Ray McDonald (49ers) domestic violence

[Alan]

12intheBox with his professional take on the subject:
Hi. I'm a criminal defense attorney. This is what I do for a living, and while I have mostly burned out at this point and spend most of my time on football these days, I have a ton of real life experience in exactly what we are talking about here. What your web searches are telling you is that it is not up to the victim whether prosecutors pursue charges against a defendant. I get that. In fact, that isn't the exception these days - that's how it works in most (but not all) jurisdictions across the country.

What your web searches are not telling you is that criminal prosecutions still involve the rules of evidence and our constitutional protections - in this case, our 6th Amendment right to confrontation.

Yes, if the state can make it's case without victim testimony - they can prosecute the heck out of this guy - even if the victim is kicking and screaming for them not to do so. But it is really hard to prove a DV case without victim testimony UNLESS the defendant confessed, someone else who is willing to testify saw the assault, or the victim made a "non-testimonial" statement to the police which is deemed admissible as a present sense impression or some other exception to the hearsay rule. (Really, really, really rare) - it would need to be something like the assault was taking place while the girl was on the phone with 911.

I was under the impression that the physical evidence of an assault, especially in child abuse cases, can be enough for a conviction.

 

[12intheBox]

Physical injury is evidence that an assault took place, but it doesn't explain who did it.

Now, if McDonalds knuckles were bloody .....

 

[Mike]

LOL I had already figured that out. (That you are an Attorney) I don't hold it against you though. I am kidding of course, you being a Rams fan cancels out the Attorney part. Again I'm joking with you. Once you quoted case law I knew it.

 

[…..]

unfknbelieveable. Wash away your career and your future....

 

[Mike]

Physical injury is evidence that an assault took place, but it doesn't explain who did it.

Now, if McDonalds knuckles were bloody .....

I didn't mention it when you asked about responding to a DV call but taking pics of the suspect would be part of the initial investigation. That would include checking his hands for injury.

 

[Mackeyser]

All very true. And I appreciate your expertise.

That said, we're seeing every day how courts are making that exception to the hearsay rule less rare, how DV cases are becoming more successfully prosecuted, even for people with money.

And this is the reason the laws were written this way... abusers have no absolute right to "confront" victims. That's a misuse of the 6th amendment. Just as we have no absolute right to free speech, no absolute right to assembly, etc.

When the abuser shows up in court, he IS confronting his accuser... the DA. The victim is not the accuser, so the 6th amendment doesn't apply.

And, as you know, there have been plenty of successful DV prosecutions that have taken no victim testimony, i.e. the woman is unconscious, comatose or catatonic at the time of arrest and subsequent interview(s) deem her unreliable or uncooperative as a witness by the DA. That's not unprecedented.

Now, the sad reality is that Ray McDonald will undoubtedly have VERY expensive representation and will most likely walk with probation because the legal system in this country is the best money can buy. Literally. As you must know better than I, money buys outcomes way more often than not.

However, the NFL won't let that go and the evidence presented will be more than enough to get him the full wrath of the Commissioner. What's real about this is that the lighter the sentence he gets in court, the worse the backlash will be and the harsher the call will be for the harshest possible outcome from the NFL.

 

[12intheBox]

I didn't mention it when you asked about responding to a DV call but taking pics of the suspect would be part of the initial investigation.

Those pics still don't prove that the defendant did anything.

 

[Jwise1727]

49ers implosion on defense continues...this team is not nearly as scary as they have been in previous years. I'm curious to see how this division (now called considered the best division in football) responds. Every team in the division has suffered key losses whether it be on offense or defense.

 

[Mike]

Mackeyser? Are you an Attorney?

 

[Mike]

Those pics still don't prove that the defendant did anything.

True, but a good investigation will help to prove a case in court should it get that far. Maybe he cops a plea...we will have to see. And like I said...at the end of the day he got booked for it and will get his day in court.

 

[12intheBox]

All very true. And I appreciate your expertise.

That said, we're seeing every day how courts are making that exception to the hearsay rule less rare, how DV cases are becoming more successfully prosecuted, even for people with money.

And this is the reason the laws were written this way... abusers have no absolute right to "confront" victims. That's a misuse of the 6th amendment. Just as we have no absolute right to free speech, no absolute right to assembly, etc.

When the abuser shows up in court, he IS confronting his accuser... the DA. The victim is not the accuser, so the 6th amendment doesn't apply.

And, as you know, there have been plenty of successful DV prosecutions that have taken no victim testimony, i.e. the woman is unconscious, comatose or catatonic at the time of arrest and subsequent interview(s) deem her unreliable or uncooperative as a witness by the DA. That's not unprecedented.

Now, the sad reality is that Ray McDonald will undoubtedly have VERY expensive representation and will most likely walk with probation because the legal system in this country is the best money can buy. Literally. As you must know better than I, money buys outcomes way more often than not.

However, the NFL won't let that go and the evidence presented will be more than enough to get him the full wrath of the Commissioner. What's real about this is that the lighter the sentence he gets in court, the worse the backlash will be and the harsher the call will be for the harshest possible outcome from the NFL.

I'm sorry, but that's just not the way it really works. The prosecutors don't testify - and state laws are not allowed to erode the constitution - and for good reason.

I have certainly seen people convicted without victim testimony - but always with additional evidence (usually a confession) / but I have seen waaaaaay more clearly guilty people walk because the victim wouldn't play ball.

 

[Mike]

Is the dead horse whipped yet? LOL

 

[Alan]

The main point here about the way the law is written is that the state "knows" that there is an extremely high probability that the spouse did the assault.

In civil cases it doesn't have to be proven beyond a shadow of doubt and when we're talking about what the NFL should do, I'm totally OK with a preponderance of the evidence showing he did it. I don't feel that is an assault on our constitutional rights or even unfair which is what Les and I were talking about. I think. At least that is what I was talking about.

 

[12intheBox]

Is the dead horse whipped yet? LOL

It is for me. Good night, Rams fans.

 

[Mike]

It is for me. Good night, Rams fans.

Good night....

 

[Mackeyser]

Attorney? no. Service-connected disabled vet and retired multimedia engineer. I read and study a lot. Several attorney friends have said I missed my calling and should have been a litigator. I'm not sure they meant it as a compliment...LOL. kidding...

@12intheBox I know prosecutors don't testify. But that's their role in "crimes against the state". That's all I meant. The prosecutor fill that role so that a law can fulfill the 6th amendment test when the state steps in and writes laws like DV laws.

And yes, DV is an ugly business. I know attorneys on both sides and no one likes it. It's sort of an "everyone loses" affair. That said, all I was saying is that the trend is toward where it should be.

I absolutely don't doubt for a second that you've seen guilty people walk with or without victim testimony.

 

[ReddingRam]

It's California. The victim does NOT have to testify. It's based on jurisdiction. In CA, unless I'm recalling inaccurately, I lived there most of my life, DV is a "crime against the state". I forget the term. Victims don't have to testify.

This is true

 

[LesBaker]

First of all, it's nice to talk to someone with an actual name Mike.

Maybe, I can only type what I heard but other than the spelling, is there any practical difference?

I'm about to hit that inappropriate button.....

 

[Alan]

LesBaker with a real name too:
I'm about to hit that inappropriate button.....

:bow: :cheers:

 

[Prime Time]

Ray McDonald will play for the 49ers this weekend
Posted by Darin Gantt on September 5, 2014, 4:04 PM EDT
http://profootballtalk.nbcsports.com/2014/09/05/ray-mcdonald-will-play-for-the-49ers-this-weekend/

Getty Images

The 49ers are not kidding about due process.

According to Matt Maiocco of CSNBayArea.com, 49ers coach Jim Harbaugh just told reporters that defensive lineman Ray McDonald will accompany the team to Dallas and play this weekend against the Cowboys.

McDonald was arrested on a domestic violence charge, and Harbaugh has proclaimed emphatically that any player found guilty of such a crime would not play for him. But they’ve also given McDonald the temporary benefit of the doubt that comes from “innocent until proven guilty,” allowing him to play.

Also for the 49ers, right tackle Anthony Davis is out this week, meaning Jonathan Martinis in line to start. They’re also going to activate Alex Boone, who returned this week after a camp-long holdout.

All the shuffling up front might not matter against the Cowboys, and the constant questions about their line will continue until they can perform better than they did in the preseason.