Monday, March 10, 2008

Against her will? UPDATED

UPDATED:

Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008. - Arcata Eye MARCH 2012

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Expert: Rape victims can be forced to take witness stand
The TS reports: ...Because our system of law attempts to balance the rights of the victim with the rights of society as a whole, a prosecutor can choose to proceed with a case against the victim's wishes, and Lemon said sexual assault victims can be ordered to testify.

The California Civil Procedure Code states that a victim of sexual assault can be ordered to testify, and found in contempt if he or she fails to do so. The only protection afforded sexual assault victims is they can not be sent to jail if found in contempt.

The maximum sentence under the code is for a judge to order the victim to attend up to 72 hours of a domestic violence program for victims and order them to perform up to 72 hours of community service.

Getting victims to take the stand for the prosecution can be such an obstacle that it is the subject of an entire section of a California District Attorney's Association publication titled “Investigation and Prosecution of Domestic Violence.”

The publication points out that victims can feel a lot of guilt in helping the prosecution's case against a loved one, and suggests that prosecutors do everything possible to make the victim feel that the decision whether to prosecute is the district attorney's. The publication even suggests that prosecutors order the victim to appear, as Gallegos did with Gundersen's wife.

”Once the ultimate authority, the court, directs the witness to answer questions, most victims comply,” the publication states.

“Many victims feel considerable relief at being able to tell the defendant that the decision to testify is out of their hands, as they have been ordered to do so by the court.”

With April -- Domestic Violence Awareness Month -- around the corner and two high profile sexual assault cases in the media, Arrowsmith-Jones said it is a good time to raise awareness about domestic violence and create a societal environment that is more encouraging of victims coming forward.

”The kinds of violence that are in the paper right now are happening in our community all the time, and it's only every once in a while that it comes to public attention,” she said. “But, these types of issues are going on all the time.”

Back at the EMMA Center, Bian said she's seen many cases die because the victim has a change of heart or the prosecution can't build a strong enough case even with the victim's cooperation. More disturbingly, she said, she's seen some victims simply suffer in silence.

”I know people come in here who don't even report because they're ashamed,” she said. “There's still that stigma in society, that it's the victim's fault.”


The North Coast Rape Crisis Team has a 24-hour, confidential, crisis hotline at 445-2881. Collect calls are welcome.

updated Related coverage, with links

UPDATED:

Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008. - Arcata Eye MARCH 2012

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40 comments:

  1. Well, I note that the learned professor cites no authority for her view, she might want to parse the case of People v. Gwillim, 223 Cal. App. 3d 1254 which states "Unlike the victims of other crimes, the victim of a sexual assault may refuse to testify without risking penalty" and notes that without other evidence the district attorney may decide to forgo prosecution if the victim of a sexual assault is unwilling to testify.
    Perhaps the professor can tell us why, if the court says
    "Without Penalty" [not without imprisonment, not without contempt, not without a fine, but simply 'without penalty'] there is any basis for the conclusion that in enacting 1219(b) the legislature meant only partial protection for sex crimes victims.

    Just asking.

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  2. I agree 8:41. When I read that this morning in the TS I shook my head.

    BTW seems like the professor also was confused about refusing to testify b/w domestic violence victims and sexual assault victims.
    While she may be an "expert" in domestic violence issues, she sure doesn't seem too up on issues involving victims of sexual assault.

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  3. You don't read very well do you?

    "The California Civil Procedure Code states that a victim of sexual assault can be ordered to testify, and found in contempt if he or she fails to do so. The only protection afforded sexual assault victims is they can not be sent to jail if found in contempt.

    The maximum sentence under the code is for a judge to order the victim to attend up to 72 hours of a domestic violence program for victims and order them to perform up to 72 hours of community service."

    Rape victims who refuse to testify against their rapist are cowards who are allowing them to go on and rape more women. Shameful!

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  4. I could be mistaken, but most of you seem to be on the side of the rapist. Do you hate Gallegos that much?

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  5. Fuck you 11:11 and 11:07 for saying that. I happen to be on the side of the alleged victim you close minded pos. How very limited of you to spin it that way.

    And by the way, the paragraph that you attribute to punishment is for victims of domestic violence and NOT sexual assault.

    You are a coward and a piece of shit for anonymously calling rape victims cowards. You are evidently one very screwed up woman. Are you Jane Doe, Sterling Nichols?....I smell both.

    The only thing shameful here is your babe. You and Gallegos for doing this to this woman.

    Frankly, maybe this will happen to someone you care about and you will have to not only re-evaluate what you have said...but eat your words.

    Are you so enraptured by that blitering idiot Gallegos, that you would treat a victims of crime with such callous disregard?

    How very progressive of you.

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  6. 1107, you are confabulating 1219(b) and 1219(c). Maybe you should consider source material, rather than T/S coverage, for your legal
    authority. You will note that even in the T/S, there is no cited authority from the professor or in the T/S to support the claim that rape victims are subject to contempt.
    If you think otherwise, then you find and quote here that portion of the Civil Code that 'states that a victim of sexual assault can be ordered to testify, and found in contempt if he or she fails to do so".

    Good luck. Rape victims are cowards, are they, if they choose not to testify. My, aren't you the progressive one. Perhaps we should waterboard those weaklings who
    choose not to be pilloried in court.

    As for you 11:11, no one is for rapists, except other rapists.
    What might upset some people is the spectacle of a DA who ignores the laws protecting the privacy and mental heath of sex crimes victims, and willing to bully a woman who chooses to assert her rights.

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  7. Well it is Tad reporting...

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  8. Like I said, you hate Gallegos so much you are rooting for a rapist. You are sick fucks.

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  9. 1203, where do you see anyone "rooting for rapists?"
    If a victim wants to testify, that's great. If not, why is it so hard to respect that? I suppose that if one were to support that the 5th Amendment, which gives all accuseds (yes, even rapists and murders) the right not to testify,
    one is "rooting" for criminals? If one were to suggest that the suppression rule crafted on to the 4th Amendment is sensible, one would be in favor of letting crooks go on "technicalities"? How about Miranda? How about the right to counsel? None of these "rights" are in the Bill of Rights, but seem to have wide support. Do you only support rights for criminals, and not for victims? If so, doesn't that make you the one who is rooting for rapists?

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  10. So is the victim who refuses to testify guilty of helping him rape his next victim?

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  11. Last time I checked, there hasn't been a trial and right now, there isn't anybody that's been convicted of anything.

    Did I miss a trial somewhere between last night and today?

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  12. 11:07, 11:11, 12:03 and 12:34 are obviously all the same, Ms. Nichols I presume?

    Get this thru your thick little pea brain. The folks here support the rights of victims not to be forced on the stand. Period. You are so delusional that you can't even fathom that missy. You are so limited in your ability to critically think that you dismiss a victim's right to say "NO" and that means no to anyone including that sick F@#k of a DA.

    No Missy, you are the sick one for blaming the alleged victim here. How typically pathetic of you and your kind.

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  13. Victims who allow rapists to continue to rape get no pass from me. Their refusal to testify means that other women will be raped.

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  14. Then 1:36PM, you better go have a talk to College of the Redwoods, they have actively covered up rapes and abuse on their campus for years.

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  15. Yeah right 1:36 - You really are a pea brain to think that. Women, children and men have been raped throughout the ages and that has absolutely NOTHING to do with the fact that they testify or don't testify.

    1:36 - you are about as bright as a garbage can.

    Does the constitution and bill or rights mean anything to you. Do you consider each document and inconvenience that allows criminals to go free?


    No, I believe that any person who has been victimized by sexual assault has the right to say no and not be forced on the stand and humiliated by the defense, the prosecution or whatever.

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  16. After reading the article I wondered about a wife not having to testify against her husband and how that would come into this.

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  17. there is no marital privilege in CA when one spouse commits a crime against the other, so it does not come into this at all. It is the status of rape victim that conveys the right not to testify, not the status of spouse.

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  18. Rapists in prison don't have access to women dumb ass.

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  19. All the absolutely scummy vitriolic Gallegos haters are showing there own irrationality, by sticking up for a dirty disgusting raping cop with a bunch of sub machine guns. Could it be that your absolute blindness when it comes to Gallegos might be mis-placed, and this scummy bastard Gunderson actually did this? First you said, Gallegos couldn't force her to testify. Well it turns out he can. She just can't go to jail for refusing. Your false spin is failing, and Gundy the raper- boy is going down. The people will have no one else to thank other than the courageous Paul Gallegos, who unlike other DA's in the state will actually call the police on their actions if appropriate. If you think you are going to ride the Gunderson case to getting Paul out of office, like you tried with Palco, your wrong. Stop siding with Gunderson, and recognize that Paul Gallegos is a good DA, who is trying his best with limited resources. Hell, if you took Blue Lake's Machine Gun budget, you could hire one more DA to prosecute crimes in this county.

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  20. Oh, bullshit. Don't try'n say that the machine gun budget would buy another Deputy DA for the office, Gallegos is swimming in money from all the unfilled positions, Stoen's salary alone.... don't even try that crap, especially when your boy has his own plans to buy weaponry.

    I'm not sure what it is about this Gundersen case that has the defenders all jumping up and down like Rumplestiltskin, but you ought to just relax - if the case is good, Gundersen will go to jail. The apple might have fallen right in Gallegos' lap.

    Certainly there's no law enforcement guys defending him, because contrary to the hater's spin, cops don't like a dirty cop, and it's clear they think there is one here.

    However, no one I'm hearing from thinks Gallegos is handling this properly.

    What's more, he should recuse himself from any involvement whatsoever in this case, if, as has been reported, his wife is indeed the attorney for the ex, and the ex is involved in a custody case.

    Gallegos is the gift that keeps on giving unfortunately.

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  21. Well, Rose since your Anonymous-(ahem Harland Law Firm lawyers), excuse me anonymous bloggers are really good at citing case authority. Please have Allison Jackson (I'm sorry. I mean anonymous.) provide some authority, why a non- victim, non-witness who happens to be represented by Gallegos wife would ever amount to a conflict. First off she is not involved in the case, according to media reports. She was not the original reporter of the crime, despite your spin. She is not a victim. She is not a witness. You know Gundy-the Raper boy is going to get convicted, and you are desperate to take that positive spotlight away from Gallegos. That is why you are opposed to him being on the case. As for the way he has handled the case, let's take a look at that. A victim of crime reported that she had been raped. Acting on that information, an Arrest Warrant was prepared. The suspect was arrested. Multiple search warrants were executed, leading to the discovery of additional evidence. A complaint was filed, and the Defendant was charged with crimes. When after completing the additional investigation, additional crimes were revealed, the complaint was amended, and the Defendant's bail was raised. I don't know about you, but that appears to be the way to investigate and prosecute people for crimes. Clanton, the Defense attorney gave a freakin press conference that you can still watch on the T-S website. That is what is improper. Exactly what would you have done differently? Not investigate the guy? Not charge the guy? Not do additional investigation? Why? Because he is a cop and should be given a break. That is what it sounds like. You know the funny thing here is that all you Paulie-haters claim your not on the side of the rapist, by cleverly saying you are supporting the victim who doesn't want to testify. That is bullshit. To paraphrase Pres. Bush in 2002, You are either for the rapist, or you are against the rapist.

    BTW, do those PALCO checks keep clearing?

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  22. In my opinion the whole conflict issue is a red herring, because I doubt Clanton will raise it. Under the facts here, there is at least the appearence of a conflict. Ex-wife is a potential witness, as I understand the media accounts, current wife first reported to ex-wife and spoke with law enforcement at ex-wife's urging. Not to mention, ex-wife made a similar accusation in the context of the family law proceedings, though it is not clear whether JG was invoved at that point. A competent prosecutor would want the jury to hear about that, and the only way for that to come in is through ex-wife. Given the foregoing and JG's involvement, there is unquestionably a conflict. Throw in the prior failed attempt to prosecute Gunderson for perjury, and no prudent DA would WANT to be involved.

    I described the fact pattern to several of my colleagues (I am and they are prosecutors in a county other than Humboldt, thank God) and every single one of them had the same reaction at the same point (i.e. and DA's wife represents ex-wife in a disputed custody issue): "Isn't that a conflict?" If you want authority look a CCP 170.1, which deals with conflicts for judges, but is a useful analogy.

    I don't think Clanton will raise the issue, though, because why wouldn't he want PVG to personally handle this? He gets the AG involved and he might accidently end up with a competent prosecutor.

    As I understand it, this case was charged on the basis of one or two interviews over one day with on ewitness, the victim, with no physical evidence, no medical evidence, no corroboration in any form. Gunderson was arrested before the search warrant was served. That is ass-backwards at best. These are serious charges - even if he is acquitted his life is ruined. Wouldn't you want to know what the physical evidence was before you filed this case and screwed this guy?

    It is hardly unique for a DA to prosecute cops. Happens in every jurisdiction. Question is, does PVG have any idea what he's doing? History tells us nope, he's a buckethead.

    All of a sudden he's piling it on this one guy, and maybe rightfully so. Be happier about that if we didn't have the failed perjury prosecution. Even if this is a completely justified prosecution which would be undertaken by any prosecutor, can Humboldt count on PVG not to screw it up? I can already see a lot of issues with this case, for instance, if current wife simply refuses to testify at all, just sits and says nuthin' then the court cannot punish her and her prior statements cannot come in (Crawford), so how you gonna prove those charges? Prosecution of a nine-year old offense (the PC 209) is at best dicey, if you can get past due process problems due to pre-accusation delay (Gunderson has to show prejudice by the delay, but that's certainly concievable). And although he did have a lot of machine guns, he has a defense defense as he is a peace officer (PC 12201(b).) and PVG has to prove his possession was unlawful - Gunderson doesn't have to prove it was lawful.

    I am tired so I will end by pointing out, no one is rooting for a rapist here, that is just silly. I myself am wondering what the hell PVG is playing at, and given his history, that is a legitimate question.

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  23. Prosecutor in a different county still tasting those sour grapes.

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  24. My fascination with the train wreck that is PVG's career as a District Attorney is based on the fact that I take my vocation seriously, and resent persons who tarnish the public image of prosecutors. Now that Alberto Gonzales is gone, PVG is the most embarrassing example of a politician turned prosecutor. Is that sour grapes?

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  25. The anonymous who is citing case law is most definitely not anyone named Jackson, and does not work at Harland or any other Humboldt County law firm.

    signed
    Anonymous

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  26. Well, I do talk to Allison, and other people in this county - and this blog has visitors from County and DA's offices up and down the state as well as a number of law firms. They make valuable contributions to the discussion here, and elevate the level of discourse on a regular basis.

    Sometimes they are people who get mentioned for one reason or another, but the regular visitors, some of whom I hear from, and get information from, all say the same thing - up and down the state they know about the train wreck that is Paul Gallegos, and it is a constant source of amusement and astonishment.

    It's the reason he can't attract qualified people to fill the empty positions. Pure and simple, the word is out. There's chaos here and there's no integrity here. For the young lawyers, they can't afford the stigma that will come from being employed here, and they need good training in a law/DA's office that will make them better lawyers and prosecutors, not destroy their career and promote mediocrity. They didn't pay all that money for law school for this.

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  27. Anyone who thinks that Allison Jackson would be rooting for a rapist or any sex offender obviously doesn't know Allison Jackson.

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  28. All you have to do is ask Russ Clanton. He hates her.

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  29. Not as much as Gags hates her.

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  30. Two words. Century Club.

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  31. Whats the Century Club 9:38?

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  32. The Century Club? Jackson locked up more perverts for billions of years. She was unbeatable which is why Clanton hated her. She was unmoveable when it came to her integrity and that’s why Gags hated her. She would woop Clanton’s ass if she were prosecuting this one. But that’s our loss as is losing other folks like Wade and Isaac. Now we have this kind of bullshit.

    BTW - thanks Red for your input.

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  33. I can answer that since I coined the phrase. The "Century Club" includes those sex offenders who Allison and Andrew convicted under the 269PC sections such that they received multiple life terms. If the sentence was over 100 years, well, you get it? As for PVG when I quit the office the last person who received a sentence 100+ years was under the Terry Farmer admin. and we did this routinely. Apparently this is not important to Paul.

    -Chris Andrews,
    Former DA Investigator
    Now living out-of-state

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  34. Chris! So good to hear from you.

    For those who don't know, losing Chris Andrews is another of the catastrophic losses this community has suffered under Gallegos.

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  35. Chris was, and is, a profoundly talented computer crimes intestigator, sex crimes investigator, and all around investigator who was a "freebie" for Humboldt because his salary was paid for by the State due to his Computer Crimes Task Force assignment. PVG regretted his inability to fire this talented man (the investigators, unlike the DDA's, have a real union) for being a Dikeman supporter. Yes, when working for PVG job performance had nothing to do with longevity, it was all about personal loyalty 24/7.
    So we lost Chris, just like we lost Hagen, both irreplaceable both as persons and as technicians.
    Like so many others.
    I tell you this. If Gunderson is guilty, he's thanking his lucky stars his case wasn't prepped and isn't being prosecuted by Jackson. No Jackson case was ever unprepped, no loose ends. No victim every 1219'd Jackson.
    I note that buffoon Bubba Joe is still misciting the law of 1219 on the T/S comment blog. What's funnier than someone who thinks they know something? Like how to read.

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  36. Has any sex offender been sentenced to this "Century Club" since PVG took office ?

    I think I know the answer but I'd like an official or semi-official answer.

    PVG sure did a great job on that guy that shot up a bunch of houses in Eureka (2003)and was arrested just as he arrived at his ex girlfriend's house !!!!! Who know's what he was going to do to her. It was quick response by the EPD that saved the day on that one. And PVG handed out a slap on the wrist. And he talks about justice.

    Trainwreck is very accurate.

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  37. I know that Woody from out in Blue Lake got a slap on the wrist for child porn, but never looked into the case much.

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  38. Well, apparently all the serious sex offenders have left Humboldt, scared off no doubt by the DA. Really, what's scarier than having the prosecution against you fall apart because the DDA never met the victim before trial, so you have to accept probation instead of many years in prison.
    The last best shot at a century club case was the Fortuna or Ferndale guy who was able to plead for one count instead of the thousands he committed. That case was mishandled by everyone who touched it, except Blair Angus, the defense lawyer, who had the guts and brains to see and immediately capitalize on a charging error. The DDA in court did not have the guts or brains to respond to Angus's initiative (ask for time, move to dismiss, move to amend) the judge did not have the guts to hold off on the plea to ensure it was appropriate to the offenses committed, and the DA had absolutely no idea what to do aside from blame his subordinates.
    As usual, one of them took the hit for the in court screw up and the
    4th floor screw up.

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  39. 8:25 p.m. - you sound very similar to the “idiot on the fourth floor.” Blogging from home Paul?

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  40. "freakin" is a PVG byword.

    Wait for it folks, the prelim is coming. At least Gunderson gets one, unlike Douglas and Zanotti.
    He'll get held to answer, the standard is really low, but there's either a case or not, and if there isn't it's Clanton's job to show that, early and often.

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