Saturday, March 12, 2011

Madison County drops charges in violent domestic case

In reviewing police reports and potential criminal cases a prosecutor must balance the severity of the crime, the deterrent effect of a prosecution, the likelihood of a conviction, the resources that must be expended, the wishes of the victim(s) and what will ultimately best serve the community.

In the case where Brandon Galbraith attacked Craig Scarberry during a parenting time exchange these factors are all in play to varying degrees. Initially, Mr Galbraith was questioned by police and denied the accusation but eventually admitted to the crime. He was subsequently charged with a Class A misdemeanor battery. However, on 10 March 2011 the charges against him were dismissed without prejudice. Thus, the charges may still be refiled, which is my intention and I will explain why after some further background on the role of a prosecutor.

The prosecutor has absolute discretion on whether to file charges. The concept of prosecutorial discretion is long held and well known in our system. See, e.g., State v. Winne, 12 N.J. 152, 172-74 (1953). The decision to prosecute "generally rests entirely in [the prosecutor's] discretion." see Bordenkircher v. Haves, 434 U.S. 357, 364 (1978). This discretion is especially firmly held by the criminal prosecutor. see Oyler v. Boles, 368 U.S. 448 (1962); Newman v. United States, 382 F.2d 479 (D.C. Cir. 1967); Powell v. Ratzenbach, 359 F.2d 234 (D.C. Cir. 1965).

The prosecutor is vested with this power through the executive branch of the government. The separation of powers provides that "[a] judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them." see United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir.1992).

The prosecutor still acts in a quasi-judicial role though. The prosecutor must balance the wishes of the victim against protecting the rights of the accused. He cannot be an advocate solely for either. The United States Supreme Court in Berger v. United States, 295 U.S. 78, 88 (1935), declared:
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer."

In the case at bar we have a scuffle between two adult males. It went beyond a simple barroom shoving match in which Mr Scarberry, although he made a hospital visit at a cost of $4,000, was not permanently disfigured or disabled. So there are certainly crimes out there that may be of greater importance in prosecuting based simply on an offense level. However, I believe there is a clear distinction in this case.

The children's mother, Christine Porcaro, began an antagonistic relationship with Craig a year ago when Glabraith came onto the scene. Scarberry's first interaction with Galbraith was a series of text messages wherein Galbraith tried to establish his dominance and taunted Craig to come over and see what happens. Soon after, Craig obtained an ex parte order for protection against Galbraith which he ultimately dismissed in an effort to promote civility between the three adults.

Galbraith would have none of it and continued to cause disturbances in front of the children in addition to continuing the pattern of harassing text messages.

There were some unique circumstances surrounding the 11 November 2010 attack. Typically, Galbraith would drive Christine to the parenting time exchanges, which had been taking place in public areas, while she managed the children. However, on this date, Christine sent a text to Craig asking him to come to her house for the exchange. Craig declined and instead insisted on meeting at McDonald's. Porcaro at that time had an order for protection against Scarberry which prevented him from coming to her home.

There is where Galbraith, who was in the passenger side of the vehicle, exited and attacked Scarberry as he approached the vehicle. It is my belief, based upon these subtle changes in routine, that Porcaro had planned this attack with Galbraith. Porcaro has essentially committed an act of domestic violence through a surrogate. Moreover, the children were in the car and witnessed the attack. Although terrorized and crying, Porcaro did nothing to stop the attack or assuage the children's anxiety. Had Porcaro actually committed the physical attack rather than direct someone else to do it the offense would have been a felony.

This is the compelling reason that I believe this case should be prosecuted. Adamson and Thompson (1998) found that children from homes in which there were domestic violence were nine times more likely to use verbal or physical aggression to intervene in parental conflict than were children from violence-free homes (27% vs. 3%). Porcaro is teaching these children that conflict should be resolved through violence.

I am not asking that bed-space be reserved for Mr Galbraith at the Madison County Jail. I could be satisfied with less than a plea-bargain. Considering his admission to the police of the elements of the crime I think Mr Galbraith would be well-informed to accept pre-trail diversion in this matter.

Here is some information about pre-trail diversion.

The National Association of Pretrial Services Agencies Standards on Pretrial Diversion describes pretrial diversion, also called pretrial intervention [PTI], as a dispositional approach that has the following elements:
1) It offers persons charged with criminal offenses alternatives to traditional criminal court proceedings;
2) It permits participation by the accused on a voluntary basis;
3) It occurs no sooner than the filing of formal charges and no later than a final adjudication of guilt; and
4) It results in dismissal of charges, or its equivalent, if the divertee successfully completes the diversion process.

John Clark of the Pretrial Justice Institute describes the diversion process in the following way. Eligible defendants will apply for admission into pretrial diversion. They will be screened by a pretrial diversion program and a decision made by either the prosecutor or the court to accept or deny the application. If accepted, participants enter into an agreement, usually with the prosecutor but in some jurisdictions with the court, to abide by certain terms, such as attendance at counseling, community service, or restitution to victims. Their criminal case is held in abeyance while they are in the diversion program. If they abide by the terms within the diversionary period the charge is dismissed. If they fail to do so, the diversion is terminated, and their case is reinstated to the court docket for prosecution.

On Friday 10 March 2011 Mr Galbraith appeared at a hearing on a Petition for a Protective Order. There he was placed under oath and testified. Much of his testimony directly contradicted that of Craig Scarberry, the information in the police report and the report of Child Protective Services. It is my firm belief that he perjured himself in that proceeding.

This included his testimony that Craig initiated the attack and that Galbraith was only defending himself. He also testified that there were no other incidents of his being in a physical altercation with Scarberry. Likewise he denied that there was a pattern of intimidating or threatening communication. Yet, I have read the texts and prior Protective Order.

If, as Mr Galbraith claims, this was one isolated incident in which he was just defending himself then pre-trail diversion would be appropriate. Rather than dismiss the charges I believe that the prosecutor, Rodney Cummings, should offer pre-trail diversion to Galbraith.

Cummings and I spoke briefly on Friday. Actually it would be better characterized as he listened to me. As much as I don't agree with much of the way the judicial system operates in Madison County I must commend these public officials for always calling me. Cummings informed me that he would look into the case again.

Cummings has to make a choice; will he honour the will of the people who want to see children protected from exposure to violence like this, or, will he give the green light to people who have yet to be convicted to keep continuing their criminal activity?

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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.

©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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