Stalking is a damning accusation that needs fighting tooth and nail, says Fairfax criminal lawyer

Stalking prosecutions rear their ugly head all too often. As a Fairfax criminal lawyer, I slayed not only such a prosecution, but also the parallel protective order trial that followed in the Fairfax courthouse. Acquittals are not a given, and protective order trials are harder to beat than parallel criminal trials, because the law bars a criminal conviction without proof beyond a reasonable doubt, whereas a protective order gets issued by proof only of preponderance of the evidence, meaning more likely than not, or tipping the scales only slightly to the benefit of the petitioner / plaintiff. If you are a Virginia stalking, assault or protective order defendant, fully prepare well in advance for your trials as a team with the best possible lawyer you can obtain. Following is details of how I won this Fairfax criminal trial and protective order trial.

No matter how much Virginia’s stalking statute chills protected speech and actions, such prosecutions must be defended with a full frontal assault

The language of Virgina’s stalking statute can offend anyone who values protecting wide ranging free expression and freedom of action. That does not change that this statute is on the books and must be fully defended. This statute mainly provides that: “Any person… who on more than one occasion engages in conduct… directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person… is guilty of a Class 1 misdemeanor. If the person contacts or follows or attempts to contact or follow the person at whom the conduct is directed after being given actual notice that the person does not want to be contacted or followed, such actions shall be prima facie evidence that the person intended to place that other person, or reasonably should have known that the other person was placed, in reasonable fear of death, criminal sexual assault, or bodily injury… Virginia Code § 18.2-60.3. The most civil liberties-offensive part of the foregoing statute is the prima facia evidence of culpability by contacting a person who says not to, particularly where no exception is made about contacting government officials and public personalities to air grievances about the actions of them or their organizations. 

Conditionally saying “do not contact me” except about our child, does not trigger the statute’s prima facie clause

In this day and age of so many divorces by couples with children, my client’s estranged spouse filed a complaint that my client stalked her, with a Fairfax magistrate, centered on complaints that numerous of my client’s texts and emails to her deviated from her prior insistence that he only communicate with her about their child, and that he tried talking with her at a retail store. First, it can take courage for a Virginia criminal defendant to go to trial if the prosecutor offers a disposition more favorable than if convicted of the case being prosecuted. Second, if you are going to go to trial, make sure that your lawyer is fully armed (proverbially) as necessary, and that your attorney knows how and when to use and sheathe each of those weapons. Going to trial like a bull in a china shop does not trigger it. Going to trial to impress without obtaining an acquittal does not cut it. Here, on the road to acquittal at this trial, I successfully hammered home that the Virginia stalking statute’s prima facie evidence provision is not triggered when the complainant picks and chooses the categories of communication that the complainant permits the defendant to make. That left whether my client had intentionally put the complainant in fear of physical harm or should have reasonably known that such fear would result from his behavior, where, as here, the judge at this bench trial recognized that the evidence was insufficient to convict where my cross examination showed the multiple recent times when the complainant willingly went to my client’s home to pickup their child, and that my client was trying to communicate with the complainant about their child. Better yet, we won this trial at the motion to strike phase, meaning that the defense did not even need to present our own evidence.

Should my Virginia criminal lawyer move to continue my protective order trial for after my parallel criminal Virginia assault or stalking trial?

When your ex-spouse, estranged spouse or ex-romantic partner pursues an assault or stalking prosecution against you, do not be surprised if they soon after file a petition for a permanent protective order (lasting up to two years) against you, which may or may not be preceded by an emergency protective order (lasting three days) that may accompany the criminal charge. Take such sought and obtained protective orders very seriously. A final protective order can be a scarlet letter against you. A conviction for violating any terms or conditions of an emergency, preliminary or final protective order (for instance for the defendant / respondent to maintain often hundreds of feet of distance from the complainant / petitioner, or not to contact the petitioner) is a Class 1 misdemeanor (at best) that carries up to a year of jail time. Gut-wrenching can be whether to ask the court to continue your protective order trial to after your parallel criminal trial, because obtaining such calendar trailing ordinarily necessitates extending the expiration date of any preliminary protective order to the new protective order hearing / trial date, which can be all the more troubling if any of your children are on the preliminary protective order, which makes it all the more important to pursue the removal of your child(ren) from a preliminary protective order, or else to narrow the order’s scope about your dealings with your child(ren).

Winning a Fairfax protective order trial through tight cross examination that shows the absence of the three elements for obtaining a final protective order

I always argue that Virginia law does not permit the issuance of a final protective order without the petitioner / plaintiff proving by a preponderance of the evidence that the defendant / respondent (1) recently (2) engaged in violence, force, or threat (3) that resulted in bodily injury or placed the petitioner in reasonable apprehension of bodily injury. Virginia Code §§ 19.2-152.9 and 19.2-152.10. Winning this protective order hearing where we had won the above parallel stalking trial was not guaranteed where, as here, only preponderance of the evidence is needed to win a protective order hearing. Nonetheless, just as with my above-detailed trial acquittal, with this parallel protective order hearing, through cross examination and argument, I painted a picture of the absence of violence or threat, and the absence of any reasonable fear of injury from my client, particularly where the petitioner repeatedly entered my client’s home to pickup their child, rather than having him come outside or having someone else pick him up. Again, as with our parallel Fairfax criminal trial, the judge at this protective order hearing granted my motion to strike, meaning we were victorious without having to present any evidence or testimony ourselves. 

How do I prevent a stalking or assault prosecution or protective order proceeding in the first place?

As hard as it may be to not blow off steam at your former or estranged spouse or former romantic partner — or to transmit many communications explaining the hurt and/or trespass they have caused — to do otherwise can risk your finding yourself as the defendant in a stalking or assault prosecution or protective order proceeding. Yes, much pain and conflict can result from the end of a romantic relationdhip, particularly when a mutual child, business or investments or other assets are involved. You have alternative constructive means at your disposal, including seeking mediation and third parties to assist. If you do get prosecuted or hit with a protective order petition, that is the time to obtain the best possible lawyer for you.

Fairfax criminal lawyer Jonathan Katz takes on your cause as his cause when you are prosecuted for an alleged Virginia felony, misdemeanor or DUI violation, or are the respondent / defendant in a protective order matter. Jon Katz gives your consultation request priority calendaring, usually able to meet with you within a business day of your calling us for your free in-person confidential consultation about your court-pending prosecution, at 703-383-1100, info@BeatTheProsecution.com, and (text) 571-406-7268.