RADAR ALERT: Oral Argument in Crespo to be Webcast Jan. 6, 2010

I warched the webcast. The lawyer for our side seemed unprepared.

The hearing just concluded. The attorney representing our side as MRAs, David Heleniak, was allowed much more time to articulate his arguments than was the case for the opposition. He pointed out that restraining orders are unique in that they carry a penalty for alleged violations of jail time (via civil contempt of court), but do not afford the defendant sufficient opportunity to gather evidence in his or her defense (since the family home is off-limits). Heleniak also pointed out that the so-called "preponderance" standard currently in place restricts U.S. constitutional freedoms to bear arms, although he indicated that this point was not central to his argument. Mostly he focused on the stigma that is attached to defendants who are subject to restraining orders. They are placed on a domestic violence offender registry, and this can significantly impede their ability to exercise parental rights in family court. One justice asked Heleniak whether there was empirical evidence that a restraining order can be used against a parent in family court, and Heleniak responded that he only had anecdotal evidence, but reminded the justice that such anecdotal accounts were a part of the record that was submitted to the trial court judge at an earlier time and thus available for the justices to consider. In addition, the stigma of a restraining order, as Heleniak pointed out, follows a defendant wherever he or she goes: during a routine traffic stop, when applying for a job, when serving as a clerk for a judicial government organization, and numerous other venues.

The justices, as with most appellate court arguments, played devil's advocate against both opposing attorneys. One comment that a male justice posed to Heleniak was that civil contempt orders are not limited to restraining orders but are widely implemented -- and considered acceptable and legitimate -- in other types of cases. He wanted to know why restraining orders deserve special scrutiny. To this, Heleniak again pointed to the stigma associated with a restraining order, the placement on a DV offender registry, the negative impact it has on one's parental rights in custody determinations, the difficulty it poses in obtaining or retaining employment, and the essential impediments that it poses to the defendant to collect evidence in his own defense (as he is blocked by the order from approaching the family home).

The opposing attorney was comparatively very brief. She argued that defendants are not automatically incarcerated by a restraining order and therefore should not have the same rights as criminal defendants, who usually are facing some form of incarceration. She also argued that defendants never actually have to contend with a "permanent" restraining order, because they always retain the right to approach the civil court and petition for it to be removed; such is not the case for defendants with a criminal conviction on their record. She also cited legislative and judicial precedents that support the status quo, which she supports. Her oral arguments seemed to have been cut short when she indicated that the briefs that she had filed with the court were more extensive. The court then adjourned for a brief recess before taking up its next case.

In terms of delivery, although Heleniak seemed to hit all the right points in his oral arguments, he seemed short of breath and extremely nervous, also using the word "um" repeatedly as he articulated his arguments. On at least two occasions a justice asked him to sum up his arguments and to indicate what he was asking for. I think that this may possibly end up being of minor importance, especially since the court had already heard cases before this one and was about to hear subsequent cases. Because the court will spend so much time hearing oral arguments on other cases, it seems reasonable to conclude that the justices may tend to rely more heavily on the transcripts of the arguments in this case and the written briefs submitted by the attorneys. To his credit, Heleniak did "cover the bases" in my opinion, and I think that the transcript will reflect that.

If Heleniak is successful, the New Jersey Supreme Court will reverse the ruling of the appellate court and affirm the original ruling by the trial court, requiring judges in the state to observe a stricter standard in whether to issue a restraining order. I'm keeping my fingers crossed for a favorable outcome. Good job, David!

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John Dias
Editor, Misandry Review

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