Domestic Violence for Professionals – Part III – Asserting Victims’ Rights to Influence Outcome
In Parts One & Two of this series, previously serialized, I introduced you to some common domestic violence charges in Arizona, and common enforcement actions, including nearly universal custodial arrest.
We then spent some time talking about custodial initial appearances at the jail, and judicially determined release conditions, particularly no contact orders. We then spoke about the Arizona Victims’ Bill of Rights, and how victims have the express rights, inter alia, to speak with both the prosecutor and separately to the Court, specifically to be heard on conditions of release both before and at initial appearance.
Today we’ll talk about how victims may also influence the final outcomes of domestic violence criminal proceedings in Arizona, particularly in relation to a putative offer of “diversion.”
The concept of “diversion” is not new. For years courts and prosecutorial agencies alike have sought to “divert” first-time and low level offenders from the maw of the criminal justice system, offering such offenders a path to eventual dismissal with prejudice of all criminal charges.
Because successful completion of diversion almost always merits dismissal, such programs, sought after, can be crucial for certain aspiring or licensed professionals. Even for the lay public at large, virtually nobody wants to have a criminal record, if it can be avoided, especially for a turpitudinous offense denominated “domestic violence.” Such conviction becomes as we know all too well, a black box question that may raise the eyebrows of a human services administrator. And at bottom, in a variety of industries, having to list a “domestic violence” conviction for almost all licensure and employment circumstances something that nobody decidedly wants to be required to do.
The Mechanics of Diversion Programs
In Pima County access to a diversion program is almost always in the sole discretion of the prosecuting agency. They are the gatekeepers. In other words, a defendant cannot unilaterally choose to join. He must be invited. When invited, the defendant is usually offered one of two distinct varieties: Pre-Plea Deferred Adjudication or Post-Conditional- Plea Diversion, both with the presumptive possibility of dismissal.
In the case of pre- plea diversionary deferrals , the matter is simply continued on the courts calendar sometimes for six months or more to allow the defendant to complete an onerous or otherwise lengthy program. For domestic violence offenders such program usually is at least 26 abuser therapy sessions in length. At the successful conclusion of such program, the prosecutor moves and the court orders all charges dismissed with prejudice.
Pre-plea deferred prosecution diversionary variety offers some advantages over post-plea: First, pre-plea programming does not require a formal admission or guilt. Second, if a person fails a pre-plea deferred adjudication diversion program, the case is simply restored to the active judicial calendar and the defendant is free to litigate, without having compromised or waived core procedural rights.
In contrast, post-plea diversion requires that the defendant first enter a conditional guilty plea, always at the outset, and then complete the post-plea program, often quite comparable in terms of onerosity and duration to the pre-plea deferred prosecution requirement. But the procedural difference is stark: If the defendant fails the post-plea diversion program, the court in such case simply enters criminal judgment of guilt against the rejected defendant. There is no trial, and no pre-trial motion practice. In short, many core procedural rights are compromised or waived with post-plea diversion programs.
Another type of discretionary diversionary program offered only to active duty military, as well as reserve and veterans, is a designated specialty court known as Veteran’s Court. Active in both Tucson City Court and Pima County Justice Court, these grant-funded programs are powerful and have high success rates. Both generally employ pre-plea prosecutorial deferrals. The Department of Veteran’s Affairs is actively involved and provides free and strong support services. For these reasons Veteran’s Court is generally speaking, highly desirable for someone who serves or has served.
The Role of the Victim in Determining Whether Diversion is Offered
This brings us back to the victim and her role. Because the victim enjoys embedded constitutional, statutory, and procedural rights to speak with the prosecutor, and separately to be heard by the Court as to the availability of diversion, it is important that the cooperative victim make her views known as early and as articulately as possible.
Prosecutorial Agencies almost always manage ancillary internal victim services bureaus, or contract with larger agencies for similar services. The victim services bureaus in prosecutor’s offices, are generally staffed by volunteers who advise, comfort, and aid victims in a wide variety of cases, including felonious matters involving serious injury or death. These volunteers are generally laudable people working for the good of the community.
However, in the case some misdemeanor domestic violence, especially for first time offenders where no injurious or other physical violence is involved, even where the victim does not want to prosecute, victim services unless affirmatively contacted, may assume given their goals, that the victim wishes to proceed to conviction.
Therefore, in the case of a cooperative victim who actively wants to avoid the defendant from having a criminal conviction, contacting Victim Services, can be a good first step. At the very least, Victim Services becomes an initial or secondary place where the victim may register her views on diversion. And at the very least it is also an opportunity to ask for a statutory meeting with the assigned prosecutor, whose identify the victim may not otherwise know. The victim may use the opportunity to ask the Victim’s Services personnel for the individual identity, email, telephone number, and mailing address of the assigned prosecutor.
Speaking with the Prosecutor
Since the victim has the express right to speak with a prosecutor before a prosecutorial decision on diversion is made, early and advocative initiated contact with a prosecutor may be outcome determinative.
In short, if a victim makes clear to a prosecutor that she absolutely wants the defendant to be offered diversion, the prosecutor must take that into account. Mind you, a prosecutor doesn’t have to automatically heed a victim’s demands. And certain common demands, such as “dismiss this case now” are often not heeded, especially at the outset.
Yet, there should be few principled circumstances where a fair-minded prosecutor, required by law to consider victim wishes about diversion, completely demurs to a victim request for diversion, particularly in a first-offense misdemeanor domestic violence matter.
Conclusion: The Victim Influences a Diversion Decision
In sum, it is incumbent upon the cooperative victim who so wishes to affirmatively advocate for diversion, to begin early, possibly before the arraignment, and certainly before the first post-arraignment status conference, to use the Victim’s Bill of Rights as a tool to affect the final outcome, particularly as to diversion..
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About Michael Harwin
Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books