SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Virginia Criminal Defense Lawyer John Katz, where we are here to regularly present to you information and ideas for beating your prosecution as best as possible. Now your host, John Katz.

SPEAKER_00 0:15

Hello, everybody. This is John Katz. I'm a criminal defense lawyer and DWI defense lawyer in Fairfax, Virginia. You can reach us at 703-383-1100, and we're at beattheprosecution.com. As always, to date, we're here with our podcast master, Abigail Swigard. Hello, Abigail.

SPEAKER_01 0:36

Hello, everyone listening.

SPEAKER_00 0:38

What are we talking about today?

SPEAKER_01 0:41

Assault and battery.

SPEAKER_00 0:42

And why is that?

SPEAKER_01 0:44

Well, it comes up often, and sometimes people can be charged with alleged assault and battery against police officers or civilians.

SPEAKER_00 0:52

You know, Abigail, one of the things that I was happy about growing up, well, it was bitter and sweet, was having had fist fight experience. Uh my younger brother is about four to five inches taller than I. I'm 5'8 and he's about 6'1 or 6'2. Uh and I don't think anyone ever picked a fight on him because he was bigger, but I wasn't big enough. So I uh have fought with my mouth, but unfortunately, though, because of my smart mouth, that sometimes had people wanting to punch me when I was growing up. So I had to learn to fight with my fists as well, but I also learned to fight with my fists with my older brother and and uh people at summer camp and and school. Uh so that was a good thing. It made me more confident than I did martial arts. But if I did the same thing with getting into fist fights now as an adult, which it can also happen as a juvenile, I can get charged with a crime. Did you know that, Abby?

SPEAKER_01 1:51

Yes.

SPEAKER_00 1:52

Did you know that about me with uh my fighting experience?

SPEAKER_01 1:54

About the fighting experience, no. I only see you in court throwing punches, but not but not I didn't know about your prior experience.

SPEAKER_00 2:03

Well, also, it was interesting. I when I uh did my first martial art um lessons, that was uh Korean karate, taekwondo in um college. And the teacher was so great, he was Master Lee, and uh he uh he said to me one day, I said, Well, Master Lee, Master Lee, I've gone from a white belt to a yellow belt, and these belt colors are apparently a uh a Western idea, not an Eastern idea. When am I gonna learn the next uh the the next forms you know that match the yellow belt? And he'd say, be patient, do the practice, do the practice. He wasn't being lazy. The fact of the matter is that you know there's a lot of impatience among Westerners versus Easterners for doing martial arts, even with the Chinese martial art I do of Tai Chi. Uh I learned all of the the initial 17 postures within about three weeks, whereas if uh I was a student of the man who created who brought my uh form of Tai Chi over to the United States from Taiwan, I probably would have had to wait at least six months or a year for that. Okay, well now back to assault then. Yes, I was also asking you about uh your your your knowledge about my experience with assault cases. We get a lot of assault clients, don't we?

SPEAKER_01 3:21

Yeah, ranging from you know maybe alleged assault on a family member or assault on a law enforcement officer, see it all.

SPEAKER_00 3:31

Right. So assault means an offensive, unlawful, uh non-consensual touching of another person unless we have uh a legal defense to it. And be careful because just because you think you have a legal defense doesn't mean someone else does. So what is a reason why a person might not run away from a fight, like a bar fight?

SPEAKER_01 3:54

Maybe they don't have anywhere to run to, or like a safe area to get to. Um or it's an instinct, you know, the fight or flight instinct. Um, or they just don't have the opportunity. There's maybe there's multiple people surrounding them and they just can't get away.

SPEAKER_00 4:11

How about ego as well?

SPEAKER_01 4:12

Or ego, hubris, yes.

SPEAKER_00 4:14

How about want to scare the crap out of the other person to not bother you anymore?

SPEAKER_01 4:18

That's true, or maybe you have someone with you that you're protecting as well, and they can't.

SPEAKER_00 4:24

I think ego and wanting to do a preemptive uh fear factor about the person not wanting to uh bother you anymore are two big reasons why a person might not run away from a fight. Uh but those uh those two things are not defenses under the law. So the defenses are it didn't happen, some other dude did it, also known as Saudi, or some other dudet did it. I don't know. What's the political politically correct word for for dude for a woman? I don't know. But moving along, um misidentification, uh mistaken impression. No, you you no one touched you, it was the wind. Self-defense, which has to be proportionate to the assault from the other person, or or uh defending yourself uh physically against someone who pulls out a gun on you and and you kick them in the groin, which works more with guys than women, I guess. And then you have defense of others, and uh the other one is consent. Uh in the world of BDSM, uh bondage domination, sadomasochism. For whatever reason, a lot of people are out there who um enjoy that kind of activity. They have a code word, not no. So uh the idea is uh, you know, not uh don't stop whipping the person when they say no, uh, but stop whipping the person when they say bagels. You know, they they may not want to eat bagels, though, because they they may not get the bagel. Uh now, assault can run to the higher levels. We can have aggravated assault, uh, such as shooting a person, such as knifing a person, such as even punching the person in the nose and permanently maiming them, which then moves from a misdemeanor carrying up to a year in Virginia to a felony, which can carry many years in uh in jail in Virginia. And then, of course, what's the ultimate form of assault?

SPEAKER_01 6:21

Would that be murder?

SPEAKER_00 6:23

Oh, yes, because you can't have a murder without an assault. I mean, even if a person poisons the person uh to murder them, I think that's an assault. So now uh let's talk a little bit about. Well, we're we've been gone for about how many minutes? Over five minutes, so let's tell everybody how they can reach us.

SPEAKER_01 6:44

You can visit our website at catsjustice.com. That's K-A-T-Z. You can give our office a call at 703-383-1100. You can also give us a text at 571-406-7268.

SPEAKER_00 7:02

Now let's talk about starting a forest fire and things you can do to help uh reduce your risks when you're charged with assault. So often my assault clients became got charged with assault, not because someone else called the cops, but they called the cops. And so here's what happens person A calls the cops, tells the cops, Joe just hit me. I don't want to charge him with any crime, but just we keep Joe away from me. And then Joe says to the cops, Joe didn't uh, I'm not the one who assaulted Jim. Jim assaulted me. This is akin to running to the uh court magistrate to be the first one to complain. So let's say if there's a fist fight, Joe causes the fist fight. Once the fist fight's done, the fist fight between Joe and Jim might find Jim and Joe running to the court magistrate to claim the other person assaulted them with the idea that maybe the prosecutor believes the person who ran over to the magistrate sooner. Did you know that, Abby, that in Virginia a person can get a misdemeanor charge against someone else without the cop even being involved? Just go to the court magistrate and say, Jim hit me.

SPEAKER_01 8:15

That's wild.

SPEAKER_00 8:17

Terrible.

SPEAKER_01 8:17

It's all hearsay and she said he said.

SPEAKER_00 8:20

And a reason for that is that police are not permitted in general uh to arrest someone uh for many types of crimes if they didn't witness it themselves. Now, um I also want to address, so let's say uh Jim calls the cops on Joe, and Joe really did assault Jim, and Joe is uh prosecuted, and then Jim decides I don't want uh I mix up the Joes and the Jims. Okay, let's we'll fix it. Jim is the assailant, Joe is the uh victim, but now Joe doesn't want Jim after all to be prosecuted, and guess what happens when Joe calls up the prosecutor's office and says, I want the case dismissed.

SPEAKER_01 9:06

It's they can keep going.

SPEAKER_00 9:08

It's like a forest fire. You make a forest fire and you can't turn off that forest fire. So the ideal way to do it here, then, and it gets a little more expensive than otherwise, is we have Jim hire a lawyer. Joe hires his own lawyer, and uh if Joe has no incentive to hire lawyers, so Jim is permitted to pay uh for Joe's lawyer, just as long as Joe gets choose the lawyer he wants. And here's what happens Joe's lawyer tells the prosecutor that uh Joe wants the case dismissed. And if the prosecutor says, tough poopy, we're still going forward, then Joe's lawyer can say to the prosecutor, if you put my client on the witness stand, if you put Joe on the witness stand, he's gonna assert his Fifth Amendment right to remain silent under the United States Constitution. And when the prosecutor says, why would a victim of the crime do that? What kind of uh lie would the victim of the crime have committed unless Joe had told a lie to the police that Jim assaulted him? Well, let's say that Joe actually was assaulted by Jim. Uh Joe calls the cops, Joe's all excited, and Joe might make a misstatement. It reminds me of the time that I was driving back from Las Cruces, New Mexico, over to Albuquerque. Did I tell you this one?

SPEAKER_01 10:25

I don't think I've heard this one.

SPEAKER_00 10:26

Okay, good. I'm happy when I don't repeat uh stories to my staff. I had a job interview with the federal public defender in Las Cruces, New Mexico, which would have been a cool job except for the snitch work that's always involved with federal public defender work, but it wasn't exactly in the best part of New Mexico. I like Albuquerque better. And uh I was about 60 miles from Las Cruces, uh away from there, going towards Albuquerque, and there was a border patrol uh checkpoint. Did you know, Abby? Well, you've lived in Arizona, so you may know this. You can have border patrol checkpoints 60 or even 100 miles inland uh from the nearest border with another country.

SPEAKER_01 11:03

Yeah, I've seen a few.

SPEAKER_00 11:04

And so uh there's a car in front of me, and I'm tired. It's around 11 o'clock at night now. My friend in Albuquerque is gonna let me stay in his home uh overnight. I'm still uh still two hours from Albuquerque. And the uh border patrol agent said to me, Is this your own car or is it rented? And I said, I own it. I realized, my gosh, I'm a criminal defense lawyer, and I told uh something that wasn't acting, and I quickly changed to, no, it's a rental, because I was just so irritated being with the guy here. I just want to keep going. And I was irritated at the Supreme Court saying you can have these kind of checkpoints. Now, if I, as an exceasoned criminal defense lawyer, could have made that mixed statement, yes, Joe could have made misstatements to the cop and not even have known it. So what happens is just because Joe gets up on the witness stand and says, I'm uh I'm asserting my Fifth Amendment right to remain silent for every question you ask me about what happened with Jim, the judge gets to decide after each question whether that's uh whether Joe doesn't have to answer the question. That's based, at least in Virginia, uh, on whether answering the question could tend to incriminate Joe, uh, at least if Joe had told something different to the cops. Now, let's say that uh Abby the Jim admitted to the cops that uh that he assaulted Joe. And let's say Joe doesn't testify. Is Jim out of the woods?

SPEAKER_01 12:27

Not yet.

SPEAKER_00 12:28

Because?

SPEAKER_01 12:29

Because they can use his testimony that he told the cops.

SPEAKER_00 12:32

Exactly. When we were learning haiku uh Japanese poetry in second grade, I thought it was boring. Five syllables, seven syllables, five syllables. Five syllables, seven syllables, five syllables. That's how boring I was that's what that was my chant to myself. Just this boring monotone thing. And of course, some some haiku can be shorter. But the great thing about haiku, when I talk to my clients about it, don't speak to the cops more than in a haiku. And even that's too much. My favorite reference to what to do with cops and talking to them is to have proverbial crazy glue on your lips. Because if you crazy glue your lips, do you know how to get your lips apart if you put crazy glue on there short of using a razor blade?

SPEAKER_01 13:16

Probably ice, I think.

SPEAKER_00 13:18

No, it won't taste good. Acetone! Nail polish remover.

SPEAKER_01 13:22

Ooh, yeah.

SPEAKER_00 13:23

Now, well, speaking of the ice, uh, I don't know the answer to this, so here's a little joke here. If a person puts their tongue on a on a freezing metal pole uh outside, and it's 10 degrees out, how do they get their tongue unstuck?

SPEAKER_01 13:37

They gotta warm it up, I think.

SPEAKER_00 13:39

I suppose you've got to put some some warm water on there. Okay, well, how much of a tangent I have going on here? Silence, silence, silence. This is a theme that we talk about all the time on the show. You have the right to remain silent with police, you have the right to insist on not talking without a lawyer, you have the right to refuse searches. You don't you do that passively by saying, I do not agree. And make sure it's clear. Don't let the cops say, Oh, he says he said I don't agree. I heard himself him say I agree. So be as clear to the cops as possible when you assert your rights. Okay. Well, let's say, Abigail, that Joe decides that he wants Jim prosecuted. And let's say that Jim actually did assault Joe. What does Jim do?

SPEAKER_01 14:28

Well, he needs to first find a good lawyer that has experience with, you know, assault and battery cases, and then because they need to start working on their defense of what transpired between Jim and Joe. Was it the self-defense or what angle it was?

SPEAKER_00 14:47

That's right. And uh do you know how much assault defense experience I have?

SPEAKER_01 14:53

A lot, many years.

SPEAKER_00 14:54

I have defended hundreds and hundreds of assault defendants successfully. I've probably taken over 50 or 80 assault cases to trial. And it can be uh nerve-wracking on the defendant not knowing if they're gonna win or not, and what their sentence might be. And if someone has a security clearance, they do not want an assault conviction. And it's not just security clearance, it goes to reputation, what might happen with your prospects academically, what might happen with your prospects with jobs. So let's say Jim was our client. Uh I would say to Jim, Jim, you gotta show that the gym on the day of the alleged assault is not the same gym on the day of court. And so what would I tell Jim about that?

SPEAKER_01 15:37

Um, any self-improvements to do to show that the court that he's been doing things, counselings, things like that.

SPEAKER_00 15:45

Right. So I would commonly recommend to an assault defendant client to do the following, at least if uh they're not going to be able to convincingly and honestly say on the witness stand that they didn't do it. First is to do an anger management class, and I have a couple of good ones to refer to my clients, including at least one that's online. The second one is to do a massive amount of volunteer community service, voluntary community service. Uh I would prefer 40 to 50 hours, get that documented on our website, catzjustice.com slash community. You'll see ideas galore that can apply nationwide. Catsjustice.com slash community. We haven't figured out yet with our webmaster how to use beat the prosecution.com slash community, but we'll deal with that eventually. I also say if you're willing to pay a few hundred bucks, at least if you've got a local case, well, actually, this uh psychologist I work with, he'll meet by Zoom, so he can do this nationwide. I like to have my clients get a psychological evaluation and prognosis to say the extent to which they are not likely uh to commit the crime that they're accused of now in the future. And that applies often to even plenty of cases that are not just assault. And uh, I also say that if they can afford it, and often this is part of a person's health insurance anyway, get two to four psychological counseling sessions dealing with alternatives to uh acting out physically in anger. Um now, Abigail, what do you what else do you think that the audience might want to know about assault defense?

SPEAKER_01 17:20

Well, I always hear about cases if the individual who's alleged the assailant, if they had experience in fighting, like let's say they were a boxer or professional, would that come into play?

SPEAKER_00 17:34

Well, I that could go to consent. I mean, if if you have I I remember uh a Japanese friend tell who does uh Kyokushin karate telling me that when uh people fight in Kyokushin karate, it's easy to break someone's nose, break their bones. So this goes to the consent aspect. Now, of course, if the person knows martial arts and they're beating up on someone for one thing, most martial arts I know of, at least the Eastern ones, are supposed to be about self-defense, so not using it offensively and only using it defensively. Is that responsible or was there not an aspect of it that I didn't answer?

SPEAKER_01 18:07

Um, I think maybe could it aggravate virtually if it's experience?

SPEAKER_00 18:13

Oh yeah. It it it's it's like uh if you have an assault case uh by a 500-pound uh sumo wrestler uh and his victim is a three-year-old little child, of course. So as much as I don't like some of these uh boring and annoying uh sayings from the the high school principals, uh one thing that they did say, and I guess the teachers would say to my son Elise, is um wait, what no? When I was at school, it was like keep keep your keep your f hands and feet uh to yourself. I forget what they say now, but it is true. Uh you'll thank yourself in the morning. If if you really think that uh uh Joe or Jim deserve uh a whacking, uh and of course there's different types of whacking, right? The whacking with your fists and the whacking killing them. Give it at least 24 hours, okay? I cannot, as a lawyer, tell you that it's okay to assault someone unlawfully, but what I can say is if you give it at least 24 hours before slugging someone in the face, you're more likely not to do it at all. Abigail, thank you so much again. This is, I think this is our sixth show.

SPEAKER_01 19:25

Yes, number six.

SPEAKER_00 19:27

Everybody, if there are any topics you would like us to cover, let us know. If there's any questions you have, let us know. Abigail, where can our listeners reach us?

SPEAKER_01 19:36

Catsjustice.com or give our office a call at 703-383-1100. Or our texting number is 571-406-7268.

SPEAKER_00 19:51

And what is our email address?

SPEAKER_01 19:53

Info at beatheprosecution.com.

SPEAKER_00 19:56

And the only time I like to say catsjustice.com is for any URLs that aren't beat the prosecution. So my favorite URL for us is beat the prosecution.com. Thanks everyone for listening. We'll see you next week.

SPEAKER_01 20:08

Thank you for listening to this week's episode on Beat the Prosecution. This is a regular podcast trying to give a people a leg up against police investigations and court prosecution. We welcome your contacting us at info at beat the prosecution.com and at seven zero three three eighty three three three three three one one zero zero.