From the blog of Atty. Dmitry Lev, Esq. ~ Expert in Restraining Order Defense

Raising the bar on the horrors of 209A

Posted on October 12th, 2008, by Dmitry Lev

Last Monday’s episode of the new TNT courtroom drama “Raising the Bar” briefly put into spotlight the potentially disastrous consequences of domestic restraining orders imposed upon families by the prosecutors and the courts. Before launching into the story, I must remark that of all the courtroom shows on TV these days, I find Raising the Bar to be the most realistic portrayal of the challenges encountered in the day-to-day life of criminal defense attorneys, especially public defenders and those who accept court-appointed cases.

As the episode goes, one of the several interweaving plot lines was that of an alleged domestic assault and battery by a husband upon his wife. The allegation was that the husband threw a mug at her; a neighbor heard the commotion and called the police. We come to find out that the couple are artists and that this mug-throwing is accepted by both as a form of expression that is not only normal, but even necessary for their art.

At arraignment, the judge orders the husband not to return to the marital apartment and to have no contact with the wife at least during the pendency of the case. The wife is present in the audience during the hearing, and when she tries to speak up in her husband’s defense, the judge tells her to be quiet.

Just a few minutes after the conclusion of the hearing we find the husband and wife chatting it up in the hallway of the courthouse happy to be reunited after the husband’s overnight arrest. The husband’s defense attorney runs over, separates the two, and sternly warns her client that should the prosecutor learn of their contact, more trouble would be on the way. She advises him to stay at a men’s shelter, which he says might as well be prison.

The wife makes a good faith attempt to speak to the prosecuting attorney in an effort to persuade him to drop the case. In turn, he lectures her about battered women and asks for her cooperation before handing to her the complaint for her signature. In the wife’s words to the prosecutor, “Screw cooperation and screw your complaint!” She walks out without signing it.

The next morning we find the husband arrested again, this time for punching a police officer. It turns out that someone, likely the prosecutor, suspected that the husband might return to the apartment, thus violating the restraining order imposed by the court, so the police are sent to the apartment to check up on who might be there. When the husband is discovered at home, a struggle ensues, and the husband is arrested not only for a violation of the restraining order, but also for assaulting a cop.

The husband is held on a $10,000 bail which neither he nor his family are able to post. He tries to have a frank conversation with his attorney, but she must break the bad news to him that he is likely looking at a 4 year sentence for assaulting the cop, and that the restraining order would remain in effect the entire time, meaning his wife would not even be able to visit him in jail. To add massive insult to an already painful injury, the restraining order would remain in effect for three additional years after his release from jail. In short, the reality is that he would be unable to be with his wife for seven years… his wife, who begged the police not to arrest him both times, and who begged the prosecutor to drop the case — which he flatly refused to do.

We learn that the husband hanged himself in the jail cell the very next day.

The episode ends with a heated exchange between the prosecutor and the defense attorney about the destroyed lives and tragedies that arise out of the state imposing blanket rules on couples that never asked for help; rules that are heftily and swiftly punishable when violated, and all according to the prosecutor’s own version of “justice.” “All I care about is the odds,” said the prosecutor, implying that while in this particular case the husband might not have been abusive per se, in the vast majority of other similar assault cases the woman would have been better off with the court’s protection. In other words, the prosecutor thought he did the right thing.

Sadly the story is not at all unrealistic, and while the New York version of these domestic restraining order laws has its differences from our own 209A Orders here in Massachusetts, the destruction wreaked by them is very real, just as damaging and just as permanent as the seemingly fictional story portrayed on the show — a story that pull at the heart strings of all too many in Massachusetts whose lives took tragic turns for the worse thanks to the “help” of the prosecutors who in their blind and naive ignorance seem to think that they know better.