The Difference Between 100 Years in Prison and 12 Months Probation

by Tim Baldwin

I recently represented a Montana citizen whom the state government charged with felony stalking, which allegedly occurred between May 29, 2014 to July 3, 2014. He had an existing restraining order against him (because he “tailgated” her too closely one day), which his wife applied for and obtained from a justice court (not a hard thing to obtain nowadays). When there is a restraining order in place, it makes a stalking charge a felony. My client had a prior felony drug possession conviction within 5 years of this stalking charge, so under Montana law, the government was seeking PFO (“persistent felony offender”) status. This means, if convicted of the stalking offense, my client was facing a maximum of 100 years in state prison with no less than 4 years in prison. His situation was seriously dangerous.

My client had a prior defense attorney represent him. That attorney tried the case at trial before 12 jurors. At end of the trial, 11 of 12 jurors said GUILTY. One juror said NOT guilty, however. He was nearly convicted, but it was a hung jury. Still, the government did not give up prosecution: they wanted a second trial. After this, the prior defense attorney and client had a breakdown in their relationship. This is where I stepped in and began representing my client.

Prior to my representation, the defense attorney did not do many things I thought were necessary and critical for a good defense. For example,

  • the complaining witness had a prior conviction against my client for assault. I wanted to use this as character evidence under Rule 404(a) and (c), Mont. Rules of Evid.;
  • my client’s family law attorney had instructed my client during the time of the alleged “stalking” to take photos of his personal property. This is why my client was “caught” on his property taking pictures, which the complaining witness claimed was “stalking”;
  • a mutual friend of my client and the complaining witness said that the complaining witness told him to tell my client that she had pictures of their children in her vehicle and that he could get them since she would be out of town. Since she claimed he was “stalking” her by going into her car, this witness was important to show she was setting up my client;
  • the government had not disclosed exculpatory evidence, which was needed to defend the client. This included the numbers of time that the complaining witness called the police against my client, but the reports showed that she was either unreasonably paranoid or vindictive;
  • during the first jury trial, the defense attorney did not object to many prosecutor questions that, in my opinion, violated the rules of evidence. I filed a motion in limine to exclude these questions; and
  • all of the witnesses needed to be interviewed, but they weren’t before the first trial.

After I performed these tasks (and more), the court held a hearing on my defense motion to use character evidence against the complaining witness. The court ruled that I could use the evidence if the government elicited testimony or made arguments at trial that my client dominated her in their relationship, which is why she was “scared” of him. This took the wind out of the government’s case in many respects. Then, the Court indicated at the hearing that she was going to grant my defense motion to keep out certain testimony that violated rules of evidence. Again, this took the sting out of the government’s case. In short, the prosecutors’ case had substantially worsened and weakened–by the defense simply discovering the facts and using the law.

What happened next? One week before trial, the government offered to reduce the felony stalking charge to two misdemeanor restraining order violations. My client accepted. So, instead of facing 100 years in prison if convicted at trial, my client pleaded to two misdemeanors, for which he was ordered to be on 12 months unsupervised probation.

The moral of this story is simply this: if an accused expects to get the best result possible, he must hire a defense attorney who

  • is willing and able to work hard;
  • knows how to deal with prosecutors and witnesses;
  • knows criminal and constitutional law;
  • digs deeply into the case;
  • isn’t afraid of taking cases to trial; and
  • knows what to do with the information he learns.

It’s the difference between life in prison and 12 months probation.

For your criminal defense, email Tim Baldwin at

Domestic Abuse Allegations: Consider the Source

by Tim Baldwin

A recent video shows a Florida judge holding a complaining witness in an alleged domestic assault in contempt for not appearing at trial after she was served with court order to be present. The judge asked the woman if the allegations she made were true. She said, yes. The judge then asked, so why didn’t you appear for trial? The woman blamed anxiety for her failure to appear. Since the complaining witness failed to appear for trial, the prosecutor could not attempt to prove the charge; the case was dismissed consequently.

So, what reasons are common in domestic abuse cases for a complaining witness not to appear or not to participate in the prosecution?

Many domestic abuse cases originate because a complaining witness calls 911 during or after domestic arguments within a private home. Police arrive to investigate. Under the laws of many, if not all states, the police MUST arrest one of the parties. This normally translates into police arresting the male because of the difference in size and presumption that the male was the aggressor.

I recently handled a case that demonstrates this. There, the woman claimed that my client hit and pushed her without provocation in their home. Multiple police arrived on scene. The police arrested my client after talking to her. Later, at the booking station, one officer interviewed my client while another officer interviewed the complaining witness who maintained that he hit and pushed her without provocation. My client explained to the officer that the complaining witness stabbed him with a pair of scissors twice, once in the arm and once in the chest, and that when she attempted to attack him a third time, he defended himself.

He took off his shirt and showed him his arm to police. Behold, there were puncture marks on his chest and arm. She, on the other hand, had no signs of being assaulted. Guess what, the officer who interviewed the woman told the other officer to arrest my client even before he heard my client’s story. The police let her go free.

When the case was forwarded to the prosecutor, she continued to prosecute my client in spite of what the evidence proved. I tried to get the prosecutor to dismiss the case before trial, but she didn’t. So, we took the matter to a bench trial where I offered evidence of self-defense. Despite the complaining witness giving a story to the contrary (under oath), the judge found my client NOT GUILTY by reason of self-defense, thankfully. Justice was done.

However, in many domestic abuse cases, the physical evidence does not make it easy to determine or prove what actually happened, unlike the case I shared above, which allowed me to prove self-defense. Most cases are his-word-versus-her-word cases. This forces the defendant to choose either to enter into a plea agreement or face the risk of going to trial and being found guilty for something he did not do or for doing something much less than what the accuser claimed. In many cases, the defendant feels his best option is to accept a plea agreement instead of being subject to the maximum penalties by a judge at a sentencing hearing. He chooses the lesser of two evils.

So, why do complaining witnesses make unfounded or exaggerated claims? There are many. For example, the complaining witness:

  • may be a drug addict and unable to perceive and recount reality accurately;
  • is trying to gain an advantage over the defendant in a family law matter, such as child custody or support;
  • is trying to put herself in a better position or light while being investigated by child protective services;
  • feels substantiated only when playing the role of a victim;
  • has post traumatic stress disorder from a previous abusive relationship and responds to any conflict by associating her current partner with the previous abusive partner;
  • has a mental or personality disorder;
  • has a hyper-sensitive personality and exaggerates conflicts;
  • is trying to manipulate or dominate the defendant in their relationship;
  • was the actual aggressor in the dispute and doesn’t want to face cross-examination or lie under oath;
  • is being influenced by other friends or family members who have convinced her to rid herself of the spouse or partner; or
  • is cheating on the spouse and is using the legal system to shift personal responsibility.

In these circumstances, it becomes critically important for the defendant to hire a defense attorney who knows what to look for and how to handle the allegations. This includes knowing how to interview witnesses, prepare applicable defense motions, find and analyze physical evidence and witness statements, work with a private investigator to learn underlying facts of the relationship and personalities at play, dig into the complaining witness’ mental and psychological history, learn of previous false reports made by the complaining witness, and try a jury trial.

Keep in mind: being accused of domestic abuse is no small thing, even if it is a misdemeanor. For example, under federal law, if a person is convicted of domestic abuse by assault, the person loses his federal firearms rights: a subsequent possession of a firearm with that conviction could be prosecuted as a federal felony. Too, being convicted of domestic abuse may prevent a person from being issued a concealed carry permit, hired at a security job, or issued travel or clearance permits. Any person charged with domestic abuse needs to hire the right defense attorney for the job.

For your criminal defense, email Tim Baldwin at