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Greg Hardy Case, and Why We Need a Better Way to Prosecute Domestic Abuse

posted on Nov 10, 2015

You and I saw the stories. Dallas defensive end Greg Hardy’s girlfriend had ditched out on prosecutors  so that, even though he had already been convicted of beating her, the court tossed out the case against him on appeal, and he walked. We saw later that Cowboys owner Jerry Jones said maybe it means he’s innocent, as in didn’t do it.

And you and I knew exactly what all of that really meant. At the end of last week when Deadspin published photos of Holder’s injuries, you and I shared a deeply dirty sense that, yeah, we knew it. We knew why. And nothing can be done.

But that’s wrong. Something can be done. We must operate on the assumption that something can be done. If we haven’t figured out how yet, we just need to keep figuring.

Remember: Hardy was tried and convicted of savagely beating his girlfriend, Holder. The conviction went away — it was eventually expunged — only after Hardy appealed his conviction and Holder disappeared, making herself unavailable to assist the prosecutor in Mecklenburg County, North Carolina, in the appeal.

The DA told the appeals court that one thing had changed since the original trial: Hardy had reached a civil settlement with Holder.

But money is far from the only thing that turns victims of abuse into staunch defenders of their own tormentors. First may be fear of even worse violence. But according a 2010 article published by the Texas District and County Attorneys Association,  victims of domestic violence may also have any number of other reasons for not helping prosecutors — finding safe affordable housing, providing for children, cultural or religious beliefs, separation from extended family, general lack of social services, even taking care of pets.

The same article points to other more profound and tragic reasons why victims may not be willing to assist prosecutors — a range of psychological effects reminiscent of Stockholm Syndrome in which a victim’s utter helplessness warps into a sense of personal worthlessness and even into an obedient loyalty to the tormentor.

But that’s what I mean about what you and I already knew. We hear about cases in which women have declined to help prosecute the men who beat them or may even have appeared pleading for charges to be dropped, and we know exactly what’s going on. The question is whether a woman’s failure or refusal to help prosecute has to be an automatic get-out-of-jail-free card for the man who beat her up.

In fact it is not an automatic walk for the woman-beater in Texas, and no good defense lawyer would tell a client that it is. But it’s also not a simple matter.

Before 2004, a number of jurisdictions in the United States were having luck with so-called “victimless prosecutions” in which prosecutors proceeded against accused abusers even when the victim chose not to be a part of the prosecution. The motivation for it was that same dirty little secret you and I share — that a woman-beater is exactly the guy who will know how to intimidate a woman from testifying.

Somewhere in the pit of our stomachs we know it can’t be right to let a serial intimidator get away with it because he’s good at intimidation. And by the way, speaking generally and without reference to any specific case, getting a woman to take money for her injuries sure seems like part and parcel of the violence itself to me.

But in 2004 in a case called Crawford v. Washington, the U.S. Supreme Court ruled that no jurisdiction can simply erase a defendant’s right to confront and cross-examine an accuser. Justice Antonin Scalia, writing for the majority, warned that profound dangers to liberty lurk in the concept of allowing prosecutors to introduce evidence, for example, “testimonial statements” made to police at the time of an incident or arrest, that cannot be confronted, cross-examined or otherwise tested in court according to the rules of evidence.

The whole history of Anglo-American law, he said, assumes that any evidence brought to the courtroom is there to be vigorously tested. Let the prosecutors start bringing in canned evidence from somewhere else, testimony that can’t be cross-examined, and everybody’s right to a strong defense against any kind of charge takes a hit.

But there are other ways to skin the cat. In addition to a woman’s own testimony, other evidence might sway a jury or judge, as those Deadspin photos must have done in the original trial. In California before the Crawford decision,  prosecutors and police departments were already arming police with cameras and telling them what to look for.

A woman can be subpoenaed to testify against her will as an adverse witness. Prosecutors reading this may already be snickering, thinking, “How do you propose we win a case like that?”

But what if you were on that jury? Or I? Wouldn’t we get it?

Messina Madson, first assistant to Dallas County District Attorney Susan Hawk, says the problem of reluctant victim witnesses is “a huge problem in domestic abuse.” But, she says, the Dallas County DA aggressively pursues other evidence — 911 calls and so-called “excited utterances,” for example — that are not dependent on the victim’s testimony and have been deemed admissible under more recent court decisions.

Stephanie Fargo, chief prosecutor over the Dallas DA’s domestic abuse section, says prosecutor's sometimes do subpoena a reluctant witness, but she called it a difficult judgement call because the only way to enforce the subpoena may be an arrest warrant, and, “We don’t want to re-victimize the victim.”

It doesn’t kill me that Jerry Jones says the reversal of Hardy’s conviction means he could be innocent. I think I’ve probably made arguments like that about reversed convictions. That’s why they call it reversed.

But in general, we all know what goes on in domestic abuse cases. The woman gets it bad enough to make her call the cops, which is probably worse than she’s already been getting it for a long time. And then later she chickens out. Gives up on the system, gives up on herself. Takes the money and thinks something pretty low about herself.

And the guy gets away with it.

That is why we have to keep thinking. If the law needs tinkering, we may need to tinker. If there’s a way to get this done under existing law, we need to figure it out. We need to stop shrugging, stop feeling slimy about it and find a way to help the woman and punish the abuser. It’s out there somewhere.