Originally published on CBSNews.com
December 7, 2015
Co-written by Julianne Cuba and Taylor Garre
Dallas Cowboys defensive end Greg Hardy may have avoided domestic violence charges for the assault of his ex-girlfriend, Nicole Holder. But he has not been able to dodge public condemnation following the release of photos showing a badly bruised Holder.
The photos confirm what Holder told police on the night of May 12, 2014 — that Hardy, then a Carolina Panthers player, had choked her and tossed her on a futon covered with firearms in his Charlotte apartment.
While the photos further fueled the debate about the NFL’s domestic violence policy, the question remains as to why a North Carolina court dismissed Hardy’s assault charges. A CBS News analysis reveals that a loophole in the state’s domestic violence law is allowing many abusers to walk away scot-free.
“The laws themselves are archaic [in North Carolina],” said Mike Sexton, Domestic Violence Information and Education Specialist at Mecklenburg County Women’s Commission. “Right now, if you were to drag your girlfriend or your wife down the street it would be a misdemeanor, but if you did that to your dog, it would be a felony.”
Under North Carolina law, many domestic violence cases are tried as misdemeanors in district court as a means of saving time and money. These courts are “not of record,” meaning a transcript of the testimony is not kept when defendants, like Hardy, plead their case to a judge without a jury.
Defendants who are found guilty in district court can challenge the decision in superior court where a form of appeal known as “trial de novo” essentially gives all defendants a second trial. Trial de novo sets the stage for a new trial, this time with a jury, as if no prior trial had been held. Similar legal practices exist in other states including Utah, New Mexico, Virginia and Colorado.
In July 2014, Hardy was found guilty by Mecklenburg County District Court Judge Becky Thorne Tin and sentenced to 18 months’ probation for assaulting his ex-girlfriend and verbally communicating threats. But after appealing to superior court where trial de novo favored the NFL player, Hardy’s case was dismissed due to the state’s inability to get the accuser to testify again. Last month, his domestic violence record was expunged by a superior court judge.
“It’s hard enough to get the victim to show up for one trial and doubly difficult to get them to show up for two,” said Joshua Marquis, a spokesperson for the National District Attorneys Association and District Attorney in Astoria, Oregon. “As prosecutors, we are bitterly opposed to any procedure that gives the defendant two free bites of the apple and more importantly [one] that subjects victims, particularly domestic violence victims, to repeated examination. They endure enough trauma as it is.”
Also complicating the prosecution of domestic violence cases is victim intimidation. Amber Leuken Barwick of North Carolina Conference of District Attorneys says too many victims file charges and then drop them out of fear or shame.
Ruth Glenn, Executive Director of the National Coalition Against Domestic Violence, described the current appeal process as not effective saying, “The appeal system for domestic violence cases is not justice or victim-centered” and is a “classic example of why victims are sometimes reluctant to come forward.”
In some states like California, New York and North Carolina, prosecutors can continue to pursue charges even after a domestic violence victim chooses to drop them under what is called a “no-drop policy.”
Ironically, even with such policies, some domestic violence cases cannot advance without a victim’s testimony due to the 6th Amendment Confrontation Clause of the U.S. Constitution, which gives the defendant “the right to confront witnesses against him or her,” explained Barwick.
Overcoming this obstacle causes many domestic violence cases such as Holder’s to come to a halt.
“It’s just a shame when a victim has the strength to testify in the first trial but it’s basically rendered meaningless just to go through it again,” said Teresa Garvey, Attorney Advisor with AEquitas: The Prosecutors’ Resource on Violence Against Women.
The High Point police department, just 75 miles north of Mecklenburg County, is looking to change that and make sure cases are not wrongly dismissed.
In order to hold offenders accountable for their actions, Chief Marty Sumner is compiling criminal histories, which can lead to longer sentences and more prosecutions.
“Our entire response system is very much set up to take all the responsibility off the victim so that it is totally on the police and the state,” said Sumner.