Life-Altering False Allegations

A long-time client was recently accused of inappropriately touching his daughter while she bathed.   I handled the original custody matter when the child was only six (6) months old.  My client, we will call him “Mike,” and the mother of their child, we will call her “Sarah,” were never married. They had an on-again, off-again relationship and lived together for a brief time in Scottsdale before breaking up.  Sarah found out she was pregnant a few weeks after Mike asked her to move out of his home.

Their relationship was not overly tumultuous (at least from the perspective of an attorney who routinely handles high-conflict Family Court cases in Maricopa County).   There were no reported domestic violence incidents, but Mike did have a possession of marijuana charge prior to the relationship. Again, nothing too dramatic. They were pre-gaming before a Rodger Clyne and the Peacemakers concert in Phoenix, where he was arrested for possession of a small amount of weed.   Other than that, and a few inconsequential traffic infractions, my client did not have a noteworthy legal history.

sadSarah was bitter that the court gave Mike parenting time equivalent to 3 days a week.  Her anger subsided when Sarah and Mike briefly rekindled their relationship during a few parenting time exchanges.  In retrospect, it was a bad idea, as Sarah thought that the sexual relationship meant more than Mike did.  Around the same time, Mike, who was a medical resident at the time the matter started but was now a credentialed pediatrician, moved into a home in Paradise Valley.

A few months after their last fling, Mike began to date someone and the relationship became serious and exclusive in the following months. His girlfriend, also in healthcare (a dentist), moved into the PV home and they were engaged     shortly thereafter.

The now-fiancée spent some time with the child, and they had a healthy and blossoming step-parent relationship.  She would occasionally watch the child in the evenings if Mike had an on-call issue and had to go to the hospital.  It was a good situation and continued to improve as the couple planned their Mexico wedding.

Then, about 6 weeks before the beach wedding, things started to escalate with Sarah.  Mike needed the child’s passport to bring her to the wedding.  Sarah balked, claiming that Cancun was unsafe because it is “in Mexico.” My office was re-engaged to deal with the passport issue and to get the Parenting Coordinator and Family Court to address the issue on an expedited basis.   Although we quickly cleared up the passport issue, what should have been the next happy chapter in Mike’s life was about to turn into a nightmare.

About 2 weeks before the wedding, a police officer knocked on Mike’s front door and asked to ‘talk’.  According to the report, Sarah claimed that their daughter had been ‘touched’ by him because the child, barely 3 years old, had some sort of vaginal irritation.   My client snapped at the officer, livid that he was being accused of inappropriately touching his daughter.   He calmed quickly and excused himself from the conversation to call me.  (It was late in the evening and he managed to track down one of the attorneys in our office by cell phone.)

Mike was advised not to discuss the matter and demand to speak to his counsel.  The officer respected the request and may have realized that there was something odd about the allegation.

CPS, however, advised Sarah that she should not let Mike have parenting time “while the investigation was opened.” So, she filed an emergency petition seeking to suspend his parenting time because he “had molested my daughter.”

The court granted the request ex parte (without giving notice or a chance to be heard to Mike).

We scrambled.  I have handled false allegations (and not-false allegations) many times and knew that we needed to get the medical records and find out about any disclosures made by the child.   The irritation, according to not only her primary care pediatrician but also an expert forensic examiner, was nothing more than irritation from toilet paper from a child learning to clean herself.

ThScoldeden, we reviewed the forensic interview of the child.  She seemed beyond coached,
inconsistent, and incoherent.   Ultimately, the police found “no cause” to charge Mike and CPS unsubstantiated the allegation, but the wedding was postponed and Mike was traumatized by how close he was to facing substantial prison time on a felony conviction based on nothing more than Mother’s naked allegation.

Everything was on the line for my client – his relationship with his daughter, his medical license, his reputation – all for Mother’s revenge.

I share this story because this situation far too common. Police, DCS agents, and sometimes even Superior Court Judges often react first and reason later in child abuse allegation cases because no one wants to guess wrong and wind up on the front page of the Arizona Republic if a child is harmed. Understanding the process and helping educate the Courts (and sometimes the “experts”) is critical to ensuring that false allegations are disproven and the collateral damage is minimal.

See also “Whose Team are they on?  CPS Removal and TDM Meetings

Posted in Brad TenBrook, Child Protective Services, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , , | Leave a comment

Could Your College Fake ID Come Back To Haunt You Years Later?

Do you remember being a teenager and longing for your 21st birthday? The temptation of getting a fake ID was too much, and you finally caved in.

licenseFast-forward 15 years later…

You can potentially be charged with a felony or misdemeanor based on that fake ID from over a decade ago.

The question is: How is that even possible?

Recently, the MVD (Arizona Department of Transportation) implemented facial recognition technology that cross-references photo IDs. When faces are recognized that have different biographical information attached, the matters are flagged for investigation.

Yes, you could receive a call from the Office of the Inspector General (a police officer) inquiring about a fake ID you perhaps received in college to get into bars a few years early.

You may think the statute of limitations has lapsed, but that may not be the case. Generally speaking, crimes have expiration dates. However, in the area of fraud, the time does not toll until the fraud has been discovered. Arizona Revised Statute §12-543 states that the process “shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward.” That means, once the fraud has been discovered, prosecution has three years to charge you.

upsetIt is not clear what sort of actions the Office of the Inspector General will take in many of these cases. If it was truly just youthful indiscretion occurring many years ago, perhaps they will let it slide. But what if your photo was used on someone else’s license? What if the photo ID is identified as being part of some other criminal matter? What if your ID was used for someone else to fraudulently obtain employment? What if your photo was used on other illegal documentation?

No one wants to be judged by their actions when they were a young adult, but with this new implementation of technology, your actions could come back to haunt you. Before you speak to any investigator, know your rights. It is always best not to answer questions until you have consulted with an attorney, even if the investigator says they will suspend your license. You have a right not to incriminate yourself and to refuse to speak with a police officer or detective.  Depending on the circumstances, there may be more issues to consider than driver’s license revocation – a fraud charge could have lasting implications for professional licensure, creditworthiness, and employability.

Posted in Criminal, Gregg R. Woodnick | Tagged , , , , , , | Leave a comment

Calling the Police and What To Do When They Arrive

Michael Brown. Eric Garner. Debra Harrell.

These are the three names that Yale Law fellow Emily Bazelon gives as examples for her police-averse policy in her Slate article, “Why I Don’t Call the Police.”

In the article, Bazelon explains that her experience as a journalist and studies of law enforcement statistics strongly indicate that, “… if the criminal justice system gets a hold of a black person, especially if he is poor, there is a terrible, heightened risk that it will try to crush him.”

Bazelon cites numerous instances, including the cases of the three people named above, in which police treatment of black individuals triggered intense national debate about the role that race plays in contemporary law enforcement.

Police Lights

Eric Garner was killed when Officer Daniel Pantaleo used a prohibited chokehold restraint to subdue him and failed to administer cardio-pulmonary resuscitation (CPR) until seven minutes after he stopped moving.  Pantaleo was sued twice for alleged arrest- and abuse-related violations in 2013.

Debra Harrell was arrested and charged with felony “unlawful conduct toward a child” after police responded to a call and found her 9-year-old daughter at a park while her mother worked at a nearby fast food restaurant.  The girl, who had a cell phone and house key, was six walking minutes away from home and was not in apparent danger.

Michael Brown was shot and killed after an encounter with police. Brown was not armed and bystanders indicate that he did not threaten or otherwise provoke the officer who shot him.  Although details remain scarce, the St. Louis suburb of Ferguson, Missouri is now filled with police officers carrying military-grade equipment, callously opportunistic looting, and tensions growing with each passing day.

These cases are exceptional, but still too common. Gene Demby writes that 4,813 people died between 2003 and 2009 during or soon after arrest attempts, with 60 percent of those deaths classified as homicides.  Bazelon acknowledges that the statistical likelihood of an arrest-related death is low, with 98 million arrests made during the same period, but calls the number “scary” in light of the ways that police departments appear to avoid publication of similar incidents.

Ultimately, Bazelon will “try to choose not to” involve police in the life of a black person if she can avoid it.  Many people share her sentiment, electing to attempt various forms of self-help before calling the authorities to respond to crime.

In some communities, people markedly avoid calling police, instead practicing “self-preservation” and often relying on local faith leadership to help them cope with harm they have suffered.  Columbus Police Commander Bob Meader acknowledges that people in inner-city neighborhoods, in particular, are typically more interdependent and “tolerate things in different ways” than people in suburban areas.  Meanwhile, ubiquitous media coverage and sensationalized commentary from all angles creates additional fear, confusion, and confrontation among observers, pushing more communities to look inward for help.

Whether institutional bias pervades police departments to the extent writers like Emily Bazelon suggest, or the wounds of violence in some communities are largely self-inflicted, the reality that many people cannot interact with police officers without panicking is a dangerous problem.

So, what should you do if the police stop you?  If you witness something dangerous, should you call the police?

  1. Your life is more important than your attitude, so don’t argue with an officer.

Whether the cop who stopped you is one of thousands of respectable officers of the law who will perform his duties admirably or one of the dangerous few who could make a lethal mistake, there is simply no reason to risk escalating a stop into a verbal confrontation (or worse).  It is imperative to remember that police officers constantly endure tremendous stress and forcing an officer to decide whether you could threaten his safety is a losing proposition.  When an officer stops you and wants to talk to you, speak to him as you hope he would speak to you if you wore the uniform: in a calm, respectful tone without cursing or shouting.

Magnifying Glass

  1. Comply with the officer’s orders and let him do his job.

Police officers responding to a possible crime have two primary goals: (1) restoring peaceful and safe conditions, and (2) investigating whether a crime has occurred and securing evidence to make an arrest, if necessary.  If a police officer witnessed an infraction, which is nearly always the case for traffic stops, then his decision whether to arrest you will not be positively influenced by a spirited debate.  Police officers are not prosecutors, judges, or your parents – trying to argue your case to them puts your safety and your legal rights at risk.  If you believe the officer is mistaken about whether you violated a law, you may politely explain yourself, but remember that whatever you say could be construed as a confession.  Attempting to combat an officer’s decision to arrest you by verbally or physically resisting will almost certainly result in graver legal consequences and could spiral into a violent altercation that you cannot win.

  1. Respond to basic questions, calmly refuse searches, and do not speak if you are placed under arrest.

Police are legally justified to engage anyone in consensual conversation, and can stop a person for a reasonable amount of time with articulable suspicion that the person is engaged in some criminal activity, including traffic violations.  Police may ask your name if the stop is justified, and it is generally advisable to comply rather than dispute the reasonable basis for the stop.  Police are also permitted to ask for your consent for a search, and may even suggest that they “already know” what you are hiding.  If an officer asks to search you, your vehicle, your home, or other property you control, you can always politely refuse.  Your refusal cannot be used against you, and if the officer proceeds without consent, whatever he finds might be excluded in court if you are later charged.  The most important thing to remember is that police misconduct can be corrected in court.  Unfortunately, however, the court cannot correct the pain or disability of injuries you suffer if a police officer, fearing for his safety, uses force to subdue you.

  1. If you witness a crime or think someone is in danger, call the police.

In perhaps the most famous misguided self-help case in recent history, George Zimmerman attempted to apprehend Trayvon Martin himself instead of waiting for police to arrive.  Zimmerman killed Martin, but was eventually acquitted of first-degree murder because the jury believed he acted in self-defense.  Regardless, Martin is dead and Zimmerman’s life is forever changed for the worse.  The lesson to be learned from Zimmerman is that your life and the lives of everyone else involved are imperiled if you don’t seek professional help for dangerous situations.  Just like you would call the fire department if you saw a burning house, you should call the police if you see someone breaking in through your neighbor’s window.  In the overwhelming majority of cases, police officers perform helpful and necessary work for the community and can turn dangerous situations into peaceful resolutions.

The Constitution can protect you from injustice, but not from loss of life.

The Fourth, Fifth, and Sixth Amendments provide the backbone of criminal procedure and guide police practices whether the officer and suspect know the rules or not.  If an officer arrests you without cause, forcefully interrogates you without proper advisement of your rights, or denies access to counsel, the judge assigned to your case will unravel the damage to the extent possible under the law.  Judges cannot unravel injuries or death resulting from violent confrontations with police, however, no matter how extreme the conduct.  Don’t put your safety or that of the people around you at risk by forcing an officer to react to your conduct.  Instead, let your lawyer and your constitutional rights do the talking.

Posted in Brad TenBrook, Child Protective Services, Criminal, DUI, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , , | Leave a comment

Sex Offender Registry Injustice

What was once a well-intentioned law that was meant to make the community a safer place has spiraled into a witch hunt looking to burn alive anyone who wears a pointed hat. While no one would argue that sex offenders should escape free of consequence, the lifetime sentence society has instilled upon these people is extreme. When we think sex offenders, our minds automatically travel to rapists, pedophiles and child molesters. The worst of the worst. Monsters who prey on innocent defenseless victims. Yet that term has come to include so much more.

Justice gravestone

The reason the registry was so heavily advocated for was because of the mistaken belief that sex offenders are more likely than not to strike again. It was believed the recidivism for sex offenders was the norm and not the exception. Although rapists and pedophiles may have the highest rate of recidivism they are not the only ones to be included in this all-encompassing registry. The Department of Justice places the likelihood of repeat sexual offenses around 14% at the high end. The registry was meant to be a warning to the community of dangerous offenders who were likely to repeat the offense that got them into trouble, but has turned into a permanent catch-all registry. The unfortunate fact is, most sexual offenses are committed by family members or someone known to the victim rather than a dangerous stranger. The registry is not particularly effective for preventing intrafamily crimes, aside from alerting people about registrants prior to starting a relationship with them.

Before we fly off the handle, there are definitely some sex offenders that are dangerous. There are some that are, and will always be, a danger to the community. However, not ALL sex offenders are a danger to the community. In fact, the majority of “sex offenders” are just people who made mistakes. The term “sex offender” has grown to encompass a myriad of people that were never supposed to be included on this list of dangerous offenders.

The best example is being placed on a sex offender registry for public urination. This cDrinks at a barharge is almost commonplace in Tempe, Arizona on Mill Avenue, where many young college students go out drinking and eventually have to use the facilities. Tempe does not offer public restrooms, so these patrons are forced to seek out a private restroom in a club. To get into the club, they must wait in line, show their ID, then (if they didn’t have to pay for entrance) run to the closest bathroom. There are no other alternatives – except behind a dumpster. Did the City of Tempe solve this issue by installing public restrooms or even port-a-johns? No, they did the next logical thing: started placing people who urinate in public on a sex offender registry.

This should be considered an abuse of the registry that was supposed to be keeping neighborhoods safe from sexual predators who stalk or kidnap their victims, strangers to the perpetrator, and force sexual acts upon them. There are certainly some people who deserve to be on this list forever, but the registry was never meant to include such “harmless” acts as peeing on the side of the highway miles away from the nearest rest stop. While those acts are technically illegal, a ticket and fine would be an appropriate punishment — not a lifetime on a sex offender registry.

Having these petty offenses qualify for registry status only serves to dilute the seriousness of being on the registry in the first place, reducing its effectiveness in warning neighborhood residents of potential risks. The registry was meant to keep communities safe, but has become a lifetime punishment for many people caught within its bloated scope. Does that make you feel safer?

Posted in Uncategorized | Leave a comment

Children Saved from Hot Car

It’s scary to think that anyone would leave their children locked in a car during the summer months. Recently, a Texas mother did just that. She went to get her hair cut at a salon and left her children in the car.

Shoppers at the center heard children crying and quickly found the two children locked in the car. What would you do?

Parking lotAfter hearing the cries of the children, a few people passing by knew they had to do something. Thinking they had little time to spare, they busted the window of the car and soon had the children out in fresh air. The mother came out to see what the commotion was about and realized what was happening. She begged the crowd not to call police and no one had. Hopefully, this was a lesson learned for the Texas mother and she will not leave her kids in the car again.

This could have been a very tragic story. Things like this happen all too often around the country. We have heard numerous stories this summer of children being left in cars. Recently, Shanesha Taylor left her children in a car while she went in for a job interview in Scottsdale, Arizona. Luckily it was not during our hottest summer months in which temperatures are known to reach over 110°, but Ms. Taylor was charged with felony child abuse. Leaving a child in a locked car in the summer is a serious offense and very dangerous to children, especially here in Arizona. It is important to remember not to leave your children in the car even for a “quick” errand. Take the extra three minutes to unbuckle them and bring them in with you.

Posted in Brad TenBrook, Child Protective Services, Criminal, Gregg R. Woodnick, Leslie A. Satterlee | Tagged , , , , , , | Leave a comment

Parenting Disaster

The tables were sadly turned on a well-meaning former Pennsylvania prosecutor and his wife when they were charged with child abuse. The couple, Douglas and Kristen Barbour, thought they were doing the right thing in adopting two children from Ethiopia, but soon learned they were not equipped to parent these children with special needs.

The Barbours adopted a 6-year-old boy and an 18-month-old girl in March of 2012. They believed if they raised the children as they had raised their two biological children, they would enjoy the same great results. Unfortunately, the children did not adjust as well as the parents had hoped and the Barbours soon recognized they needed help. They sought the advice of an expert in foreign adoptions but refused to follow his recommendations to be more flexible with their parenting style. They wanted to parent the way they saw fit.

Small GirlThe Barbours made sure to bring the children to the doctors when the children were ill and tried their best to handle the children’s behavioral issues. However, it was soon clear the parents could not meet the children’s needs and the children suffered as a result. Although the boy was six, he went to the bathroom in his pants. The parents attempted to discipline him by forcing him to eat in the bathroom or stand alone in the dark. The girl had multiple head fractures – although the parents allege it was because she was clumsy, the doctors who examined her were doubtful of that conclusion. As a result, the boy was malnourished and ended up losing 10 pounds in the Barbours’ custody and the girl was healing from multiple fractures.

Similar situations have happened in Phoenix, Arizona and Birmingham, Alabama in recent years, where excessive punishment led to criminal charges that made national news.  Arguably, many of these parents did not intend to hurt their children. In fact, several sought help from experts, but in the end were patently unsuccessful, usually because they failed to follow the experts’ advice. Notwithstanding various safeguards that exists to protect children, the harm that parents can inflict is often the worst of all.

Click here for more on this story.

Posted in Uncategorized | Leave a comment

Implications of Protective Orders

Orders of Protection are not to be taken lightly. There are many ways an Order of Protection can affect your life.

In Arizona, Orders of Protection are governed by the Arizona Rules of Protective Order Procedures. An Order of Protection is sought when someone feels they are in danger of being physically harmed or have been physically harmed by another person. The other person must have had some type of relationship with the person they are seeking the order against. There are many relationships the parties could share or have shared in the past giving rise to a need for an Order. These relationships could include former lovers, relationship through marriage or blood, residing together, or having a child in common.

ConfrontationIn order to get an Order of Protection, the Plaintiff (requesting party) needs to go to Court and file a Petition for the Order of Protection.  The Petition could be filed with a municipal or justice court in places like Mesa, Glendale, or Scottsdale, or in the Superior Court in Phoenix.  The Court will consider the Petition for Order of Protection and can grant the Order based solely upon what the Plaintiff says.

Once the Order is granted, it is served on the defendant (other party).  At that point, the Defendant has the right to contest the Order of Protection.  If a hearing is requested, both parties need to appear in the Court and the judge will decide whether the Order should be kept in place, modified, or dismissed. This is a crucial point in the case. If an Order is not defended or contested properly, it could have lasting implications on you.

What could that mean for you if the Order is issued against you, or upheld against you after a hearing?

Orders of Protection are likely to show up on background checks run by potential employers, preventing you from obtaining certain jobs. An Order of Protection could also get you terminated from your current position or reassigned to other duties within a company or government office. Orders of Protection prevent you from possessing a firearm and, if you already own one, force you to relinquish it. The Court could also order the exclusive use of a common residence to the Plaintiff.

Gated Patio

The Order may also limit your ability to see or communicate with children, and that could also have an effect on any other pending family court cases.  Orders of Protection cannot list a child unless the judicial officer believes that “physical harm has resulted or may result to the child, or the alleged acts of domestic violence involved the child,” but the weight that the judge gives to allegations in protective order hearings is often greater than what would be given in other types of cases.

Under emergency circumstances, a judge may err on the side of caution and enter a child on a temporary basis even with a minimal allegation of danger. This is a small consolation because in the end an Order of Protection could affect permanent parenting time and legal decision-making.

Although many parties proceed without representation in Order of Protection hearings, the severe consequences of having an Order entered against you may justify retaining an attorney.  Even though the Order is temporary, its impact can last a lifetime.

Posted in Uncategorized | Leave a comment