My two arrests for domestic abuse - condensed version
by William McGaughey
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I have twice been arrested and prosecuted for domestic assault. There is a full-length narrative of this experience written in English and posted at http://www.billmcgaughey.com/domesticabuse.html.
This is a shorter version of that narrative focused on the legal process. As in the other narrative, most of the names have been changed. The state of Minnesota in the United States, where my story takes place, may be politically attuned to this issue more than other places but it is by no means unique. Domestic abuse is a hot-button issue politically. Sheila Wellstone, wife of the late U.S. Senator Paul Wellstone, made it her signature issue. The current vice president, Joe Biden, spearheaded the Violence Against Women Act of 1994 when he was in the U.S. Senate.
Stereotypically, domestic abuse means a situation where a husband or male partner physically has assaulted a wife or female person in the household. It is alleged that formerly husbands could assault their wives with impunity, but now such behavior is considered a crime like other violent assaults. This type of violence and its prosecution by law enforcement is supposed to be gender-neutral, but, in fact, it is very much a “woman’s issue”. The lopsided approach to prosecution, favoring the woman, is supported by the law-enforcement community, including the courts. There is less interest in an impartial determination of facts which could exonerate the man.
Minnesota statute 518.01, subd. 2, states:
(a) "Domestic abuse" means the following, if committed against a family or household member by a family or household member:
(1) physical harm, bodily injury, or assault;
(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or
(3) terroristic threats, within the meaning of section 609.713, subdivision 1; criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344, 609.345, or 609.3451; or interference with an emergency call within the meaning of section 609.78, subdivision 2.
Notice that, in Minnesota, the legal definition of domestic abuse includes not only actual physical assaults, perhaps resulting in injury, but also the act of making someone afraid of being assaulted or injured. I pled guilty to the act of making my wife afraid with the understanding that the offense would be stricken from my record if no similar offense happened again within one year. This is called pleading “guilty-continuance.”
Now for the abbreviated story:
I had been married to a Chinese woman for about ten years. While she was in China for an extended period, I once had sexual relations with my former wife. This woman later told me that she was pregnant with my child. I gave her money for food, medical expenses, housing, and other purposes during the period of pregnancy. I intended to stay married to my current wife and, once the child was born, let her decide whether she would stay married to me. If so, we and my former wife would jointly raise the child. I also let my former wife, while pregnant, stay in a vacant unit in an apartment building I owned because she had lost her previous residence.
When I returned from a trip to China in December 2010, I learned that my former wife had lost the child. She was now occupying the downstairs unit in the four-plex where I lived upstairs. My current wife returned to the United States several weeks later. One day, knowing the answer, she asked me who was living downstairs. She said her main interest was knowing the truth. I therefore told her the full truth including the pregnancy and expenditure of money. Since I could not show her a live baby, my wife doubted the pregnancy, saying I had been deceived.
The month of January, 2011, was a difficult period for all concerned. My former wife had lost not only a child but also an expected job. Therefore, she could not pay rent. She began drinking. My current wife was often angry at me. She demanded that I go into greater detail about the money I had spent on my former wife. After a few such discussions, I began avoiding the subject. Meanwhile, my current wife mailed a large number of boxes containing books and other possessions to her daughter who lived in northern Virginia.
Matters came to a head in the late afternoon of Friday, February 18, 2011. I sat working at my computer. My checkbook lay on the computer table. Suddenly, my wife, who was sitting behind me, grabbed the checkbook. She asked about various entries in the check register. I asked her to return the checkbook but she refused. I rose to my feet, turned around, and took the checkbook away from my wife. She then leaned down to bite my hand. I managed to free my hand from her mouth by jerking it away suddenly. Then I put the checkbook in my pocket and walking into an adjoining room.
My wife then said she would call 911. I did not try to dissuade her. About twenty minutes later, two Minneapolis police officers arrived at our home. One was a white-male officer named Stephen Herron; and the other, an Asian female officer named Rebecca Lane. Our York terrier dog, Do Do, barked as the officers entered the front door and walked up the steps to the second floor where my wife and I lived. I put Do Do in a room near the top of the steps and closed the door so we could talk with the officers.
As I closed the door, officer Herron ordered me to put my hands behind my back. He then put handcuffs on me and, without asking any questions, led me downstairs and out to the squad car which was parked in front of our home. I sat in the narrow back seat as officer Lane in the front seat asked me routine personal questions while viewing computer screens. I said I had bite marks on my wrist but the officer would not look at them. She did, however, loosen the handcuffs that were causing a loss of circulation in my arms. This situation lasted about half an hour while officer Herron questioned my wife inside the house.
When Herron came back to the car, he read my “Miranda rights”. I chose the option of making statements in the presence of an attorney, thinking that the state would provide one. We drove for ten minutes to the detention center downtown. There most of my clothing and personal possessions were taken away. Herron photographed my wrist from a distance. I was fingerprinted and photographed and then put into holding rooms with other inmates. It turned out that the state would not provide an attorney because my income exceeded guidelines.
The longer version of this narrative describes the jail experience in some detail. For me, it was more interesting than unpleasant. But the focus here is on the experience of domestic assault from the “perpetrator’s point of view. Around midnight, as I was sleeping in a room with other inmates, I was suddenly released from jail. A friend had bailed me out.
As I left the jail, I received a yellow sheet of paper signed by Judge Mark Wernick which disclosed that my bail was $2,400, I was not allowed to commit any more crimes, I could not have direct or indirect contact with my wife except with a police escort, and I had to keep all scheduled court appearances. Since my wife lived at our home, this order meant that I could not return to my home. The outside temperature was below zero when I was released.
Fortunately, my friend who had provided bail was waiting in a van a few blocks away. He let me stay at his home in Brooklyn Center. I did eventually return to my home with a police escort to retrieve my computer, clothing, and other belongings. I spent my 70th birthday at my friend’s home, writing the narrative of what had just happened to me.
A pretrial hearing set for the morning of February 23, 2011 - five days after I had been arrested. I applied for a public defender but my application was rejected because I had too much retirement income. My case was the last to be heard that morning. Mainly, I wanted the judge to lift the no-contact order. For one thing, the city had scheduled an inspection of my home. The judge looked at the police report and then announced that he would not lift the no-contact order. The one thing I accomplished at the hearing was to receive a copy of the police report regarding my arrest.
I was shocked to read the report. Officer Herron had written: “Upon arrival V1 (my wife, the victim) 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 ... Pictures were taken of the victims injuries ... V1 was looking at the check book (that) had enraged A1 (me) 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.” The police report also claimed that I had kicked my wife and that I was visibly “angry”. The entire report consisted of lies. It also did not disclose that the officer had neglected to ask me any questions before the arrest. Presumably there was a photograph somewhere showing blood on my wife’s mouth.
One of the most damaging aspects of this arrest, I thought, was that the city of Minneapolis had scheduled a “rental-license inspection” for my home at 1702 Glenwood Avenue in Minneapolis on Monday, February 28, 2011. This meant that a city inspector, unaccompanied by me, would be walking through my house noting deficiencies that had to be corrected by a certain date to avoid fines. I scheduled another police-escorted visit to my home to retrieve certain possessions but the officer would not let me remove the most valuable item.
Four days later, a pea-green day-glo poster was attached to the front door of my house. It 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.”
What had happened was that the city inspector (associated with its “problem properties unit”) had made a list of code violations, assigned points to each, and then determined that the total number of points exceeded a limit triggering condemnation. If the city condemned the building, no one would be allowed to live in it. I could avoid condemnation by making enough repairs that the point total dropped below the limit. The problem, of course, was that I was legally forbidden to set foot on the property because of my arrest for domestic abuse. I therefore could not make the necessary repairs. However, my friend again came to my rescue. He did the repairs. Eventually, the condemnation was lifted.
Had my friend not helped me in this regard, the arrest for domestic abuse would have resulted in my losing my home. The judge knew about this but he still refused to lift the ban on visiting my home. It was a substantial punishment inflicted by the court before I even had a chance to tell my side of the story.
I was persuaded by the judge and others that I had to hire an attorney to defend me against the domestic-abuse charges. I took advantage of a low-cost initial visit with an attorney. I learned that there was little or no chance that the prosecution would drop the charges against me due to lack of evidence. They would first try to persuade me to plead guilty to a lesser charge. Unless my wife recanted, the victims’ advocates would press for the city to prosecute me to the hilt. Also, the court would be quite unlikely to lift the no-contact order. Why not? Because “there’s nothing in it” for court officials, I was told. If I assaulted my wife again, the judge would be criticized for being soft on crime.
In the meanwhile, my wife filed for divorce. I was served with papers in the second week of March while living at my friend’s house in Brooklyn Park. When I talked with my wife’s newly hired attorney, I was assured that she wanted an amicable divorce. It turned out to be anything but this. The attorney told me, however, that my wife was seriously ill; she was throwing up every day. This revelation frightened me. My own problems with domestic abuse were comparatively benign, I believed.
I received a ton of letters from attorneys offering to represent me for a fee. Eventually, I engaged the services of a man who charged $800 to $1,000 plus $500 a day if the case went to trial. My discussions with him were, again, revealing. This man claimed that lesbian feminists who cared little for a person like me ran the machinery of government in Minneapolis. He wrote nothing matters on a sheet of paper. It does not matter what are the facts of the case or what the law says. Judges do as they please. You need experienced people representing you who know these judges and know how the game is played. Someone who tries to represent himself will be regarded as a sucker. Needless to say, his sales pitch was persuasive.
Because I had first indicated that I would be representing myself, I received an email from the city attorney’s office with evidentiary materials attached. A document titled “Victims Domestic Violence Summary” again 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.”
For the first time I was able to view the photograph allegedly showing blood on the wife’s mouth. My wife looked distressed but I did not see blood. There may have been a small red spot near the mouth in one of the photos but nothing in the other two.
Now represented by a private attorney, I arrived at the Public Safety Facility in downtown Minneapolis around 8:30 a.m., as ordered. My wife and a Chinese man were seated in the back of the room. I consulted with my attorney who, in turn, had spoken with the city prosecutor. She was angry that I had written a letter to the judge giving my side of the story. Nevertheless, the city was willing to offer me 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 during that time. 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 assault in Minnesota is quite loose.
I decided to go with Option #1. I would plead guilty with the understanding that the sentence would be “continued” (not imposed) for one year. Then the charges would be dropped if nothing else happened. A big advantage for me would be that the no-contact order might be lifted without further delay. Also, my attorney had arranged that I would be pleading guilty not to actual violence but to having made my wife afraid of violence. I thought I could live with this. Yes, she probably had been afraid - maybe of doing unrepairable harm to our relationship more than violence itself.
What I did not know at the time is that, in pleading guilty-continuance, I would be required to stand before the judge and answer certain questions. Some of them required me to admit to untrue statements. I hesitated several times, answering in a vague way, only to be told: “Answer the question. Yes or no?” I also had to sign a “petition to enter a plea of guilty in a misdemeanor case”. Here again, I did not wish to admit to violence because my “violence” consisted of extracting my hand from my wife’s teeth. Neither did I admit to having “intended” to make my wife afraid; it was a sudden impulse to take back the checkbook.
The city prosecutor was not satisfied with my statement that my wife was afraid because I had grabbed the checkbook. Only when I answered “yes” to her statement, “sir, it was the manner in which you grabbed your wife’s hand to that caused her to fear imminent bodily harm” was I allowed to complete my plea. From my perspective, it was an exercise in using weasel words.
My attorney had indicated that, if I pled guilty-continuance, I might be required to attend three anger-management classes. Now it appeared that I would have to attend such classes every week for eighteen to twenty-four weeks. This was a problem for me because I was planning to go to China to be with my wife if, as it appeared, she was dying. My attorney quickly secured that this exception might be written into the requirement of unbroken attendance at anger-management classes.
Also, the judge was unwilling to lift the no-contact order until sentencing in the following week. However, my wife and her unknown companion in the back row said she was willing to have contact with me again immediately. The judge lifted the “DANCO” (domestic-abuse no-contact order) and I was free to see my wife again without police supervision. However, I would not be allowed to possess a fire arm for the next three years.
Now it was time to meet with the probation department. I would be on probation while my sentence was continued. The intake supervisor asked me a series of questions. Was I angry at anyone? Yes, I said I was angry at the arresting officer for having made false statements on the report. She said the officer had no motive to lie. Was I angry at my wife or at women in general? I denied that I had an anger problem.
Back at home later in the afternoon, I had a chance to compare notes with my wife. Was it true, as the police report said, 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 my sudden move.
My wife said there was another element which seemed important to this 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.
I later realized why this was significant. The legal definition of domestic abuse requires either an act of violence or an act of intentionally making a person afraid of violence. My “current offense” in a community-corrections report was listed as “Domestic Assault - Misdemeanor - Commits Act with intent to caus” (where the statement is cut off). Was I charged with intent to make my wife afraid of injury.
My attorney had managed to gain possession of the “confidential” section of the follow-up report, based on interviews with my wife on February 23, 2011 and March 15, 2011. It said: “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 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’. So, on one hand, I did not deliberately want to hurt my wife while, on the other, I may intentionally have tried to hurt her.” “Deliberately” means much the same thing as “intentionally”. You can almost hear the wheel of dishonest justice creaking. No wonder this report was “confidential”.
I also later looked at a report from the probation department. The “yes” box for anger had been checked. The report stated: “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.” Evidently, it did not matter what I testified regarding my anger; I had to go through a court-ordered program to deal with a problem that did not exist.
The cheapest anger-management class I could find cost $225 for twelve sessions. The prosecution cost me $200. I also had to pay $240 for the probation services that would be required. So the court was taking its cut. But I was not sentenced to prison and, again, I could live in my own home. The worst was behind me, I thought, even though I now had a record.
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All this happened in February or March of 2011. For the next ten months I dutifully complied with the requirements of the sentencing. I was not allowed to change my plea to ask for a trial instead of admitting guilt. Instead, I had to attend at least twelve sessions of an approved anger-management program and also report to a probation officer once a month. I found both experiences relatively painless. I could not change the sentencing or challenge its underlying assumptions but I could take these requirements in stride. I continued to live with my wife. Although our divorce was becoming increasingly contentious, there were no further acts of violence or threats of violence until late January 2012.
The divorce proceedings are narrated elsewhere. In some ways, they were even more dangerous and unpleasant than the arrest for domestic assault. I was well on my way to completing the requirement that no further incidents of similar kind take place within a year. I completed the twelve anger-management sessions with a record of perfect attendance. Since all seemed to be going well, I was allowed to report to the probation officer each month by telephone instead of having office visits.
Then, suddenly, on January 23, 2012, the situation changed dramatically. My status as a convicted perpetrator of domestic abuse became intertwined with the increasingly contentious divorce proceedings. A short summary of that situation would be in order.
As previously stated, my wife had filed for divorce on March 8, 2011. My wife hired a female Chinese-American attorney. I hired the man referred by the Bar Association who offered an initial consultation regarding domestic abuse. Billed $170 an hour by my attorney, I watched helplessly as the two attorneys jousted by email. The two sides first agreed to engage the services of a neutral evaluator (FENE) to review the parties’ finances as the divorce referee had ordered. Then, the other attorney suddenly claimed that neither party wanted the FENE and convinced the referee to rescind her order. The email churning continued.
The next big event was a court-ordered mediation session in October 2011. The referee ordered that both attorneys attend the potentially all-day session, bearing a minimum $1,000 price tag for me. The other attorney used this occasion as a soap box to denounce me. No serious settlement offers were made. As we left the meeting, my attorney warned me that this divorce could be quite expensive.
The trial had been set for May 2012. I wrote the referee asking that the date be moved up, copying all parties concerned. My attorney promptly dismissed himself from my case. I decided to represent myself. There were seven more months before the scheduled trial; I could handle the churning emails by myself.
My wife and I agreed on settlement terms in late October. However, my wife insisted that an attorney - hers - had to draft the agreement that would be sent to the judge. When my wife’s attorney sent me the proposed document, I found many provisions that were not in the agreement between my wife and me, including this attorney’s right to produce the final document without showing it to me. I, of course, objected. I insisted that the attorney produce a “clean” document, based on the original terms of agreement. However, the other attorney kept slipping new provisions into the settlement document that were to my disadvantage. Finally, I issued an ultimatum to the other party that I would withdraw my settlement offer unless a suitable document was produced by January 5, 2012.
I think my wife sincerely wanted to settle. However, whenever she visited her attorney, her attitude changed. Evidently, the attorney convinced her that she could get much more money from me in refusing my offer. My wife told me that the attorney had a trick up her sleeve. It came when the attorney filed a motion in court on January 5th proposing that I pay my wife $2,100 a month in temporary living expenses until the date of the trial and, significantly, a portion of my wife’s attorney fees. This attorney sent a stream of letters to the court accusing me of various offenses. I was obliged to respond to each allegation.
The hearing on the motion for temporary maintenance was scheduled for January 24, 2012. My wife became increasingly agitated. She sometimes struck me physically or threw objects at me such as the television remote. The day before the scheduled hearing was the Chinese New Year. My wife demanded that I give her money - $600 was the requested amount. I was focused on preparing for the court hearing.
As I sat in the bedroom sofa reviewing papers for the hearing on the following day, my wife suddenly lunged at me and grabbed the papers from my lap. I had had enough. I called 911 to complain of the violence. Even more agitated now, my wife took the telephone away from me, muttering that I was a “liar” who was “fighting” her. She then left the room, saying that she would visit her attorney.
In due time, two Minneapolis police officers visited our home. My wife was not there, of course. I explained what had happened. I said, however, I did not wish to exclude my wife from our home and did not even insist that a report be written. The situation appeared to have blown over. There had been no physical contact other than the scattering of papers. Then I returned to the task of reviewing documents for the court.
Later in the afternoon, I went outside to shovel the sidewalk on Glenwood Avenue. A voice called out my name. It was an officer standing next to a squad car. The officer said that my wife had accused me of hitting her and he would have to arrest me. I handed the shovel to the officer, who, in turn, handed it to my wife.
As I sat in the back seat of the squad car, the officer seemed sympathetic. 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.
The officer read me my Miranda rights. 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 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 now. Therefore, I said I did wish to give testimony. The officer then turned on a video recording device pointed at the back seat. I told what had happened earlier in the day.
After arriving at the county jail downtown, I went through the same booking procedures as a year earlier. This time, however, I spent the entire night at the detention facility and also made an appearance before the judge. Even though a no-contact order was issued, I was able to avoid being banished from my home by pointing out that the four-plex had several separate living facilities. My wife could live in one, and me in the other. We could use separate stairways to reach our living quarters. Mercifully, the judge agreed to that arrangement. Bail was arranged and I was released.
I received a copy of the police report. The Public Data section of the report said: “ 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.”
The Supplemental report issued by the arresting officer gave more details: “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/ROSE 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.”
Unlike the report from a year before, there were no false accusations. However, I was troubled by the statement that the office did not know why police had been dispatched to our home earlier in the day. I had explained the situation while being recorded by the police video as the officer drove me to the county jail. Evidently, this was a sensitive matter for the police. The report could not disclose that I had earlier called 911 to complain of my wife’s behavior. Why not?
The other interesting feature in this report was that it disclosed that an Asian female who said she was an attorney was present with my wife when she made the complaint of being struck. To me, this indicated that the attorney had coached my wife on what to say - i.e., to make a false complaint of violence. Although this was a serious offense, it was hard to prove. My wife’s testimony was given on “a language line that spoke mandarin Chinese”. No information about that line or its specific content was given in the report.
I should point out that because I was arrested and jailed for a day, I was unable to attend the hearing on temporary maintenance on January 24, 2012, before the divorce-court referee. I was sitting in jail at the time of the hearing. My friend with whom I had lived the year before tried to attend the hearing but the referee would not allow him to remain in the visitor’s section of the courtroom. She also refused to postpone the hearing so I could attend because the other attorney complained of the expense in arranging for translators and other team members to attend. However, this friend did receive a brief from the other attorney. He was told that I had 48 hours to respond. But my friend was unsure whether I should respond to the document he was given or to something else.
Back at home, in my own separate unit, I prepared a response to the document that my friend had given me. I did a thorough job. Then, on the following day I attempted to contact the referee’s office to clarify the situation. Generally, it is necessary to go to the courthouse itself and use one of the telephone lines in the downstairs lobby. I wanted to ask the referee’s clerk about the hearing and what I was supposed to do. The clerk was busy. I was asked to take a seat outside the court chambers. A short time later, my friend and I were invited into the chambers themselves to meet with the referee herself.
This conference, sandwiched into the referee’s schedule, lasted about 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 attorney Wong Sun’s brief. If I wanted to know 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 cut me off. Shortly thereafter she ended our meeting.
What the other party and the referee did not know is that I had already done most of the work in responding to its brief. There would be no need for a transcript to be rushed. I soon completed my work. My friend served the papers both on the other attorney and the court. This prompted another exchange of papers, and then another. On March 30, 2012, the referee issued her order. Citing the fact that the trial date was near, it basically kept the living situation unchanged.
In the meanwhile, I was facing a potentially dangerous situation on the domestic-abuse front. Naively, I had assumed that I could stay out of trouble for a year. I had refrained from responding to my wife’s minor acts of violence. However, I had not anticipated another incident based entirely upon lies. A second offense of domestic violence is more serious than a first offense. It jumps from a misdemeanor to a gross misdemeanor. In this case, I was accused not only of another act of violence but also of violating the conditions of my probation.
My first thought was to gather evidence that it was I, rather than my wife, who had dialed 911 to complain of violence. How foolish was I not to insist that a report be written. Fortunately, an Incident Detail Report had been written about my earlier 911 call. It stated: “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 term “money/aslt” troubled me, especially “aslt”, which I took to mean that my wife had accused me of assaulting me in her statement to the 911 operator. But, at least, there was a record of the earlier incident, however.
I wanted the arresting officer to issue an amended report indicating that officers had visited my home earlier in the day because I had called 911 to complain of violence. I called the 4th precinct police station several times trying to reach the officer. He would not return my calls. Then I wrote a letter to the police chief to request the amended report. I received a letter from an internal-affairs investigator who, without giving reasons, stated that the report would not be amended.
I later realized that the police were protecting themselves. In grabbing the phone from me during an emergency (911) call, my wife was committing a gross misdemeanor under Minnesota statute 518.01, subd. 2, (3). Not only had the Minneapolis police declined to arrest my wife for this offense, they had instead arrested me.
After being released from jail, I took the precaution of seeking a restraining order against my wife. I visited the Domestic Abuse Center near the basement of City Hall. A female employee at the Center seemed relatively sympathetic. I filled out a form listing some of the more violent incidents, including a death threat. However, the signing judge refused to grant my request for a restraining order. I had failed to “allege sufficient facts to constituted domestic abuse as defined by statute.” Later, I was told those facts might have been provided by the police report I had declined to pursue.
I was also trying to obtain a written statement of Minneapolis policy policies relating to arrests for domestic abuse. Some told me I would have to go to the 4th precinct police station to obtain them. Others said this information would have to come from the city attorney’s office. The Domestic Abuse Service center did not have a copy.
I spent a few days in late January trying to obtain evidence from the city which I could use in my defense. This time, there were no photographs. I did obtain the Incident Report about the 911 call earlier in the day. I also obtained a CD that contained my recorded 911 call. (The reference to “assault” might have come from my wife’s statement that I was “fighting” her. Yes, our arguing might have been construed as “fighting”, but it was not an assault.) The city records clerk refused to give me the “non-public statement” associated with the incident report. Also, the recording of the complaint that my wife made against me at the police station on the language line was unavailable. At least, I could find little information about it.
The pre-conference hearing on my second arrest for domestic abuse was scheduled for the morning of February 6, 2012. I naively hoped that the prosecution would drop the case, assuming that it knew what I knew. My probation officer and a representative of the City Attorney’s office appeared in court with me. The prosecutor said she was prepared to offer me either of 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. 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 minus 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. By this time, I was no longer terrified at the prospect of representing myself in court. I had done so with the divorce proceedings. The judge before whom I appeared set the date of trial and sternly advised me to hire an attorney. When I said the last one (in hindsight) had given me bad advice, he recommended finding another attorney.
This judge 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 was descending into legal gamesmanship and might require an attorney’s assistance to survive. Yet, I was financially so stressed that I postponed indefinitely hiring a professional to represent me. Compared with what I had been through between this and experiences in divorce court, a jail sentence did not seem so bad.
Since I was representing myself, I was entitled to see the prosecution’s evidence against me and learn its conviction strategy during the discovery process. The Domestic Assault Pretrial Victim Input Form, prepared 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 was not mentioned.) 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 in which 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 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.”
Back in March 2011, my attorney 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 had lied in the police report. I was grateful to my wife then for being honest. This time there was no such honesty. The only good thing from my standpoint 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.
A yellow sheet, “Hennepin County Pre-Trial Evaluation”, provided 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 of the four-plex, our separate residences, each 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 have been pointless since my wife was then 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”. In reality, I had no physical contact with her in the incident on January 23rd.
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 that 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 my 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 which I would be relatively unprepared to address. 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 legal provision 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 want to 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 had a tendency to punch women on their 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 an important 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 prove 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.
I needed more information about my actual pleading on March 15, 2011. The Court Record Project produces transcripts for a fee. For $20, I obtained a copy of my sentencing session; and for another $65, a transcript before a judge where I had pled guilty-continuance. 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. However, it could go after me on the charges of “domestic abuse - fear” and “disorderly conduct”, especially the former, even though its case was weakened by failure to nail down “intent”. Conviction on either of those charges was tantamount to having violated the terms of my probation. I was looking at jail time.
The city attorney’s office had 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 at that time to show the officer proof of insurance.
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. 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. 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.
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.
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. 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 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.
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 to interrupt the call.
A business associate had recommended that I purchase a copy of a book on “Minnesota Rules of Court” procedure. When I hesitated at its $90 purchase price, this man loaned me his copy from 1997. 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 (in prisoner’s garb). I was also past the “Omnibus Hearing”, which was my appearance before a judge on February 6th, when I pled not guilty and asked for a trial. This was also known as the “Pre-conference 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. The city attorney’s 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 vein, I wrote the prosecutor 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”. What caught my eye 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. This was like speed traps rather than justice. 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.
Preparing for trial I wanted to subpoena not only the arresting officers but also the officers who had responded to my 911 call on January 23, 2012. 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 needed to have a judge approve the subpoenas.
I went first to the self-help desk at the Hennepin County Government Center to ask about procedures. 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.
To make a long story short, I was not crushed. The city never took this case to trial. Monday morning, March 19th, around 8:30 a.m., the telephone in my bedroom rang. It was my probation officer. 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 the probation officer and breathed a sigh of relief.
Two days later, a letter arrived in the mail from the assistant city attorney handling my case. 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, presumably, all the nonsense would end. Hurriedly, I drove to northeastern Pennsylvania for a graveside commemoration of my late father’s 100th birthday on March 28, 2012.
**** *** **** *** **** *** **** *** **** *** **** *** **** *** **** *** **** *** **** *** ****
The nonsense, however, was not completely ended. Waiting for me when I returned to Minnesota after the trip to Pennsylvania was the divorce-court referee’s order dated March 28, 2012 (my father’s birthday) reminding me of the following 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.”
What? 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 was 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.
One of the few persons in the system who would give me a straight answer was 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?
The probation officer 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.
As a result of having published this narrative, I later learned that I might have to contact the court to make the charges go away even if the city would not prosecute them. In June 2012, someone told me that courts normally wait 90 days before dismissing such charges to make sure that 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
Domestic Assault - Misdemeanor - Commits Act with Intent to Cause Fear of Immediate Bodily Harm or Death
Dismissed, conditions met"
But my arrests for domestic abuse came back to haunt me in other ways. Don’t forget that I was also facing a difficult divorce case. Now that the legal battle over domestic abuse had ended, my wife’s attorney was more than eager to use my arrests to her advantage in those proceedings.
There had been a lull in divorce-court activity during March, when I was preoccupied with the assault charges. The month of April saw greatly intensified activity with respect to the divorce. Part of my wife’s attorney’s strategy was to shift her fees to me. Another part was to use my new-found reputation for violence to their advantage during the discovery process.
This complicated game of legal warfare was played on many fronts. In addition to the excessively numerous and detailed questions in my wife’s interrogatories which violated Rule 33.01(a) of the Minnesota Rules of Civil Procedure, there was an effort to complicate the process by claiming that my wife and her attorney could not do proper discovery because they feared for their personal safety. After all, I was a self-confessed perpetrator of domestic abuse. Court rules prescribed that the person seeking discovery come to the office of the other party where records are kept. This presented a problem, they proposed.
On April 12th, I wrote the attorney: “Please contact me regarding a time to inspect documents which you requested pursuant to Rule 34, Minnesota Rules of Civil Procedure. The documents are kept in my office at 1702 Glenwood Avenue, Minneapolis, MN, unit #3. You will need to request specific documents.”
In a “discovery conference” held with the chief judge of Family Court on the following day, my wife’s attorney said she would not come to an office in my house because she was “afraid”. Some persons capable of doing physical harm might be lurking somewhere. The judge said that, in that case, she might bring an escort who would protect her. The attorney would not set a date then to do the document inspection because she said it would take some time to schedule an escort.
On April 16th, a few days after that telephone conference, I received by email copies of two letters sent by my wife’s attorney, one addressed to me and the other to the court. The letter to me stated: “I do not seek to come and inspect documents at your house. Also, I will not permit you to come to my office to inspect documents, unless the court orders otherwise. I will move for a protective order if you do so.”
Ultimately, giving 15 minutes notice, she decided she would visit my office in the afternoon of the last business day before the trial. When I complained that I needed to do other work to prepare for the trial, this attorney must have complained about this to the court because the judge found I had been “uncooperative” during the discovery and therefore might have had something to hide.
My wife’s attorney, in turn, had objected to the majority of questions I asked in my interrogatories. To satisfy production of documents, she asked me to come to a distant suburban library (where presumably I could not attack her), only for me to be told that the requested documents were not yet available.
The issue of my violent nature also came up during the trial. Even though parties are not allowed to raise issues related to marital misconduct, allegations of domestic violence are evidently fair game. (For example, the law exempts victims of domestic violence from the obligation to attend court-ordered mediation sessions related to divorce.) Two exchanges of conversation come to mind. I will quote from the trial transcript:
The first was an attempt to raise the domestic-violence issue by a leading question. It also involved the Chinese-language translators passing written notes to each other which appear to be reminders to my wife to answer the questions in a certain way.
On pages 380 and 381 of the trial transcript, this conversation is reported:
My wife's attorney (interrogating her client): Have you ever expressed concerns in regards to slowing down the discovery process or the opportunity to seek financial documents in this proceeding.
Mr. McGaughey: Objections.
The Court: What’s your objection?
Mr. McGaughey: She is implying that I am a violent person who would harm her.
The Court: Of course she is, but that is not an evidentiary objection.
Mr. McGaughey: Okay.
The Court: Overruled.
The Interpreter: Could you -
My wife’s attorney: No.
The Court: No. The record should reflect that one interpreter handed something in writing to the other interpreter. I don’t have any idea what it is.
The interpreter: The interpreter would like to read out in English what the other interpreter wrote on the paper.
The Court: fine
The interpreter: She wrote: “for the sake of -- for the sake of safety --”
The 2nd interpreter: - therefore (unintelligible, not at mic)
The interpreter: the delay of the documation (sic) - documentation.”
Mr. McGaughey: Objection, relevance. The reason -
The Court: Stop. Stop.”
The significance of this exchange is that my wife’s attorney was trying to have her client testify that the reason that proper discovery was not done was because her client feared that she would be physically assaulted by me. She had already introduced in evidence a document showing that I had been arrested for domestic abuse. The trial-court judge himself noticed that an interpreter was passing notes to the other interpreter. What the interpreters read seems to suggest that my wife should say that her delay in seeking documentation from me was due to a fear for her own safety. After all, I was a proven domestic abuser.
On pages 393-394 of the trial transcript, this dialog is recorded:
THE COURT: I have a one-page document I’ve marked as (exhibit) 400 and it’s a document entitled: “Dismissal by Prosecuting Authority Pursuant to 30.01” regarding MNCIS case number 27-CR-12-2031, State of Minnesota versus the Respondent here. So why don’t you show that to counsel? Any objection?
WIFE’S ATTORNEY: No objection, Your Honor.
THE COURT: Okay, that’s received. Now, I’ll tell you, sir, all that does is it tells me that it was dismissed for insufficient evidence to proceed.”
The clear implication here is that the divorce-court judge thought I might well be guilty of domestic assault.
The domestic-abuse issue was important to this judge. His initial “findings of fact” includes this statement: “The parties are subject to a Domestic Abuse No Contact Order with provisions allowing contact, Hennepin County Court File 27-CR-11-XXXX.” When I pointed out that the case had been dismissed and we were no longer subject to that order, the judge’s amended findings of fact put it this way: “ The parties are not currently subject to a Domestic Abuse No Contact Order but in the past they were involved in a no contact order in Hennepin County Court File 27-CR-11-XXXX.” Why was thisorder relevant to the divorce issues if, after the divorce, my wife would live in another state? Was there something about domestic abuse in the arcane world of Minnesota politics, law, or legal precedent that raised it to a special status in divorce proceedings?
This particular judge later used his “discretion” to rule heavily against me in the divorce settlement that he ordered. Since my wife and I did not have children together, property distribution was the main issue. (See DivorceBook for a complete account of what happened in the divorce proceedings.)
State statute requires the court to distribute marital property in a “just and equitable” manner. Most believe that a 50-50 split meets that requirement. My wife and I had $110,000 in marital real estate, $5,000 in marital financial assets, and $325,000 in marital debt. This judge’s idea of an equitable distribution was, initially, to assign me the $110,000 marital asset and $325,000 marital debt and award my wife the $5,000 marital asset, her 401(k), but no debt. This was $110,000 short of being equal. But the appellate court ruled that the judge had discretion to make this kind of division.
The judge also awarded my wife $500 per month in permanent spousal maintenance (alimony) even though the law required that he take into consideration the obligor’s ability to pay. I, being a retired person with a huge burden of interest-bearing debt, did not meet that requirement in terms of present or future income. Still, the judge found that my wife did not speak English “even to a moderate degree” even though she had lived in the United States for ten years and had worked for three and a half years on the sales floor at Target in downtown Minneapolis and, therefore, she was incapable of working and I would have to support her. The appellate court again ruled that this award was within the judge’s discretion because the facts had been properly established.
The judge also ordered me to pay my wife $50,000 presumably from sale of my non-marital property. In this case, the Minnesota Court of Appeals overturned the order as an abuse of judicial discretion.
The judge’s lopsided awards in all three areas of property distribution would suggest that he did not like me for some reason. One of those reasons may have been that I was a self-acknowledged domestic abuser. The judge thought the prosecution dismissed the case against me because of lack of evidence to gain a conviction rather than that the assault did not happen. If you have read this narrative, you have a more accurate picture of what actually happened. Unfair divorce settlements and arrests for domestic abuse, at least in Minnesota, may go hand in hand.
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