Order of Protections and Violations of Orders of Protections.
Stalking is bad. Let me make that clear right off the bat. It is scary and dangerous for the victim. I do not condone, but I want to discuss abuses by a victim on a defendant.
Getting a restraining order is not hard. There are advocates at court to help and unlike most filings, they are free. The order is civil in nature and not criminal in this case. The order basically says “don’t go here," or “don’t contact x." The teeth in this order is the Violation of an Order of Protection. A VOOP is a Class A misdemeanor.
This can be a problem with orders of protection. There was a time where families fought, the police were called and the aggressor, typically the man, was told to take a walk. This system was changed when the person would come back from his cool off walk to do even worse to the victim.
I have seen situations where a person alleged violence during a contentious divorce. This was done to curry brownie points in family court.
The reason I’m writing this article is because I was thinking about an old client. John Doe. John was involved with a woman who he was mildly interested in. They had a relationship for a couple of months and then he broke up with her under less than ideal circumstances. Nothing physical, it was just not the best break up in history.
She, Jane, was furious with John. She knew John had a custody hearing coming up for his kids and wanted to stick it to him. She ran to court and filed for an order of protection alleging John had threatened her and had driven by her property on one particular date. The Emergency order was granted within minutes.
John was served with the paper work and the case was set for hearing within 30 days.
John insisted that he never threatened her and showed me e-mails from her stating that she was going to ruin him. John also told me that he was having dinner with three people on the date Jane said he drove by her house. All three were willing to testify with a receipt from the restaurant.
We went to the first court date, ready for hearing with four witnesses and documentary support. Jane asked for a lawyer and the case was continued for a couple of weeks.
We went to hearing after a few weeks and Jane testified more or less as her order stated. I put on all of my witnesses. After fighting it out for a couple of hours, the Judge said that there wasn’t enough reason to have an order of protection and it would not be renewed. This meant that it wasn’t finished, it just would end in a couple of days.
That night John went out with a few friends to celebrate the win (no, I wasn’t there). He was afraid to travel alone because of Jane. Now, Jane lived about five miles away in a place that was 3-4 cities over. But, as John was walking home with friends in the alley behind his house he noticed her car pulling up. Jane drove by and flipped John off.
John texted me and I told him we’d deal with it if the cops called. The cops called. I spoke to the Detective in charge who admitted the case smelled like a set-up. He also said that he can’t let these cases go because he could get into trouble.
So we arranged for John to turn himself in before the Detective would go to his work and arrest him. John was arrested for a Violation of an Order of Protection.
The teeth of the order is the violation of an order of protection. This is a criminal charge that is a class A misdemeanor(you can find out what that means by clicking this). The State will prosecute this offense.
The State only has to prove that there was a proper order of protection and Defendant violated that order. They don’t have to go into the underlying reasons for the order. It is assumed an order was proper at the time.
John had been arrested for a violation of an Order of Protection. John was processed and we appeared for bond court. John appeared via video because he was still several floors below me in holding. I advised the Judge of the fact that Jane was in John’s alley. The Judge set an I-Bond for John, this meant he was let out and didn’t need to post any money.
We began planning our defense. As I stated earlier, the State has to prove a violation. Jane was in John’s alley. Our argument was that she was baiting a violation. There are certain cases where you cannot accept anything short of a not guilty or a dismissal. This was one of those. I don’t like wasting my client’s time on a case so we walked into court and demanded an immediate trial. Jane was also in court.
John was accompanied by two friends on that night. We brought both of them to court. When you typically answer ready for trial, the case is passed to the end of the call. This way a Judge doesn’t make a courtroom full of people wait for hours for the case to be tried.
While we waited I showed the State the order refusing to extend the order of protection, Google maps photos blown up for the Judge to show the distance between Jane and John’s homes and told the State that this was not a winnable case. The State looked this over and read the reports before speaking to Jane.
She came back and told me “she wants to proceed." Now, the choice of whether or not to proceed is up to the State’s Attorney. The theory is that a crime injures all of society and not just the one person. The one person may be the most important person, but the State literally represents the entire State of Illinois. That is the legal view.
The realistic view is that we all answer to someone else. I answer to my client and the Assistant State’s Attorney will answer to their boss. I remember this from experience. It takes some guts to dismiss a case. I have lived through being told, “we have to try it even if we’re going to lose it." The reason for this is simple: the State’s Attorney answers to the people. Therefore there is always an added political element.
In John’s case we were demanding a trial or a dismissal. The only real defense I had in this case was common sense. After talking to the State and the State spoke to the Detective in charge, she called me in the back to discuss. She told me that she didn’t think the case was winnable for her, but she also didn’t want Jane to create a stink. At the end of the day, you never know how a trial will turn out, all an attorney can do is his or her best. In a normal case, this is the point where I try to be evenhanded because you don’t know if you will win or lose. Being evenhanded means trying to plea to a less charge. This way both parties get a little of what they want.
However, most cases are not so lopsided in favor of the defense. I knew that we could never plead guilty for the simple reason that John was not guilty. I couldn’t plead and just led with, “then let’s just try the case." The State said she’d get back to me.
Ten minutes later, I’m preparing my witnesses for trial for the third time when the case is called. We rush back in and the Judge asks whether the witnesses are ready. The State chimes in and says the words that were weeks too late. The State said that after reviewing the evidence and discussing the matter with their witnesses, they are not proceeding on the case and they are dismissing the charge.
The Judge agreed and asked Jane if she agreed. Jane said yes. The Judge looked at John and told him to stay away from Jane. I grabbed his arm to let him know that he needs to keep his mouth shut when he’s winning.
After that we walked out and John has never seen Jane again as far as I know.
This case was rare and unique. Had we not won the order of protection hearing, we would’ve had a harder time in the criminal court.
A violation of an order of protection is a serious crime that needs solid prep work before hand. I talked about our court time, but I didn’t mention the hours and hours John and I spent discussing our strategy before we ever walked into court.