Legal Question in Criminal Law in California

Re: Question re: terrorist threat charge.

The prosecutor must see this as a domestic violence situation, and in cases like that it is quite common for the victim to change her story later in an effort to stop the prosecution -- usually because she fears what will happen if he is put on trial and acquitted. Sometimes it does turn out that the initial report was false or at least greatly exaggerated, but most of the time the initial report is the more reliable version of what happened.

I can't say whether your nephew's girlfriend was telling the truth then or is telling the truth now, but the prosecutor is obviously skeptical about her change of heart.

Contrary to popular belief, the victim of a crime does not have the power to dismiss the charges. Whether to do so is the prosecution's call. In some situations the prosecutor will yield to the victim's wishes, but this happens less often in domestic violence prosecutions than in other cases.

The girlfriend's statement that she is not going to testify also doesn't count for much, since that is what subpoenas are for. The prosecutor can make her come to court and testify whether she wants to or not.

You ask how your nephew can be prosecuted without a witness, but even if his girlfriend somehow doesn't testify there may be other witnesses who can provide enough evidence to support a conviction.

Should you hire a private attorney to replace the public defender? That depends on whether you can afford to. Public defenders are generally very good attorneys who zealously represent their clients. The problem is that they are overworked and cannot give as much time to each case as a private attorney usually would. A good attorney who puts less time into a case is less likely to win than an equally good attorney whose time is not so limited, so you might want to make a change if you can. At a minimum, you should at least sit down and talk with some defense attorneys to see what they think of the case and how much it would cost to retain them.

Re: Question re: terrorist threat charge.

Thank you for your posting, and the opportunity to serve you further.

It certainly sounds as though you would benefit from the guidance and education of a defense attorney. Not only is there somewhat of an incentive on the PD's part to "just get a defendant to plead guilty", but the PD often doesn't have time, with their other caseload, to empower you with information on what can and cannot be done.

For example, many prosecutors, including those in Riverside county, have a "No Drop Policy. (See the article by Angela Corsilles, "No Drop Policies in the Prosecution of Domestic Violence Cases: Guarantee to Action or Dangerous Solution?," Ford. L. Rev., December 1994, Sections I & II)", and have done so more aggressively since the OJ case 10 years ago.

A no drop prosecution policy can be a statement declaring that the state will not drop a terrorists threats or other case due to victim nonparticipation and include a practice and protocol for enforcing that statement.

Legally, policy or not, once charges are filed, the state, and not the victim, becomes the party. The prosecutor controls the direction of the prosecution; the victim cannot, for instance, decide to drop a case.

Under many policies, prosecutors often are directed to pursue most cases notwithstanding the reluctance of the victim.

In San Diego, California, for example, the City Attorney's official policy states that the prosecutor will request an arrest warrant if a subpoenaed victim fails to show up in court.

In cases where other corroborating evidence, such as 911 tapes, photographs, medical records, and neighbors' or relatives' testimony, is available and deemed sufficient to prove the case, the prosecutor maunot request a warrant.

I hope that this information helps, but if you have any other questions, or feel that you need legal assistance, please feel free to email me directly, at [email protected]. It's my pleasure to help in any way that I can.