back to the city attorney’s office. The staff person who was to have visited with me was out to lunch. I waited another hour. Finally, he appeared. The police department’s policies and procedures relating to arrests for domestic abuse were on the city’s web site, he said. I had already visited this site and found only a general statement of policy. Surely there was a more detailed version. If so, I would not be seeing it now. I also asked the staff attorney whether I could view the non-public portion of the Incident Detail Report if I was acting as my own attorney. This would be made available at the preliminary conference with the prosecuting attorney, he said. Batting 0 for 2, I decided to call it a day.
My successful delivery of a response to my wife’s attorney’s second set of papers precipitated a third set of papers from her, which I received by email on January 28, 2012. That meant that I needed to devote another day to answering her accusations. The other attorney argued that referee Cochrane had given me explicit instructions not to raise the issue of my arrest for domestic abuse in court papers. I argued that her instructions pertained only to the immediate situation, our discussion in court.
I felt strongly that I needed to make clear that my guilt from the alleged assault was in dispute. Because the referee had not postponed the hearing, it appeared that she had given credence to the accusation of assault. “Would she (the referee) have allowed the hearing to continue, for instance, if the respondent had suffered a massive stroke and lay in a hospital unconscious?,” he asked. “Probably not.”
The fact that I answered what my wife’s attorney thought would be the final word infuriated her. “Please stop sending numerous communications to the court,” she emailed me. “This is increasing my client's attorney's fees, unnecessarily.” We both understood that she meant to recover those fees from me.
The self-help attorneys at the Family Justice Center had been quite helpful. I had visited them on three separate occasions. Unfortunately, there is a limit on the number of times one can use them. I had reached that limit. The last attorney advised me not to seek the referee Cochrane’s removal since the bar for removal is quite high. He did advise me to answer the other attorney’s latest submission and to call the court clerk to say my answer was coming.
When I did call, the clerk said that the referee might or might not look at what I prepared. But I did submit an answer and a proposed order for the motion for temporary relief and was now awaiting the court’s decision. In the meanwhile, I had drafted a lengthy complaint against my wife’s attorney for the office of Lawyer Professional Responsibility.
After the arrest, I had a duty to contact my probation officer again because I had violated the terms of my probation. I met with the same officer as before, Lauren Banchy, at the Corrections facility in north Minneapolis on Tuesday, January 29th, at 11 a.m. She informed me that she would be at the Preconference Hearing scheduled for February 6th.
At that time, I firmly expected that the city would drop the case. I learned from Lauren that, even if this happened, I would still be guilty of a probation violation since the police had arrested me. So much for the principle of “innocent until proven guilty”! However, if I was found innocent in a trial, there would be no violation. Lauren Banchy wanted to see me again on February 14, 2012.
the pre-conference hearing
Believing that my innocence could easily be established, I was actually looking forward to the Pre-conference Hearing on February 6th. My main concern was that I would wake up in time to make the 8:30 a.m. appointment since I did not have a functioning alarm clock. If I did not show up for this court appearance, I would have to pay the bail bondsman $2,400. I did, however, manage to arrive at court in time. It was at the Public Safety Facility, 401 Fourth Avenue South, Minneapolis, MN, 55430, next to the jail where, two weeks earlier, I had spent a day behind bars.
After signing in, I met a representative of the City Attorney’s office, Kathy Rygh, who was substituting for prosecutor Jennifer Saunders. She said the city was prepared to offer me a deal. In fact, there were two deals.
First, if I pled guilty to disorderly conduct, imposition of the sentence would be stayed. However, I would go on probation for another year and be subject to conditions set by my probation officer, Lauren, who was sitting next to us in court. There would be another pre-sentence investigation.
Second, I could plead guilty to a probation violation and receive a sentence of up to 45 days in the Hennepin County work house less the four days already served in jail. In return, the city would dismiss the charges against me relating to the second arrest for domestic abuse. I promptly rejected both offers. March 26th was set for trial.
The trial would be held in the Hennepin County Government Center starting at 9:00 a.m. I also asked if there was any way I could go on trial over my first offense on February 18, 2011, but was told this would not be possible. I asked if I could see a copy of the Minneapolis police department’s policies relating to arrests for domestic abuse and was told that I should request this in discovery.
Back in March 2011, my attorney, John Olson, had received a copy of a report issued by the City Attorney’s office in which the alleged victim had participated in a follow-up interview. That report had provided evidence that the arresting officer, Steven Herron, had lied in the police report. I was grateful to my wife then for being honest.
This time there was no such honesty or even relevance to the incident in question. About the only good thing was that the report said that I did not have a problem with alcohol or drugs. On the police supplement, my wife had testified: “reaching for phone on paper & husband punched me in the lip.” Yes, she was afraid during the assault. No, she did not try to defend herself.
The Domestic Assault Pretrial Victim Input Form, prepared by Shellie on January 31, 2012, revealed that my wife was opposed to the city’s dismissing the case. “Victim states: ‘She wants Defendant to admit to what he did.” It also said that the Victim wished to have a No Contact order, with this comment: “Victim would like the court order the Defendant to allow her to retrieve her belongings in his unit. Victim can go with a police escort.”
Was police report accurate? Neither the “yes” nor the “no” box was checked on the form. This comment was given: “Victim states the Defendant struck her once in the face and she left afterwards to the precinct and reported it.” (My previous 911 call is not mentioned here nor the fact that my wife reported the assault an hour and forty minutes after the alleged incident.) My wife also claimed to have “minor bleeding on her lip” although she did not receive medical attention and no pictures were taken.
I thought that the prosecutorial report would provide additional details about the incident where violence was claimed. Instead, there was this statement: “Victim states she is currently living with her daughter in Washington but does come to MN often to meet with her attorney. Victim is also a cancer patient and sees a doctor in MN. Victim states does does not plan to live in MN, but since she comes back often she would like the No Contact Order. Victim states, currently she and Defendant both are in the same building complex. The Defendant lives in unit #3 and victim is across the hall in unit #4. Victim states the defendant has some of her stuff in his unit and she would like the opportunity to get them back. Victim states the Defendant is having an affair with the woman downstairs and that woman’s brother owns the complex. Victim states since there’s a No Contact Order, the Defendant keeps his unit locked and she can’t get her stuff.”
This was in the “private data” section of the Incident Detail Report. Nothing was said of the circumstances of the alleged assault, of my wife’s complaint given at the 4th precinct headquarters, or of the police escort when Rose came back to our home at 1702 Glenwood Avenue.
Why did my wife expect to find her cell phone among my divorce papers? How exactly did I assault her? What was the divorce attorney’s role in making the complaint? Why did my wife need a police escort to retrieve her belongings from our home? Where was she planning to take those belongings? These were some of the unanswered questions about the incident which I thought might be clarified here. Instead, we learned that the victim was a cancer patient. We also learned that I was having an affair with the woman downstairs and that this woman’s brother owned the “complex” (actually, a four-plex) in which we lived. Both were false statements.
A yellow sheet, “Hennepin County Pre-Trial Evaluation”, did provide some further detail. “Victim’s Comments” (thru Chinese interpreter) were as follows: “The Victim and Defendant are married but separated, although they share a kitchen and bath between the apartments. The Victim stated that the Defendant back-handed her in the mouth. She stated he has been verbally but not physically abusive since sentenced on Domestic Assault in March, 2011. The Victim stated that the Defendant’s mistress also lives in this building and verbally threatens Victim with deportation. The Victim is afraid of Defendant and wants no-contact. She is concerned due to the shared living arrangements.”
This statement neglected to say that units #3 and #4 both had their own bedroom, living room, kitchen, and bathroom. There was no “mistress” living in the building or, to my knowledge, any threat of deportation, which would be senseless since my wife is a U.S. citizen. The only useful detail was that I allegedly “back-handed” my wife “in the mouth”, which is a manner of punching that contradicted her earlier claim, in the police report, that I had “struck her in the face with a closed fist on her lips”. I had no physical contact.
Since the prosecutor and I had failed to reach an agreement, we now appeared before Judge Luis A. Bartomei. He set the date of trial, sternly advising me to hire an attorney. When I said the last one had given me (in hindsight) bad advice, he recommended finding another attorney. I complained to the judge that the City Attorney’s reports had not given adequate detail about the incident for which I had been arrested. He said that was a “discovery” issue, of little concern here. He did not want to hear about my previous 911 call.
Judge Bartomei did, however, inform me that the city was planning to prosecute me on three different charges: (1) physical harm, (2) victim’s fear, and, (3) disorderly conduct. These all pertained to same incident although to three different statutes. If the prosecutors could not convict me under one statute, they could try to do it under another. Such convictions would not add to the penalty but merely allow the prosecution to employ three different strategies at the same time to increase the chances of conviction.
I feared that my case would descend into legal gamesmanship, requiring an attorney’s assistance to survive. Yet, I was financially so stressed that I postponed indefinitely hiring such a professional.
Joe thought that if my wife brought an accusation against me at the police station, there must be an associated 911 call. If so, I might order a compact disk that contained a sound recording from the 911 records office.
When I visited the office after the hearing, the clerk told me that there was no such recording and, even if it existed, I could not obtain a copy of it through her office. By law, only the person who placed the call could obtain a copy.
Also, Joe and I again visited the Domestic Abuse Service Center. Might I obtain a restraining order against my wife for use of the back staircase based on the papers which I had filled out in early December. No, we were told, that evidence was too old. However, I could try for an order based on the milder acts of violence that had occurred on January 23rd.
The woman at the Center who took the application became sympathetic after Joe explained what I was going through with the divorce. She wrote up a complaint to be forwarded to a judge and later reviewed its wording with me. I thought some of the statements were not accurate. If we amended the statement to be less harsh, the advocate thought the judge would not sign the order. Therefore, I decided to abandon my pursuit of a restraining order.
The immediate question was whether to hire an attorney to represent me in the latest domestic-abuse case. Judges and most other persons I met advised me to do that. I resisted for several reasons: First, I was quickly exhausting my funds and my credit. Second, I thought I knew the case as well as anyone else.
Win or lose, I wanted to be in charge of my own destiny, and not be misled or casually represented by hired attorneys. I wanted to do my own cross-examining during the trial. However, I thought I might need some instructions in court procedure from an attorney before setting foot in the court room.
My landlord friend, Jim Swartwood, referred me to a man who used to be a defense attorney but no longer practiced law. He, in turn, referred me to his sister-in-law, who set up an appointment with her employer, an attorney. I said I might be interested in representation or advice by the hour. She said her employer would not accept that type of arrangement. His flat fee for representing me would be $2,000.00.
I had to defend myself on two counts: (1) the assault charge, and (2) the probation violation. She said it might be well to take the prosecution offer that would allow me to plead guilty to disorderly conduct and then have to with the terms of probation for another year. However, I would then have two convictions on my record.
I believed it unlikely that my wife would appear at the trial. Except for a few days in late January, she had been living with her daughter in northern Virginia. Despite her right to live in Minneapolis in the apartment unit next to mine, its door had remained locked. She was not living there. The state could not compel her to return to Minneapolis to testify and I doubted that she had a sufficiently strong incentive to do so, considering the fact that she had lied. If she did not appear, I might simply introduce a motion to dismiss the case because the evidence against me would be hearsay. On the other hand, I needed to be prepared if she did appear in court as a state witness.
Immediately after the Preconference Hearing on February 6th, I telephoned officer Jeremiah Kocher at the 4th precinct station to request that he issue a supplemental report that would state explicitly that I had called 911 earlier in the day. I also wanted the report to clarify why my wife needed a police escort to retrieve her belongings. Such information would blow a hole in the theory that I had hit my wife and she had gone to the police station to complain.
Officer Kocher was not on duty several times when I called. He did once leave a message for me, which I missed. Our telephone tag went on for weeks. Finally, I wrote Kocher a letter stating my request. It was ignored. After another week, I wrote the police chief, Tim Dolan, asking for help in getting Kocher to write a supplement. The chief turned my letter over to an internal-affairs investigator, Lt. Travis Glampe, who sent me a letter on February 24th to the effect that officer Kocher had done nothing wrong and no additional report would be forthcoming. He, too, advised me to hire an attorney.
On March 3rd, I received a letter from the prosecutor in the City Attorney’s office, Jennifer Saunders, referring to documents and issues which the prosecution intended to raise at the trial. This letter disclosed that the City Attorney would summon my wife, officers Kocher and Evans, and the 911 operator, Kathy Lawler, as witnesses against me.
Most of the documents which the prosecution intended to submit at the trial I already had. There were the police reports for my two Domestic Abuse arrests, on February 18, 2011, and on January 23, 2012. There was a copy of three reports regarding the second arrest on January 23rd: the Minneapolis Police Department’s Victim’s Domestic Violence Supplement, the Minneapolis City Attorney’s Domestic Assault Pretrial Victim Input Form, and the Hennepin County Pre-trial Evaluation. There were the two Incident Detail Reports issued on January 23, 2012. Those documents I already had.
The new documents were rather disturbing. First, the prosecution included a document titled “Statement and Notice of Other Offenses that the State Intends to Prove”. I was advised that pursuant to Minnesota Rule of Criminal Procedure 7.02, Minnesota Rule of Evidence 404, and Minnesota Statute 634.20 the State may offer evidence of other offenses at trial. It would seek to admit these offenses to show: (1) “intent” and (2) “common scheme or plan”. Attached was the police report for my arrest on February 18, 2011. Elsewhere in the packet of materials were photographs of my wife taken on February 18, 2011, intended to show blood on her lips.
Being ignorant in the law, I took this notice to mean that the prosecution, lacking visible evidence that I had assaulted my wife, would try to convince a judge or jury that it was likely I had assaulted her because I had done it once before. There was a pattern of behavior which showed that I was a violent person. After all, on March 18, 2011, I had confessed guilt to domestic violence and that was all that the state needed to prove its case.
I was unsure how a prior offense established intent to commit violence in the present situation. The prosecution’s cover letter referred to this set of materials as “State’s ‘Spreigl’ notice of prior acts conduct pursuant to MN. Stat. 634.20 and Minn. R. Evid. 404.” A Google search of “Spreigl notice” brought up an article in a law journal which began with these words: “Minnesota state court trial judges would agree that the most difficult and important decision in a criminal trial is whether to exclude or admit Spreigl / Rule 404(b) evidence against a defendant. Evidence that the accused has misbehaved in similar ways in the past is powerful evidence and has great potential to unfairly prejudice the jury. Because of the importance of this issue, Spreigl matters are frequently litigated on appeal.”
Clearly I was being led into a thicket of legal issues for which I would be relatively unprepared to deal with the prosecution’s arguments. In searching pertinent laws and rules for Minnesota courts on the Internet, I developed this understanding: Generally, a judge can accept evidence of a defendant’s character to prove that a certain action occurred unless such evidence unfairly prejudices the jury, confuses the issue, or is so burdensome as to become a waste of time. (Statute 634.20) That told me that a motion could be made at trial to exclude any such evidence.
Rule 404 was titled “Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. Part (a), titled “Character evidence generally”, stated: “Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.”
I took this to mean that if I presented evidence of my own good character, the prosecution could cite my prior arrest and conviction for domestic abuse as contrary evidence. However, it could not use a prior incident of domestic abuse (on February 18, 2011) as evidence to suggest that I had committed a second act (on January 23, 2012). Therefore, I would not use character witnesses in my defense.
Part (b), titled “Other crimes, wrongs, or acts”, stated: Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless (1) the prosecutor gives notice of its intent to admit the evidence consistent with the Rules of Criminal Procedure; (2) the prosecutor clearly indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor's case; and (5) the probative value of the evidence is not outweighed by its potential for unfair prejudice to the defendant.”
This passage explained why “notice” was important to the prosecution case. Rule 7.02 of Minnesota rules of criminal procedure explicitly required that I be given notice if the prosecution intended to present evidence of this sort. If my prior arrest and conviction for domestic abuse was to be brought into evidence, the prosecutor had to tell me that this would become an issue in the trial. It also had to tell me what issue would be raised and what the evidence was intended to prove.
Two checked boxes on a form told me that the state would seek to admit the evidence to show: “intent” and “common scheme or plan”. In other words, I must have had a “plan” to hit my wife on January 23, 2012, if I had done it once before. I must also have “intended” to hit her. Some element of premeditation in the second incident was implied by the fact that I had pled guilty to an act that had occurred the previous February.
Now it was clear why the report claimed that I punched my wife on the lip with a closed fist. This was the same behavior as that reported by the police on February 18, 2011. I must have a tendency to punch women on the lip. However, there were a number of problems with this logic. First, the law is quite clear that the prosecution cannot admit evidence of a prior crime to prove that another such crime was committed. An alleged “common scheme” is not sufficient evidence.
Since the prosecution letter mentioned photographs of my wife taken on February 18, 2011, I knew that my prior arrest and conviction would become a critical part of the prosecution case. A jury, looking at those photographs of my forlorn wife, would be prejudiced against me. Didn’t rule 404 permit me to object to evidence designed to prejudice a jury.
Then I realized that the fact that I had pled “guilty-continuance” to “domestic abuse- fear” did not show that I had struck my wife once before. There was no “common scheme” at all. In this case, it was alleged that I had struck my wife in the face. In the previous case, I had pled guilty to making my wife afraid. I had not pled guilty to striking her on that occasion. My guilty plea could not, therefore, be used to suggest I had repeated the offense. Hitting someone and making her afraid were two different things.
What had I actually admitted to doing when I pled guilty? I recalled standing before Judge Mary Vasaly on March 18, 2011, and answering certain factual questions. I also recalled that my answers to some of those questions stretched the truth. I remembered that when I had hesitated for a few moments before answering a question, the prosecutor had sternly demanded that I answer “yes or no”. I had said “yes”. Certainly, the court would not accept an argument at trial that I had lied when I gave testimony last March. But did I lie? Did I admit to either hitting my wife or intending to make her afraid of being physically injured? If not, I was in the clear. If the charges against me did not fit that statutory definition of domestic assault, the prosecution could not win a conviction.
I had long thought about requesting a copy of the transcript from Judge Vasaly’s office to read what I had actually said. Now, when I called the court office, I was referred to the Court Record Project which produces typed transcripts for a fee. I gave the case number (27-CR-11-5037) and the sentencing judge (Richard Scherer). Sue Mauer of the Court Record Project emailed me that she could produce the transcript and the cost would be under $20.
The only problem was that I needed a transcript of my appearance before Judge Vasaly, not Judge Scherer. Mauer then sent me another email proposing to produce two transcripts. The cost would be $85.00. (She later reduced the charge to $70.00.) I could pick up the transcripts on the eighth floor of the Government Center in a day or two.
I was worried that I might have admitted in court to an action for which I might be prosecuted again. At the hearing on February 6, 2012, the judge had told me that the city attorney planned to bring three different charges against me, all for the same offense. I would be charged with (1) domestic abuse - violence, (2) domestic abuse - fear, and (3) disorderly conduct.
Since I had not pled guilty to “domestic abuse - violence” in March 2011, it was doubtful that the prosecution would cite my prior arrest and conviction under that charge - actually committing violence. However, it could go after me on the charges of “domestic abuse - fear” and “disorderly conduct”, especially the former. Conviction on any of those charges was tantamount to having violated the terms of my probation. I was looking at jail time.
The transcript of proceedings before Judge Scherer shed little light on this situation. I had nothing to add when my attorney said I had pled guilty. The crux of the matter was what I had said to Judge Mary Vasaly. My interest in the earlier court proceedings in preparation for a trial on March 26, 2012, was to see if I had admitted to certain facts that amounted to domestic abuse.
I reviewed the statutes giving the definition of domestic abuse. Statute 609.2242, subdivision 1, states: “Whoever does any of the following against a family or household member as defined in section 518B.01, subdivision 2, commits an assault and is guilty of a misdemeanor: (1) commits an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflicts or attempts to inflict bodily harm upon another.”
I had pled guilty to domestic abuse - fear, which is the first situation described in the statute. My plea indicated that I had committed an act - I had grabbed a checkbook - “with intent to cause fear in another of immediate bodily harm or death.” Yes, I had admitted in court that my act of grabbing the checkbook caused “fear ... of immediate bodily harm.” However, I had not admitted to an intent to cause this fear. I had not, in fact, intended to cause fear in my wife when I grabbed the checkbook. All I wanted was the checkbook. If my wife was so bold as to bite me, she was not afraid of me or the physical retaliation I might undertake.
Even if my wife was afraid, my act of grabbing the checkbook did not rise to the level of of domestic abuse. I had ill-advisedly pled guilty to that charge on March 18, 2011. While I did not dispute the justice of being sentenced according to that plea, I did deny that it could legitimately set a precedent for another such charge of domestic abuse a year later. Just because my wife was afraid does not amount to domestic abuse. As state statute is written, the state needed to prove I intended that she be afraid.
In the report prepared by the probation department after my hearing before Judge Vasaly, the evaluation summary states: “She (my wife) further reported that she does not think the defendant is a bad person or that he deliberately wanted to hurt her. She stated that she misses the defendant and loves him and wants him to come home asap.”
That statement could not be allowed to stand. Therefore, the report further stated: “During clarification regarding her allegations the defendant punched her, she admitted that he may have intentionally tried to hurt her but that she does not know because ‘it happened so fast.’” The prosecution did, however, know. The facts had to be made to fit the theory under which I was prosecuted.
I prepared my own list of documents that would be submitted at trial and sent it to the county attorney. Among other things, I submitted a color photograph of me sitting on a sofa next to a small table on which the land-line telephone sat. One hand was on the phone and the other on papers placed on my lap. The photograph showed the cordless phone sitting on its perch above the soft. A jury would understand the layout of the “crime scene”: I was seated while talking to the 911 operator on the land-line phone as my wife, standing in the door way, reached for the cordless phone behind me.
The city attorney’s office had also sent me a document titled “Case History Summary” among the items that it intended to use at trial. The two Domestic Abuse cases and the divorce proceedings were included in the list. So was an incident in June, 2009, when I was stopped in Lakeville, Minnesota, and was unable to show the officer proof of insurance. Once home, I had mailed a copy of my insurance policy to Lakeville and the case was dismissed.
Strangely, my case history also included an arrest for Driving While Intoxicated (DWI) on April 28, 1999, and an arrest for Careless Driving on the same date. I recalled neither incident. Doing a search of Minnesota court cases, I discovered that both events involved a man having the same first and last name and the same middle initial as myself who was born eight years later. His date of birth was September 8, 1949; I was born in 1941. The man arrested in 1999 was also a resident of Aberdeen, South Dakota. I have never set foot in that town.
I asked the city attorney’s office to send me further information about this part of my record and was told not to worry. It could not be entered into evidence because the arrest happened in another county. It was a good thing for them that this issue was clarified prior to the trial.
As far as my own discovery requests were concerned, the city attorney’s office had sent nothing. I asked for a sound recording of the complaint which my wife made against me at the police station and was told that the recording did not exist. It was not mentioned in the police records. I asked for a copy of the Minneapolis Police Department’s policies and procedures for Domestic Abuse arrests and was told that I would have to request this from the police department. I asked for a copy of the report on March 25, 2011, containing an interview with my wife and was told that my request was not sufficiently specific. Finally, there was the alleged DWI in 1999.
On the bright side, I was finally able to view the Squad Video taken of my statement in the squad car when I was driven to jail on January 23, 2012. It was on a compact disk that could not be played on a CD player. Since I own a Mac computer, it could not be played on my machine either. Neither could it be played on the PC at the neighborhood library. Fortunately, I was eventually able to play the disk on a DVD player.
The video portion showed the road ahead as the squad car made its way to the downtown jail. The audio portion consisted of my statement. I wanted mainly to be sure that I had told the officers about my having placed a 911 call earlier in the day. I had. There was no excuse for this fact being omitted from the police report. The Squad Video could be entered into evidence at the trial on March 26th.
Having violated the terms of probation, I was now back to a routine of checking in with Lauren Banchy, my probation officer, every three weeks. I had an appointment on Tuesday, February 14th (Valentine’s Day) and another one on Thursday, March 8th.
The Thursday appointment threw me since all previous appointments had been on Tuesdays. I appeared on Tuesday, March 6th, but Ms. Banchy generously allowed me to fulfill my obligation on this substitute date. I told her of my intention to proceed to trial. If I was convicted, she said that I was looking at a 90-day sentence in the work house of which I would probably serve 60 days. If I was found innocent, I would be free. In either case, however, I would have another meeting with her after the trial.
My concern was that, assuming that I was found innocent, I be allowed to travel to Pennsylvania immediately after the trial. My father’s 100th birthday was on March 28, 2012. The trial was two days earlier. As I had done on my mother’s 100th birthday the previous August, I wanted to be at my father’s gravesite in Milford, Pennsylvania, on the day of this important anniversary to place some flowers on his grave.
Lauren Banchy kindly accommodated my request. She set my next appointment for 4:00 p.m. on March 26th, the day of the trial. Unless I was found guilty, I would then have time to catch the Greyhound bus at the Minneapolis station that evening and, hopefully, be in Milford by March 28th.
As it happened, I could not have reached Milford by March 28th had my case gone to trial. Leaving Minneapolis after 4:00 p.m. on Monday, March 26th, and passing through New York City, I would have arrived in Milford after midnight on March 29th. However, my case did not go to trial.
the end mercifully comes
My friend, Jim Swartwood, had recommended that I purchase a copy of a book on “Minnesota Rules of Court” procedure. When I hesitated at its $90 purchase price at the William Mitchell School of Law bookstore, Swartwood loaned me his copy from 1997. Some laws may have changed but I could check the Internet for that. The book itself was nearly 1,100 pages. What I needed to know about the rules of criminal procedure was contained between pages 98 and 218.
After sifting through the initial pages, I realized my case was already past the phases of arrest and my first appearance before the judge (which was in prisoner’s garb). I was also past the “Omnibus Hearing”, which was my appearance before Judge Bartomei on February 6th, when I pled not guilty and asked for a trial. This was also known as the “Preconference Hearing.” No, the remaining phases in this case were discovery of evidence and the trial itself.
With respect to discovery, the prosecution had an obligation to inform me of the documents and witnesses that it intended to produce at trial, especially if it would include “Other Offenses” to prove its case. Jennifer Saunders’ letter of March 3rd had told me what I was up against. However, I also had an obligation to make certain disclosures to the prosecution. In particular, I had an obligation to disclose arguments or issues that I would raise at trial other than those relating to my defense against the assault charge itself.
In that spirit, I wrote Ms. Saunders a letter on March 15th that included the following:
“At the trial, I will assert that there was no probable cause to arrest me.
I will object to introducing into evidence photographs taken of my wife a year ago on the grounds that they unfairly prejudice the jury.
I will argue that the prosecution arguments regarding prior acts conduct should be dismissed in their entirety. I pled guilty to domestic abuse - fear, not domestic abuse - harm which is alleged in this case. Moreover, my admission of guilt did not include an admission of intent to produce fear. I have the court transcript. There is no “common scheme”. Intent is hard to prove if the latest alleged assault did not happen.
I will also argue that bringing me on charges of domestic assault are a diversionary tactic to cover up the fact that the Minneapolis police and prosecution failed to arrest or charge my wife for interfering with a 911 call, which under state statute is a gross misdemeanor. There may be gender bias in such a decision.”
Additionally, I requested “a few more pieces of information” including identification of the person who took my wife’s statement alleging that I had assaulted her, a copy of the “City Attorney’s Domestic Assault Pretrial Victim Input form” taken in March 2011. I wanted “any and all documents signed by a judge or police officer indicating probable cause for arresting me on January 23, 2012.” Also, I requested the assistance of her office in obtaining a copy of Minneapolis police policy regarding arrests for domestic assault from the police since they seemed reluctant to comply with my request. “Court rules require you to assist me in obtaining pertinent information from other government agencies,” I noted.
I googled several phrases relating to police policies for Domestic Assault arrests and found a site related to the Minneapolis Domestic Violence Coordinating Team. This was a committee that promulgated “Goals and Measures Relating to the Adoption of the Minneapolis Pledge to Reduce Domestic Violence”. The Minneapolis Police Department promised to improve training in domestic-violence cases for officers, develop check lists, and encourage photographs to be taken.
What caught my eye, however, was the goal of the Minneapolis City Attorney to “review 100% of cases for gross misdemeanor and felony charging” and “increase the conviction rate on domestic violence cases to 60%”. In other words, no matter how innocent or guilty were the persons accused of domestic violence, the city attorney would seriously consider prosecuting all cases and had set a goal of convicting at least sixty percent of the persons charged with this crime. Didn’t facts matter?
After reading the transcript of my appearance before Judge Vasaly, I worried that I might have signed a confession to having intended to cause fear of imminent bodily harm in my wife in either of the two documents that I had signed earlier: the “Petition to Enter a Plea of Guilty in a Misdemeanor Case” and “Domestic Violence Supplemental Petition to Enter a Plea of Guilty”. I had not received a copy of either document. Copies were available, I learned, at the Public Safety Facility where I had appeared in court to make my “guilty-continuance” pleas in March 2011.
A second concern arose when I read the section in “Minnesota Rules of Court” regarding subpoenas. Rule 22.01 Subd. 3 states: “A subpoena shall not be issued at the request of a defendant not represented by counsel without an order of court authorizing its issuance.” I was an unrepresented defendant who had served subpoenas upon Minneapolis police officers Scott J. Dahlquist and Jeffrey B. Waite, the officers who had responded to my 911 call on January 23rd. If I read this rule correctly, they could simply refuse to respond to my subpoena because no judge had approved it. Without their first-hand testimony, it was possible that a court would not admit into evidence the fact that I had called 911 before my wife made her complaint against me.
I called the telephone number of Hennepin County court administration to ask how I could order the plea forms and have a judge approve subpoenas. I must have given the court file case number for my arrest and conviction in 2011 because the clerk informed me that I would not be going to trial on March 26th. Instead, it would be a hearing about my probation violation. I could not subpoena witnesses for such hearings. If I wanted further information, I should contact my probation officer. I then placed a call to Lauren Banchy. She was not in. I left a message on her answering machine.
It was time to make another trip downtown on Friday, March 16, 2012. I went first to the self-help desk at the Hennepin County Government Center to ask the procedure for requesting that a judge approve my subpoena of the two officers. The woman behind the counter was upset that I was representing myself in a gross misdemeanor case. This was foolhardy, she said. How much did I really know about the law? I would be up against professionals who meant me no good. I really needed an attorney’s services to navigate the court system. Otherwise, I would be crushed.
Defiantly, I said if the state wished to convict me on totally false charges, there was little I could do. I would resign myself to being another of the state’s victims. She shook her head in disgust. This woman probably meant well but I was equally set upon representing myself. If I was convicted and sentenced to 90 days in the work house, it would be an interesting experience at this stage of my life. Hopefully, I would be found innocent.
In that spirit, I went to the counter for criminal cases on the first floor of the government center. It took awhile but I was then given two more forms to subpoena the officers. When I mentioned the requirement that a judge approve the subpoenas, the clerk said that was not necessary because printed signatures already appeared on the form. The signature of the court administrator, Mark S. Thompson, as well as the signature of his deputy, Kate Fogarty, were indeed printed on the subpoena forms.
However, I did not want to leave anything to chance. I learned that a signing judge would be in the chambers on the eight floor of the Government Center between 1:30 and 4:30 p.m. It was nearly 1:30 p.m. After passing through the metal detectors, I took the elevator up to the eighth floor. A dozen or so people were waiting to see the judge. A court employee told me that the traffic would be considerably lighter in the mid afternoon.
Therefore, changing plans, I walked a block or so to the Family Justice Center where I could order copies of the two documents introduced in court when I had pled guilty to the domestic-abuse charges on March 18, 2011. These were available for $8.00 apiece. I gladly paid the fee and then studied the documents.
Had I pled guilty to intending to induce fear? Fortunately, my statement had not gone that far. Attorney Olson had printed on the form that I understood the charge against me, which was “5th degree domestic assault”, in violation of “MSA 609.2242.1. The form also said that I was pleading guilty because on “2/18/2011”, within the City of “Minneapolis”, Hennepin County, I did the following: “I got into an argument with my wife over a checkbook and she was afraid of being injured.”
There it was. I had pled guilty to making my wife afraid of being injured” after having an argument over a checkbook. In truth, she was afraid that her accusations against me might break up our marriage rather than being injured. but I had signed the statement. I had admitted to making my wife afraid of physical injury. However, I did not admit to having intended to do that.
Minnesota statute 609.2242, Subd. 1 defines domestic assault as having committed an act “with intent to cause fear in another of immediate bodily harm or death.” Yes, I had signed a statement saying that I understood the charges against me including a violation of MSA 606.2242.1 but, being a layman, I could not have known that this statute (which I had not examined before signing the statement) implied “intent” to cause fear. Therefore, I had not incriminated myself with this signed statement any more than I had done in my oral pleadings before the court. I had not offered false testimony in denying now that I had intended to cause fear.
I walked back to the Government Center and returned to the eighth floor. The signing judge was Lynn C. Olson, the same judge who had denied my application for a restraining order against my wife. But this no longer mattered. Judge Olson was a pleasant woman who seemed unaware that unrepresented defendants needed to have a judge approve subpoenas of witnesses at trial. Evidently the situation seldom arose. Maybe the court clerks were correct in claiming that the printed signatures on the form would suffice. However, observing that maybe some “sharp attorney” might object to the subpoena at trial, the judge signed and stamped my forms.
I was planning to have my former wife again serve the subpoenas upon the officers at the 4th precinct police station but she did not have her drivers license with her. We postponed this task to the following week.
Monday morning, March 19th, around 8:30 a.m., the telephone in my bedroom rang. It was Lauren Banchy. She apologized for not having answered my call from the previous week. Then she dropped the news.
The prosecuting attorney was dismissing the charges against me. That decision had been reached last Friday. Furthermore, since I had not pled guilty to a probation violation that charge was being dismissed as well. There was a technical term for that procedure that needed to be followed. However, the prosecutor would move in court to dismiss the domestic assault charges. I did not need to appear in court. I also did not need to meet with her again. My year of probation had nearly ended. I thanked Lauren and breathed a sigh of relief.
Two days later, a letter arrived in the mail from Jennifer Saunders. The letter, dated March 16, 2012, read:
“ Dear Mr. McGaughey:
I am dismissing the above entitled charges (domestic assault) against you. Enclosed is a copy of the notice of dismissal to the court that will be filed on March 19, 2012. I have also informed the judge that I am dismissing the case. There is no need for you to appear in court on March 26, 2012, as the trial will be cancelled upon my dismissal.
Jennifer A. Saunders
Assistant Minneapolis City Attorney”
It was my guess that my wife, now living in northern Virginia, was not making herself available as a witness at trial. I had not seen her for seven weeks and was legally prevented from communicating with her, directly or indirectly, in any way. Now all that nonsense would end. It was a new day.
is it really over?
I had reason to be hopeful but not to relax completely. When I returned from Pennsylvania after visiting my parents’ grave, a letter containing referee Susan Cochrane’s order regarding temporary maintenance in the divorce case was waiting in the mail. The order, dated March 28, 2012 (coincidentally, my father’s 100th birthday), included these provisions:
“ 3. Husband shall abide by the Domestic Abuse No Contact Order issued in Hennepin County Criminal Court.
Husband shall not be permitted to enter into the Wife’s residence at any time, or at any address.”
Had the Divorce Court referee not heard that the charges against me in the assault case had been dismissed; or did this matter any more? Perhaps the legal situation was more complicated than I had imagined.
It seemed to me that dismissing the case was tantamount to being found innocent of the assault charges. I was innocent not only of the totally false charge of assaulting my wife on January 23, 2012, but also of the charge to which I had pled guilty-continuance in March 2011. The condition was that, If no similar incident occurred within a year, the state would dismiss the earlier charges. The state’s dismissal of the charge on March 19, 2012 meant that I had not violated the terms of probation within a year’s period.
Therefore, those charges were also dismissed. Yet, here was a Divorce Court judge continuing to treat me as if I might be guilty of Domestic Abuse even though my innocence had legally been established. Or had it been, really? I wrote the judge a letter informing her that the assault charge had been dismissed, adding that I would not necessarily object if the no-contact order remained in effect. The referee, on a medical leave in the month of April, made no reply.
The matter of contacting my wife was moot; I had not seen her or spoken with her since January. After the prosecutor dropped the charges but before I received Referee Cochrane’s order, I had, however, talked briefly with my wife on the telephone. She was mainly concerned with my giving her money. It seemed to me that, whatever my legal situation, I was still living in a zone of moral uncertainty in which I remained under of cloud of suspicion regarding the accusation of assault. Maybe people thought I was the type of person who beat women. Maybe people suspected I might have gotten off on a technicality or the prosecutor had bigger fish than me to fry and so the charges were dismissed. Innocence was a different thing.
One of the few persons within the system who would give me a straight answer was Lauren Banchy, my probation officer. I telephoned her on April 17 to clarify my legal status. Did the prosecutor’s dismissal of the assault charges mean that the state was also dismissing the charge that I had violated the terms of probation? If so, had a judge or another official signed an order to that effect? Also, if the assault charges were dismissed, had a judge lifted the no-contact order issued when I was released from jail?
Lauren took a minute or two to check the records. Then she told me that there was no paperwork documenting that the charge of probation violation had been dropped or that the no-contact order had been lifted. However, this information was entered into their system after the assault charge was dismissed.
Therefore, the probation department knew - but did others? My wife’s divorce attorney continued to use my arrest on January 23rd as evidence of my violent tendencies. For example, she argued at our divorce on May 8, 2012, that their side was late in doing discovery because my wife was afraid to approach me with requests, me being the type of person that I was. I promptly introduced into evidence a copy of the prosecutor’s motion to dismiss the assault charges. The judge commented that this did not prove my innocence; it only showed that there was insufficient evidence to proceed to trial.
Testimony of the sort that I am giving now is not always welcome. Metaphorically, I experienced this truth when a left-leaning radio program called “Truth to Tell” aired a show on May 14th titled “Family Violence: Terror at home for too many”. Program guests included the usual group of social workers and victim’s advocates. I emailed the host of the program disclosing that I had twice been arrested for domestic assault and I thought the other side should have a voice in this discussion. The host promised that if I phoned in to the show, my call would be put through and I would have a chance to express my opinions on air.
I did phone in and waited for my turn to speak. Evidently, the host had already mentioned me by name on the air as someone who was accused of beating women and had a web site about it. Finally, it was my turn. I began to speak. Then - I kid you not - right at this moment, there was a loud screeching sound on the phone that would not go away. When I switched from the cordless to the land-line phone, the screeching sound remained. Finally, I hung up. I then tried calling the program number again but no one answered.
Next day, the program host emailed me to explain that there had been an equipment malfunction. One of the guests was on a telephone that could barely be heard so the technician had turned up the amps. The system then blew when I came on the line. I believe this particular event was an honest accident but it is also emblematic of how the topic of domestic assault is handled in polite company.
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The charges which Judge Scherer issued against me on April 25, 2011 were not dismissed until July 9, 2012. The plea of guilty-continuance to which I had agreed on March 18, 2011, was based on the understanding that they would be dropped a year later if there was no similar offense. However, my wife's false accusation in January 2012 negated that condition. When the prosecutor dismissed the second set of charges on March 19, 2012, the violation went away. The first set of charges might have been dismissed on March 25, 2012 - a year later than Judge Scherer's sentencing, but it does not automatically happen.
When I checked in June, a court employee told me that they normally wait 90 days after the expiration date to make sure there are no complications regarding probation. The 90-day period was up on June 25, 2012. A sympathetic person with the Public Defender's office who had read this narrative sent me an email on July 3rd to the effect that my original sentencing was a "stay of adjudication", not a dismissal. I was entitled to dismissal and should make sure now that the court granted it. On July 9th, I called the court office. The matter was handled on the same day.
No judge signed an order dismissing the first case. Instead, it was an administrative entry to the record which read:
" Amended Disposition (Judicial officer: Scherer, Richard S.) Reason: Court Order
1. Domestic Assault - Misdemeanor - Commits Act with Intent to Cause Fear of Immediate Bodily Harm or Death
Dismissed, conditions met"
Commits Act with Intent to Cause Fear of Immediate Bodily Harm or Death? Not quite. All I wanted was my checkbook back.
See also Condensed Version of this narrative which focuses on the legal issues and procedures related to domestic abuse.
See "A Civic Obligation". to: resources for those falsely accused of domestic violenceto: main page to: legalchallenges
Click for a translation into:
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