Judge Apte "gets" domestic violence

Judge Alan S. Apte moved from Juvenile Court to a Criminal division in the Orange County courthouse at the beginning of the year. After watching him for the past 2 1/2 months, CourtWatch is pleased to have him here.

Judge Apte routinely asks probing questions, makes thorough explanations to the participants in his courtroom, shows compassion to victims, treats everyone professionally and with respect, and exhibits a good understanding of the dynamics of domestic violence.

CourtWatch monitored two hearings in the judge's courtroom related to the case of State v. Bryan Deangelo Lee last week.  Mr. Lee is charged with Aggravated Battery and Tampering w/Witness in an assault on the mother of his 2-yr old child. Defense Counsel Christina Shepherd filed a motion to set bond (defendant was still in custody), modify victim contact, and delete the GPS requirement that was imposed at his initial appearance. The State requested pretrial detention.

The defense requested a modification of victim contact in order to enable the defendant to visit with his 2-yr old child. Judge Apte asked if the defendant and the child's mother (the victim in this case) were married. They are not. He took the time to explain to the defendant that unless paternity has been legally established, the defendant has no legal right for contact with the child. CourtWatch rarely sees judges in criminal cases inform the parties about what the law allows in these situations. The motion was withdrawn.

Ms. Shepherd then requested a reasonable bond be set, and argued that the defendant could only afford a $5,000 bond. He claimed to have a job selling magazines door-to-door and in a good week, makes $500. He also said he is unable to pay his child support obligations. Judge Apte asked what he reported his income to be on the Affadavit of Indigency he completed when he requested the services of the Public Defender. He admitted he wrote $0.

The State then presented testimony from the victim's mother and sister who were fearful for the safety of the victim. They testified to injuries and property damage they've seen in the past, as well as threats made by the defendant.  The State also presented evidence that the defendant had violated his "No Contact" Order by making 267 phone calls to the victim's cell phone since his arrest on January 21, 2010.

The victim testified on behalf of the defendant and said she was not afraid of the defendant, admitted that law enforcement had been called on previous occasions and that he did hit her, and claimed that she and the defendant had never discussed her testimony. She had filed a declination of prosecution.

A 15-minute recording of one of the many jail calls was then played in court. In the call, the defendant blamed the victim for not getting him out of jail, told her to claim she hit him first, and demanded that she get get him out. He cursed and yelled at the victim during the call.

Judge Apte asked several probing questions about the defendant's history which included approximately 13 arrests (some of which were batteries on different victims).

Defense Counsel Christina Shepherd argued that the cost of GPS monitoring was burdensome and requested a $5,000 bond.

Assistant State Attorney Eric Trabin argued that there were no conditions of release that could protect the victim, and noted that the defendant's having violated the no contact order while in jail 267 times is indicative of the his likelihood of non-compliance with any conditions that the judge might impose. He requested no bond be granted.

When requesting pretrial detention of a defendant, the State has a two-pronged burden. They must demonstrate that proof is evident that the defendant committed the crime(s) for which they're charged and the presumption is great that the victim/community would not be safe if the defendant is released - no matter what restrictions might be placed upon them by the judge. Another factor the judge may consider is whether or not the defendant is a flight risk.

Judge Apte granted bond in the amount of $25,000, ordered GPS Monitoring and Home Confinement, and revoked his phone privileges at the jail. He explained that there was insufficient evidence presented at the hearing to cover the "proof evident" prong mentioned above.

Two days later, Mr. Lee was back in court on the State's Motion to Revoke Bond because he called the victim after having been admonished that "no contact" truly does mean "NO CONTACT." Judge Apte told the defendant he would be found in contempt of court and given 364 days in jail if he called her again. He also remarked that hopefully the jail would prohibit Mr. Lee from having access to a telephone since his phone privileges were revoked at the previous hearing.

Bond was revoked.

Kudos to the judge for holding this perpetrator accountable.

Kudos to the prosecutors and advocates at the State Attorney's Office who cared about protecting this victim, in spite of her initial efforts on behalf of the defendant. I'm told that she is now a "cooperative" witness for the prosecution.

Lee's trial is now scheduled for June 21, 2010.

Another Defendant Off the Hook

Once again, Judge Tim Shea let a defendant off the hook for domestic violence - not even letting the jury determine whether or not he was guilty.

Yesterday was Michael Dwayne Manning's day in court. He was charged with Aggravated Battery on a Pregnant Person for assaulting the mother of his unborn child. The victim had signed a declination of prosecution a few days after he was released from jail.

Assistant State's Attorney Eric Trabin, using a 911 tape, photos of injuries sustained, and testimony from law enforcement, demonstrated that the victim's injuries were the result of an assault by Mr. Manning on the date in question. 

The victim, however, testified that her injuries were 3-4 days old and were the result of an altercation with someone else. The victim claimed that she jumped on Mr. Manning first in an effort to prevent him from taking car keys out of her purse and leaving. She took 100% of the blame for his actions.

Testimony elicited by the State showed that, at the time of the assault, the crying victim told the 911 operator that Mr. Manning had jumped on her. The police officer testified that the victim related that Mr. Manning had choked her. The officer also testified that the victim's injuries appeared as though they had been recently inflicted - and were not several days old. The State also demonstrated that the victim is financially dependent upon Mr. Manning. Additionally, her baby is due to be delivered very soon. Mr. Trabin went to great lengths to demonstrate that the victim had made prior inconsistent statements and told the jury that they should take that into consideration when weighing her credibility.

The jury should have been allowed to deliberate on the evidence that had been presented. But they were not. After the State rested, Judge Shea granted the defense motion for Judgment of Aquittal (JOA) on the basis that the State was relying on the victim's prior inconsistent statements. From what CourtWatch saw, however, the State relied upon the victim's excited utterances (a 911 recording in addition to her statements to law enforcement) and demonstrated that the injuries were recent (using photos together with the observations of the police officer).

Judge Shea's decision to toss the case sends the message to Mr. Manning that the system is either unable or unwilling to hold him accountable for his actions in this incident. He has empowered an abuser to thumb his nose at the laws and the judicial system that is supposed to uphold them. Assistant State Attorney Trabin attempted to enforce the law in spite of the fact that the victim had declined to prosecute.

CourtWatch commends Mr. Trabin's efforts in this matter and appreciates the fact that he did what he could to hold Mr. Manning accountable to the law, in spite of the victim's lack of support.

Finally, in spite of feeling frustrated with the victim for not aiding in the prosecution of her batterer, I understand the reasons for her refusal to testify against him. Rather than criticize the victim, I think we need to criticize the System - in this case, Judge Shea - for not upholding the Law. This is the second case that CourtWatch has seen this judge toss a case when the victim refused to testify against her abuser (the first was a case that involved the discharge of a gun in the home).

PS: Mr. Manning, age 34, in spite of being acquitted of this offense, is still in custody for a drug case. In fact, a review of the Orange County Clerk's site shows numerous felony and misdemeanor charges dating back to 1992 (age 17). Most charges (20 total) are drug related or involve resisting arrest, although he has a couple of battery and weapons cases.