I tried to copy and paste the relevant information into this one post but sadly was unable to do so. I will have to spread it over several posts. Here is part one which covers 'more city torments' to 'PART II'.
more city torments
Another threat, somewhat less menacing, was that the city’s Solid Waste and Recycling department sent me a letter on February 25th to this effect: “On 02/16/11, you were notified that garbage and rubbish were in the area around the Solid Waste Collection Point (SWCP) along your alley or curb line at the above service address, and that you were given until 6:00 a.m. on 02/23/11 to clean this area. Since you did not clean the area, the clean-up was done by city crews. This is in accordance with city of Minneapolis Ordinance 225.690. The charge for this clean-up service is $100.00. This amount will be added to the City of Minneapolis utility (water) bill for the above service address.”
It was unfortunate timing. I was taken taken to jail in the late afternoon of February 18th. At some time before February 16th, my tenants had placed bags of garbage on the pavement next to the dumpster instead of in it. Before being arrested, I had picked this garbage up and put it into the dumpster. The photographs taken by sanitation workers as evidence that I had failed to clean the area on February 24th showed one or two small items lying on the ground - not the same items as those photographed on February 16th - in addition to two pieces of furniture.
The city takes such furniture without charge if there is a note taped or tacked to the furniture saying “for sanitation pick-up”. I had asked my tenants countless times to tape those instructions to discarded furniture but I usually have to do it myself. The tenants had evidently failed to attach the instructions this time and I was unavailable to inspect the area each day as I usually do while walking the dog.
One-hundred dollars is a large sum of money for cleaning around the dumpster. Its real significance, however, lies in the fact that the city issues progressively larger fines and fees each time it “corrects” a certain type of violation. Next time, the same trash clean-up could cost me $150; the time after that, $200 or $250. In truth, the city of Minneapolis is attempting to use fines and fees as a substitute for property taxes to balance its budget after the state of Minnesota cut the local government assistance.
Another way to raise revenue is for city crews, for a fee, to shovel sidewalks which have not been shoveled down to the concrete the full width of the sidewalk within four hours after the snow has stopped falling. I had already received a warning letter that the next such failure would cost me $200. I had a shovel by my front door to do prompt shoveling in accordance with the ordinance but a court order now forbad me to visit the property.
to hire a lawyer or not to hire?
Judge Weinert had made it clear that he expected me to hire a private attorney to represent me in the domestic-abuse proceedings. Stunned by the arrest and by the judge’s release conditions, I had been dragging my feet. I was declared ineligible to be represented by a Public Defender since I received both a Social Security retirement benefit and a state pension. The Legal Rights Center, one of the two referral agencies mentioned in the court handout given to me by the judge, “represents, without charge, low-income and people of color who have legal problems with the juvenile justice, criminal justice, and child welfare systems.” I would not qualify for this service either.
The other lawyer-referral agency was the Hennepin County Bar Association. For $30.00, this association schedules a half-hour interview with a private attorney to discuss particular issues of each case. Referrals are made for the same or next day. Because I might need legal representation both for divorce and the domestic-abuse charge, I was referred first to an attorney in Brooklyn Park, James Gurovitsch, who specialized in divorce for a March 1st meeting. He gave me valuable information about that process. But I still needed to consider whether to seek counsel in domestic-abuse defense. On March 7th, I visited another attorney, Gregory Bachmeier, who represents such clients.
It was a sobering interview. I had naively assumed that, because of the weak case against me, the prosecutor might decide to drop the charges against me at the March 18th hearing. The attorney told me that this was unlikely. The prosecutor might let me plead guilty to a lesser charge in exchange for dropping the domestic-abuse charge but he or she would not drop the charge unconditionally. Unless my wife recanted her testimony, there would be pressure from (female) victims advocates and others to prosecute me to the hilt. I was determined to go to trial rather than plead guilty to anything even though such pleading would not qualify for “enhancements” if my wife accused me of domestic abuse again.
What if my wife did not show up at the trial? Would the prosecutor drop the charges? Would I automatically win the case? No, since domestic abuse is considered an offense against the state, the prosecution would likely proceed. My wife’s failure to appear in court might weaken the prosecution’s case somewhat but not derail it. Normally, the prosecutor subpoenas the complainant as a witness. Failing that, I could subpoena her.
Likewise, the attorney considered it highly unlikely that the judge or prosecutor would rescind the “no contact” order or the order not to visit my home at 1702 Glenwood Avenue after the March 18th hearing. They seldom do that any more. Why not? It’s because, to use the vernacular, there’s “nothing in it” for court officials. There’s always a chance that, if they show leniency to a defendant, something bad will happen and they will be blamed.
What if such orders result cause a defendant to lose his home or ruin his business? The attorney’s cold but honest reply was that they simply don’t care. The judge and prosecutor are concerned about protecting their own rear ends, and what happens to the defendant is his business.
I was being charged with a misdemeanor. This attorney charged a flat fee of $1,800 for handling misdemeanor cases through trial. After the March 18th hearing, the trial would probably take place six weeks to two months later. That meant that I could be barred from visiting my own home for up to three months, even if my wife disagreed - and, of course, I could be charged with a crime for even soliciting her opinion.
waiting for March 18th
I was luckier than most. I was living temporarily in a friend’s suburban home and had access to his car. I was able to remove my computer and printer from the house, write letters, and regularly check email. I had plenty of food and clothes. For recreation, I could take walks on a bridge crossing the Mississippi river and watch small pieces of ice flow by. There was a commercial strip across this bridge where photocopying and banking services were available. I bought myself a new cell phone. All things considered, it was not a hard life.
Joe’s teenage son and 7-year-old granddaughter were living in his house. When she was not living with her mother, his 9-year-old daughter also stayed there. So did Joe’s 17-year-old niece. The two young girls wanted to be playmates. I let them put plastic curlers in my hair while I sat at the computer, producing girlish giggles. Everyone was eager to have me see the latest DVDs. I also sat in on visits from Mormon missionaries. Even if my personal papers were in disarray, my new life was personally engaging. I was lacking only the ability to communicate, directly or indirectly, with my wife. On the other hand, I wrote a letter to Judge Weinert presenting the facts of the case.
One day in early March, a process server arrived at Joe’s house and handed me a petition for divorce. The petition was asking for spousal maintenance including medical bills, payment of my wife’s and my own attorney, and even an “equitable” share of my pre-marital property. Because of her illness, my wife was said to be unable to work. She was interested in moving from Minneapolis to a more upscale locale. If I did not respond to this petition within thirty days, the court would automatically agree to its terms.
A day or two later, my wife’s attorney called. She said that my wife was seriously ill and wanted to get the divorce over quickly. I told her that the terms of the petition seemed draconian to me. It was merely a formality, I was assured. My wife was interested in a quick, uncontentious settlement. She wanted to remain friends with me after the divorce.
How much would it take to settle? The attorney said that she could not say because of uncertainties relating my wife’s medical expenses. Before I was arrested, my wife and I had applied for my wife to participate in the “Assured Access” program on the basis of her assets alone. We did not know if she had been accepted for the program. The attorney said that the county aid workers would not give her any information about this, but I might inquire.
I came to realize that I was getting over my head in legal problems. Even if I relished the idea of pleading “not guilty” and representing myself in a trial, that might not be the best way to go. My wife’s divorce petition had stated, among other things, that while the law encouraged the two parties to seek mediation, conviction for domestic abuse removed that requirement. I now had two major problems. Perhaps it would be best to spend some money to seek adequate representation.
Among the stack of letters from local law firms, I found one which promised to represent me for $800 through the pretrial hearings and the trial itself. I had a brief discussion with the partner of that firm but did not make arrangements to meet. I also checked the internet for well-regarded attorneys practicing in this area. One man specialized in real-estate questions and charged $250 an hour. Another attorney, who was well regarded, had an office near my temporary home.
I called both. I made an appointment to meet with the first attorney on the following day despite concerns about cost. The other attorney said that he would himself be unavailable on March 18th but he would call an associate who might be willing to take my case. That associate, John Ganley, soon called me back. He said that he charged $800 to $1,000 for taking domestic-abuse cases through the pretrial hearings, and then $500 per day for representation at the trial itself. His direct manner impressed me. I later learned that he had temporarily been suspended from the practice of law in the 1990s but I was in no mood then to let that bother me.
On the following morning, Friday, March 11th, I tried repeatedly to contact the $800 attorney but could only leave messages on his answering machine. I decided to cancel my early-morning appointment with the more expensive attorney. He appreciated the fact that I had called to inform him of the cancellation. The other attorney, Ganley, was representing a man in Pine City Saturday morning. He asked me to call him around noon that day. When I did, we made arrangements to meet at a Perkin’s restaurant near I-94 at 3 p.m. on Saturday.
I meet with my domestic-abuse attorney
I arrived at the restaurant on time and ordered a cup of coffee. When the attorney arrived, he ordered a soft drink. John Ganley immediately set to work, asking me routine questions and looking through the police report and related documents. He wanted me to explain exactly what had happened during the altercation with my wife. I drew a sketch of where we were positioned. The photographs showing blood on my wife’s mouth would be the most damaging piece of evidence against me. I said that, if there was blood, it might have been caused by lifting upwards to free my hand from my wife’s mouth after she had bitten me.
After the facts of the case were discussed, Ganley went into brief discussion of how Minnesota courts treat cases of domestic abuse. Once, he said, men were free to beat their wives; but now the pendulum has swung to the other extreme. The courts are totally biased against men who are accused not only of beating women physically but making them feel uncomfortable during an argument. Lesbian feminists run the machinery of government in Minneapolis, Ganley said. The system has no sympathy whatsoever for a person like me.
Now on a roll, John Ganley scribbled short notes on a paper as he continued his explanation. “Nothing matters”, he wrote, coming back repeatedly to this theme. The court system is so screwed up in Minneapolis that nothing matters apart from the way that the game is played. It does not matter what the facts of the case might be. It does not matter what the law says. Judges do whatever they please. You need experienced people representing you who know these judges and know how the game is played. Otherwise, innocence of the charge will not matter. Someone who tries to represent himself will be regarded as a sucker. I recognized that this was part of Ganley’s sales pitch to persuade me hire him, but I also believed that his argument contained more than a little truth.
John Ganley pointed out several possible outcomes. First, the city prosecutor might decide to drop the charges against me. This was the most desirable outcome, but also highly unlikely. A second possibility would be that the prosecutor would decide to allow me to plead guilty to the misdemeanor charge of assault but stay the sentence for a year. This was called “continuance”. If no similar incidents took place within a year, the charges would be dismissed. I would then have no conviction on my record.
A third possibility was that I could plead guilty to a lesser charge such disorderly conduct. This referred to conduct such as yelling at another person. It would not count as a precedent for escalating penalties if domestic-abuse actions were repeated. Finally, I could decide to take the case to trial. Then, anything could happen. I might be found innocent or I might be found guilty. Keep in mind, however, that the definition of domestic abuse is quite broad.
I said that I was thinking of asking for a trial. However, the option of pleading guilty to the charge with the understanding that the conviction would be erased after a year did not sound too bad.
Ganley and I briefly discussed my divorce case. (He had practiced law in this area ten years earlier but said he had switched fields of practice because divorce is an area that leaves few satisfied customers. He was tired of witnessing and even causing human misery.) My first task was to respond to my wife’s divorce petition. Ganley said that I could do a general response: Just say, “I accept paragraphs a,b,c; and I deny paragraphs d,e,f. Wherefore, I request that the court order this, this, and this.” Write something up and he’d take a look at it when we got together on March 18th. Serve a copy on my wife’s attorney and file the original with Family Court.
John Ganley also said he would call my wife’s attorney stressing the fact that we had $250,000 in joint debt obligations. Just because divorce court awarded a particular piece of real estate to a particular party did not mean that the bank would let the other party off the hook with respect to the mortgage obligation. I was in a strong bargaining position, and it would be well to let my wife and her attorney know that I knew.
I wrote Ganley a check for $1,000 before he left. I also picked up the tab for the drinks.
I receive evidentiary materials from the prosecutor and hear from my wife’s attorney
It was the final week of my exile from home before the March 18th hearing. On Monday, March 14th, I received an email from Kristin Wilson, a paralegal in the Minneapolis city attorney’s office, which attached files with evidentiary materials. Because I had written a letter to the city attorney’s office indicating that I would represent myself, this information was now being sent to me. I forwarded the email to John Ganley.
For the first time, I saw the “Victims Domestic Violence Summary” containing further information about the arrest. This report 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.” Keep in mind that this was the first physical altercation with my wife that I had had in eleven years of marriage.
I also took a look at the photos which were small and positioned sideways. I was shocked by how forlorn my wife looked. On the other hand, I did not see any blood on her mouth. There might have been a small red spot near her upper lip in one of the three photos included in the exhibit but nothing looking like blood in the other two. The exhibit also included a picture of the back of my right hand which, as expected, did not show a clear bite mark. There was also a photo of the jailhouse ceiling. There was an audio file of the 9/11 phone call but I lacked the software to open it. I forwarded the files to John Ganley, my attorney. He agreed that the evidence of blood on my wife's mouth in the photos was questionable.
Later in the week I received another call from my wife’s divorce attorney. She informed me that she was filing the petition with the court to get this case quickly on the court calendar. My wife was very ill, and we needed to settle the case was soon as possible. The attorney mentioned that my wife had been throwing up nearly every day. This statement shocked me. I had never seen anything like chronic vomiting. It was an ominous sign for a woman with known health problems.
Rather impulsively, I called this attorney back. I said I would make my wife an immediate cash offer of $25,000 to settle the divorce. (A week earlier, my wife had agreed to settle for $30,000 and I had subsequently incurred expenses related to my domestic-abuse arrest.) Furthermore, I would go to China to be with my wife if she had an operation in a Beijing hospital.
The attorney responded that $25,000 was too little. She would not say at that point what settlement offer might be adequate. She also said that my wife wished to make a clean break with the past; my promising to go to China would not suit her client’s needs. On the other hand, the attorney said that my wife would attend the pre-trial hearing for the purpose of requesting that the no-contact order be lifted and I be allowed to return home.
the court hearing on March 18th
I was at the court room in the Public Safety Facility by 8:30 a.m. as requested. The proceedings did not start until 9:00 a.m. My wife and an interpreter were sitting on the other side of the room. I did not attempt to speak with them. When my attorney arrived ten minutes later, he spoke with several court employees including the prosecutor. The judge was Mary V. Vasaly. I sat in a bench to the right.
While John Ganley sat in the bench next to me waiting for the court proceedings to begin, he mentioned that he had invented a new type of floatation device for swimmers. He wanted to patent it and produce a small quantity for sale.
The prosecutor, a black female, asked Ganley to confer with her outside the court room. At length, he returned with her offer. I had 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. 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.
Ganley said that the prosecutor was quite angry with me because of disclosures in the police report. She was angry that I had written a letter to the judge. She had acted like a wild woman, waving her arms around during the negotiations. I had to decide how to plead. If I pled guilty to the domestic-abuse charge, I would have to pay $200 for prosecution costs. I would also be required to attend two or three anger-management counseling sessions. Sentencing would be next week. The prosecutor was now agreeing that I could plead guilty to causing “fear” of physical harm rather than a physical injury.
My guilty plea would say that my wife and I had engaged in a physical altercation over a checkbook and that, as a result, she had been frightened. That was a truthful statement. The scenario also seemed to fit the definition of domestic abuse. On the other hand, the Domestic Abuse statute defines "fear" as "the infliction of fear of imminent physical harm, bodily injury, or assault". I doubt if my wife feared a future physical assault. Rather, she feared that, in calling the police to carry out their ruthless task, she had destroyed the possibility of a good relationship with me. Divorce was the likely outcome. In the future, she would be alone.
I had originally intended to let my case go to trial but my wife’s illness troubled me. Even if they did not show blood, the photographs of my wife indicated deep unhappiness. If she was vomiting every day, her cancer might have reactivated and spread. I was less interested than before in asking for a trial because of “principles”. To plead guilty with continuance would settle the case and perhaps have no lasting consequences. I wanted to be free to go to China to visit my wife in the hospital. Therefore, I told Ganley I would accept the first option.
John Ganley and I stood in the docket before Judge Vasaly. The prosecutor was on the other side of Ganley. I had thought that pleading guilty would be a matter of making a single declaration of guilt. Now, however, the judge started asking me a series of questions. My recollection is that, when I realized I was being asked to admit to untrue statements, I hesitated and the prosecutor pressured me to commit on the spot. “Yes or no?”, she demanded to know, glaring at me. In a moment of weakness, I decided to go with the program.
The transcript of my appearance before Judge Vasaly, on March 18, 2011, reveals that the court clerk asked: “Mr. McGaughey, how do you plead to the misdemeanor charge of domestic assault, harm, that happened on or occurred on or about February 18, 2011 ...?” My attorney, John Ganley, interjected: “We’re doing it under subdivision 1, fear.” This change was accepted by the court and the prosecution.
The court clerk then asked me: “To the amended charge of domestic assault, fear, do you plead guilty or not guilty?” “Guilty”, I answered.
I was then asked to raise right hand to swear that I would give true testimony in the questioning of facts. Did I understand the charge and the plea bargain? Had I had sufficient time to make my decision? Had I adequately been represented by counsel? “Yes”, I replied in all cases. Had I been promised something to plead guilty or been threatened? No. Neither was I under the influence or alcohol or drugs or undergoing psychiatric treatment.
Having answered appropriately to all questions, I was now asked to admit to having signed a “Petition to Enter a Plea of Guilty in a Misdemeanor Case.” Yes, I had signed this document after giving it careful consideration. I knew I waived my right to a jury trial and the right to remain silent at trial.
My attorney then presented a second document titled “Domestic Violence Supplemental Petition to Enter a Plea of Guilty”. Yes, I had signed this document, too. This was the agreement that the present case would be dismissed if no similar incidents of domestic abuse occurred within a year of sentencing. However, if another incident did occur, future convictions on charges of domestic abuse were “enhanceable” for a period of ten years. That meant that the penalties would be increased for the same type of offense if it were repeated at some time during the next ten years.
I had a question: “If there is a trial on what might happen within a year and I’m found innocent, then it’s not enhanceable, is it?” The judge did not understand my question. In fact, she was confused. After attorney Ganley explained that a trial which found me innocent would not trigger the ten-year period of enhanced penalties, the judge agreed. I therefore accepted the deal.
Now began the questioning of facts in this case.
Yes, my wife and I got into a heated argument over a checkbook. “And in the process of grabbing for the checkbook she (my wife) became afraid, and she was afraid of physical harm, is that correct?” I answered: “That’s right.”
“And basically you grabbed her hand to get the checkbook, right?”, the court clerk asked. “I touched her hand, yes. I grabbed the check book.”
The clerk then asked: “And that’s what caused her to be afraid, correct?” I answered “yes”.
The clerk then asked the prosecutor if she was satisfied with the questioning and my answers, but she was not. The prosecutor, Deborah Styles, then asked: “Sir, it was the manner in which you grabbed your wife’s hands that caused her to fear imminent bodily harm, isn’t that correct?” I answered: “I suppose.”
Here the transcript differs from my recollection of being pressured to answer “yes“ or “no” by Ms. Styles. The transcript reads:
"Mr. Ganley: You have to say yes or no. (not “I suppose”) Ms. Styles: It’s a yes or no question. Me (the defendant): Yes.”
That was enough to satisfy Ms. Styles and the questioning ended.
The judge then said: “Given that waiver and the factual basis being established, I find that the Defendant has voluntarily, knowingly, and intelligently waived his rights. I’m not going to accept the plea right now. We’ll accept it at sentencing based on the pre-sentence investigation, and so we’ll go ahead and set the date for you to come back for sentencing, and in the meanwhile you’re to cooperate with probation in preparation of the PSI. Do you have any questions ...?”
I remember that I was taken aback at being arraigned before the judge and being asked a series of questions. I had thought my attorney would enter a perfunctory plea of “guilty-continuance”, meaning that I had waived my right to jury trial and I would not have to answer any questions. The plea would bypass that. Now it seemed I had been required to say that I was indeed guilty and admit to facts proving it. I had not properly been forewarned.
Another concern was probation. When we first discussed my options, attorney Ganley had told me that a plea of “guilty-continuance” would not involve probation. Now I was being told otherwise. I was also told that a condition of probation was that I attend Anger Management classes. Ganley thought there would be three classes. It now appeared that the Anger Management program might last longer than three weeks.
My concern at the time was that I be free to accompany my wife to China where she expected to have an operation for cancer. Her divorce attorney had reported that my wife vomited nearly every day. I thought this indicated a serious health problem. Perhaps my wife would die soon. In that context, the prospect of being convicted on a domestic-assault charge paled in significance. I wanted assurance from the court that my probation requirements would not preclude a trip to China. The court gave tentative approval of my request.
The final event of the day involved my wife, who sat in the courtroom with a Chinese man who happened to be the husband of her divorce attorney. At the end of the proceedings, Judge Vasaly reminded me that the no-contact order issued by Judge Wernick remained in effect until sentencing took place in a week. John Ganley promptly pointed out that my wife and her interpreter were sitting in the back of the court room intending to ask that the order be lifted. When the judge hesitated, Ganley further said that my wife was quite ill and we needed direct contact to make arrangements related to her treatment.
That explanation had the desired effect. Prosecutor Styles was reluctant to lift the DANCO (domestic abuse no contact order) as she called it; but after approaching the bench for a private conversation, she and the judge agreed to do that. The judge issued an order to rescind Judge Wernick’s no-contact order. I was now free to return to my home.
Even so, my goose was cooked. I had now pled guilty. I had declared that I had waived my right to a jury trial, I understood the consequences of my plea, and I had been adequately represented by my attorney. The formal sentencing would come next week.
After they pleading was concluded, my wife’s interpreter walked over to me. My wife had changed the lock to the front door. He handed me the new key. I then walked over to my wife. We gave each other a hug. John Ganley said: “That’s a good sign.” John Ganley then led me back to the probation office in another part of the building. I needed to fill out intake forms. Then he left.
I sat on a bench filling out a lengthy questionnaire which included statements about the incident that had led to my arrest. I was on the last two or three questions when a tall woman who was a supervisor in the probation intake unit asked me to come with her to her office down the hall. She seemed especially interested in my reaction to the events that had taken place. Was I angry at anyone?
I said I was upset by the fact that the arresting officer had not asked me any questions before taking me to the squad car and that the police report contained numerous false statements. The woman said that the officer had no reason to falsify the report. He was merely doing his duty as he saw it. This woman seemed annoyed that I was criticizing the officer. It seemed that she wanted to know whether I was angry with my wife (or perhaps with women in general).
The probation supervisor filled out the remaining questions in the sheet, saying that I felt the officers had lied. I asked about the process. She said that she was gathering information so she could make recommendations to the court about my probation.
This, too, was a new one. I had been unaware that if I pled guilty-continuance, I would be on probation for a year. What did that mean? It meant that I would regularly be reporting to a probation officer. It meant that I could possess no fire arms for three years. It also meant that I would be required to attend anger-management classes for a period of eighteen to twenty-four weeks.
Still concerned about being free to travel to China, I said that I had been told that there would only be three anger-management sessions. The woman said I had been misinformed. Evidently, the prosecutor had not promised the shorter period of mandatory counseling but my attorney had merely assumed it. The general rule was that pleading guilty-continuance does not involve probation.
Murphy’s Law was defining my situation. I had pled guilty to the domestic-abuse charge so I could get the case over quickly and be free to spend time with my wife in China at the time of her operation. But now I was obligated to attend anger-management classes for a minimum of eighteen weeks with occasional excuses for attendance when I had to go out of town. I had not bargained for being tied up in Minneapolis for half a year. Among other things, I was program chair for an academic conference to be held in New Orleans in early June.
back home
When I stepped outside the front door of the Public Safety Facility, I had a bizarre conversation with a man dressed in a Vikings jacket who seemed to be doing research on real estate near the Metrodome, the possible site of a new Vikings stadium. He asked me who owned various buildings in downtown Minneapolis, what kind of glass was used in the windows, and other similar questions. He gave me a business card for his consulting company. We walked together for several blocks before the man went into a building to warm himself. I was nursing a headache by this time.
Once back at my car parked across the railroad tracks, I drove to my home at 1702 Glenwood Avenue. The key given to me by my wife’s translator did not work. The downstairs tenant let me go through her apartment to the back stairs which had access to my own apartment. However, that door was also locked. My wife was away. I heard the dog squealing but was unable to open the door.
Later that day, I returned to the house. My wife opened the door. The subject most on my mind was what she had told the arresting officer. Was it true 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 the 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.
Although my recollection of the event was somewhat different, my wife’s account made more sense than the officer’s description of me holding both of her wrists with one hand and punching her repeatedly in the face with the other. I had concluded that whatever injuries may have occurred were the result of lifting my hands up to free myself from her mouth as my wife was biting my hand. It could be that I had selective memory when I did not recall the shaking. I still think that whatever contact my hand might have had with her mouth occurred as she bent down to bite me. I had no reason to come near her mouth while I was trying to grab the checkbook.
the case against me
A court report that I saw the following week said that I had pled guilty to “the Misdemeanor crime of Domestic Assault - Fear.” Minnesota statute mentions three situations which qualify as Domestic Abuse. The first is “physical harm, bodily injury, or assault’. The second is “the infliction of fear of imminent physical harm, bodily injury, or assault.” The third is “terroristic threats, criminal sexual conduct, or interference with an emergency call.” Even though I had laid hands on my wife’s wrists, I was being charged only with producing fear of future physical harm. That seemed accurate enough.
When I was released from jail, I received a receipt from the Sheriff which characterized my offense as follows: “Domestic Assault - Misdemeanor - Intentionally inflicts/ attempts to inflict bodily harm on another.” The “current offense” is described in a report by the Department of Community Corrections and Rehabilitation after a follow-up interview with my wife as “Domestic Assault - Misdemeanor - Commits Act with Intent to Caus” (Here the remaining letters or words are cut.) I must assume that I was convicted of intentionally causing an injury, even if it was only to produce fear in my wife. How does this square with my wife’s statement to me that she had assured the prosecutor that the injury had been unintentional?
The “confidential” section of the follow-up report (which was leaked to me) makes the following statements: “The victim reported on 02/23/2011 and again on 03/15/2011. She stated that the police report was accurate with the following corrections: She was sitting during the altercation and the defendant was standing. The defendant tried to grab checkbook from her and grabbed her wrists with both hands. In the process, the defendant punched her. The victim reported she was bleeding from the mouth, with a split lip and a swollen cheek as a result of the offense. She 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’. During her report on 3/17/2011,the victim reported she is in the process of planning a divorce.”
I can understand why this section of the report was meant to be confidential. Plain and simple, it did not want outsiders to know how my wife’s testimony is at variance with conclusions reached by the prosecutor’s office. Did I punch my wife or did I not? My wife told me that I had not punched her but that an injury had occurred as I swung my hands side to side while I was attempting to take the checkbook from her. No doubt, my wife told the prosecutor that but some “clarification” was needed to support the opposite conclusion: “The defendant punched her.” Instead of three or four times in the face as the police report said, this report now described the assault as a “single blow”. It also said "V (victim) states she loves her husband very much and wants contact."
The prosecutor’s report states, in one place, “She (my wife) does not think the defendant is a bad person or that he deliberately wanted to hurt her.” (That means that whatever injury might have occurred was not intentionally inflicted.) Later, the report states that “during (the) clarification ... she (my wife) admitted that he (the defendant) may have intentionally tried to hurt her but that she does not know because ‘it happened so fast.” You can almost hear the prosecutor arguing with my wife over the phone that she had to change her story. She had to say that I “intentionally tried to hurt her” because that is what the charges brought against me said.
The “no contact” order imposed upon me for a month now also made sense. It is not that my wife feared that I would assault her if I went go home again after being released from jail. It was that the prosecutor and judge feared that my wife and I would then be able to talk with each other. We could compare notes about the incident. There was then a risk that my wife might tell me, as she later did, that the police report was substantially inaccurate. Maybe my wife would want to recant her testimony. Maybe her recanted testimony would make fools of the police and the court. A recanting victim might then herself be prosecuted. Therefore, victim and defendant could not permitted to have any personal contact while the case against me was being considered. The dishonest show begun by the police had to go on.
I realized that my wife was every much a victim of the system as I was. Yes, I shouldn’t have tried physically to grab the checkbook. Yes, my wife shouldn’t have made the 911 call. But that’s water over the dam. Neither my wife nor I realized how dangerous it is for anyone to be brought into the criminal-justice system on domestic-abuse charges. This is no longer considered to be a dispute between a husband and wife but an offense against the state. The wife cannot drop the charges against her husband even if she wishes to do so. The show had to go on. The machinery of “justice” had to continue prosecuting people. There were people in the criminal-justice field needing to be fed. Follow the money.
my anger-management problem
Later in the afternoon, I phoned John Ganley, my attorney, to complain about being required to spend eighteen to twenty-four months attending anger-management classes. Ganley agreed that this period of required counseling was too long. He said that he would see if I could plead guilty to disorderly conduct or even ask for a trial before I appeared in court for sentencing in a week, on March 25th.
The issue of my problem with anger had been addressed in the departmental report in the following way: The “yes” box for anger had been checked; I had an anger problem. That is based on the following comment: “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.” Again, follow the money: Those anger-management classes are not free. ($350 was the first estimate I received.) Alternatively, you do not accuse the police of lying and expect to be let off scot free.
Yes, there had been a recent incident of violence during the night between February 17th and 18th, less than twenty-four hours before my arrest. My wife, who had been sleeping in another bedroom, woke me up around 4:00 a.m. to ask about checks that I had written from my checkbook. I refused to give her the information she wanted. She then began to pound on my arm with her fists. I did nothing. There was no injury, of course. It was just an expression of anger.
The same thing happened a month earlier when my wife and I were driving home after a visit to a government office. My wife was angry that she had gone to China for medical treatment when it now seemed easy to get assistance with one’s medical bills in the United States. My wife pounded me on the shoulder to express her frustration. I was not overly concerned: Anger happens. People are human.
The domestic abuse laws in Minnesota turn such incidents into crimes against the state. Yes, some men badly abuse their wives or female companions, but it is dishonest to assume that all arguments or altercations between a man and woman are of this nature or severity. The domestic-abuse laws are a product of gender politics. They are the source of nourishment for an entire industry in an era when productive employment in the United States is declining. They also have the unintended consequence of breaking up families.
A man is not wise to marry if the state will intervene during rough times in a relationship and future offenses are “enhanceable”. A woman who had her husband arrested once could easily do it again. He could be looking at prison time if she told the police she was afraid of him.
the week before sentencing
I was back in my home, able to communicate with my wife once again. Yes, it was true that my wife was often vomiting. That had to be our top concern. However, we were also planning to divorce. My wife had hired an attorney. I had not yet done so. During this period, I made a second proposal to my wife to settle the divorce case. Again, my offering was too little. When I asked my wife what she wanted, she said $250,000. I was sure she was joking or at least engaging in hyperbole.
In the meanwhile, my wife and I spent Sunday at the Mall of America. She had always wanted to go on the water slide and we finally did it. We also shopped for clothing at Sears. Shopping was one of the few activities that we could do together. Meals at restaurants were another. We drank Starbucks coffee at the Mall. Both of us wanted to enjoy our remaining time together.
My wife flew to Dulles airport near Washington, D.C. in the early afternoon of Tuesday, March 22, 2011. She would stay in northern Virginia with our daughter for a day and then fly to Beijing. Soon she would check in with her doctor and probably stay in the hospital while being tested for cancer. My wife had a cell phone in China. I was able to communicate with her in her apartment as she prepared for hospitalization.
On Thursday, I gathered with some old friends for an evening of chanting and poetry at a poet’s home. I told one of the men about my arrest for domestic abuse. The conversation continued as others entered the room. Another man said that he, too, had been arrested for domestic abuse. He had frightened his wife, leading to eviction from his home and eventual divorce.
This man also said, however, that he did not disagree with the domestic-abuse laws because some men severely abuse women. He gave an example. I started arguing that the domestic-abuse laws were unfair to both genders, but especially to men. Then another man said that he did not want to hear any more of my arguing. Another echoed that sentiment. I held my tongue, realizing how I was being viewed by others. I was not only a convict but a self-righteous one at that.
sentencing
When I called my attorney to discuss changing my plea, he said that he feared the court would not reduce the anger-management requirement even if I pled guilty to disorderly conduct. I had fears that I could no longer ask for my case to go to trial. I had already pled guilty the the charge and made admissions that were only partially true. Those statements to Judge Vasaly could be now used against me if the judge at Friday’s sentencing allowed me to change my plea.
The sentencing session again began in room 143 of the Public Safety Facility at 8:30 a.m. Again, the judge did not appear in the courtroom until 9:00 a.m. The judge in this session was Richard Scherer. He would not let me change my plea. Attorney Ganley hurriedly consulted with an employee of the probation department to see if the period of the anger-management sessions might be reduced. It appeared not to be possible.
Eventually, after consulting privately with the judge, my attorney worked out a deal that would allow me to travel to China to be with my wife once I had received the Chinese visa. I would be required to report to a probation officer in north Minneapolis, Anne Glidden, within forty-eight hours of returning to the United States. I would also be allowed to seek private counseling for anger management if the probation officer deemed it equivalent to what would normally be offered.
I paid the $200 in court-ordered costs for prosecution. Then I learned that there was also a $240 charge for probation services. I wrote a check for this service as well. Several days later, I called Ms. Glidden to see if I might introduce myself before the China trip. It was lucky that I called. She had scheduled a meeting with me for April 12th based on information received from the court. I pointed out that I would likely be in China on that date. Ann Glidden then scheduled the meeting for April 28th when I indicated that I would be back in town by then.
In short, I stood convicted of Domestic Abuse - Fear. However, the judgment was stayed for one year. If there was no repeat offense during that time, the charges would be dismissed. Meanwhile, I was placed on probation, having to meet all its requirements.
The judgment entered in this case ordered me not to commit a new act of assault or disorderly conduct while on probation. I would not be allowed to violate any Order for Protection, No-Contact order, Harassment order, or Restraining order. I was not to interfere with any emergency call. I was ordered to complete a domestic violence program or a private anger-management program or anger-management counseling if the probation officer agreed. I would be immediately allowed to travel to China but had to report to the probation officer within forty-eight hours of returning to the United States.
I signed the order form immediately below a statement that “I have read and understand the conditions of my sentence.” Judge Scherer also signed. The form was dated March 25, 2011.
Inexplicably to me, Judge Scherer also signed a “Firearms Order and Notice”. The findings of fact stated that “the defendant was convicted of a Violation of an Order for Protection, Stalking, or assault, where the assault was committed against a family or household member.” Based upon those findings, it was ordered that “the defendant is prohibited from possession a pistol for three (3) years from the date of conviction.” It would be a gross misdemeanor, punishable up a one year in prison and a $3,000 fine if I violated this order. The use of weapons was never an issue in the incident between me and my wife. I do not own a firearm and evidently will not for at least the next three years.
Now that my domestic-abuse case was laid to rest and the court fees paid, I could turn my attention to work orders issued by Minneapolis inspectors and possible condemnation of my house. I also learned on Friday, March 25th, that my wife’s divorce attorney had received papers for the Initial Case Management Conference. The divorce was scheduled to go to trial on April 15th.
It was time, I thought, for me to serve the Answer to my wife’s Divorce Petition. It was time to hire my own attorney to seek a postponement of the trial. It was also time to borrow more money from my banking line of credit and start writing some sizable checks. Then, eventually, I could prepare for the trip to China followed by an appearance in divorce court and a half year of counseling sessions to learn how I might deal with anger.
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