Domestic Violence Charge Against NFL's Greg Hardy Dismissed

Earlier this week, Mecklenburg County District Attorney Andrew Murray moved to dismiss Domestic Violence charges against Greg Hardy, Carolina Panthers defensive end and soon-to-be free agent. The Domestic Violence charge stemmed from a 2014 incident where a woman accused Hardy of throwing her into a bathtub, choking her, throwing her onto a futon, and threatening to kill her. She testified to these allegations in Hardy's July, 2014 non-jury trial, where Judge Rebecca Thorne Tin found him "guilty" and sentenced him to 18 months Probation and 60 days Jail held in abeyance. That sentence was on hold pending the outcome of Hardy's "jury appeal." In his testimony at his July, 2014 non-jury trial, Hardy categorically denied the allegations, stating that his accuser became upset and caused her own injuries when he declined to have sex with her. Judge Tin chose to believe Hardy's accuser and found him guilty. In North Carolina, the criminal procedure laws allow for an "appeal by jury," essentially another trial. Trial by jury was set to start this Monday, February 9, but when Prosecutors were unable to Subpoena the accuser to testify in Court, they were forced to ask Superior Court Judge Robert T. Summer to dismiss the Domestic Violence charges. Click here for the ESPN article and video on the dismissal of Greg Hardy's Domestic Violence charges. As a Michigan Domestic Violence defense attorney who concentrates on defending those accused of Michigan Domestic Violence (also called Domestic Assault) charges, every day I respond to the question: "Will a Domestic Violence case be dismissed if the alleged victim doesn't show-up?" At trial, the accused has a Constitutional right under the 6th Amendment to see, hear, and question their accuser on the witness stand. This is referred to as the 6th Amendment right of confrontation. Generally speaking, if the Prosecutor cannot get the accuser to Court for trial, the charges must be dismissed because to proceed without them would violate the accused's right of confrontation. In the Greg Hardy Domestic Violence case, the Prosecutor reported that they had vigorously attempted to serve his accuser with a Subpoena, but were unable to locate her, even after surveilling her for some time. In Michigan, a Subpoena must be placed directly in someone's hands or mailed Certified, return receipt requested, delivery restricted to the accuser, with a signature proving they received it. Failing to comply with a Subpoena is grounds for criminal contempt of Court. The US Supreme Court has held that under the Confrontation Clause of the 6th Amendment, if the accuser is unavailable for trial because they cannot be Subpoenaed, the only way the trial can continue is if the Prosecution is introducing statements by the accuser made to others about the alleged incident that meet certain requirements, and the accused has had a prior opportunity to cross-examine them. Click here for the NFLs article on the Greg Hardy Domestic Violence charge dismissal. Because Greg Hardy had an opportunity to cross-examine his accuser at the prior non-jury trial in July, 2014, the Prosecution could have argued that Hardy already cross-examined her before, and that the Confrontation Clause would have allowed the trial to continue based on her former testimony. The fact that the Prosecution moved to dismiss the Domestic Violence charges against Hardy was likely not made for legal reasons, but for practical ones: juries are unlikely to convict if the accuser isn't even willing to show-up in Court. Had Hardy's case gone forward, this situation would have forced Prosecutors to come up with an explanation for why a woman who was allegedly so brutally attacked wouldn't have the incentive to see to it that Hardy was convicted and punished. If the jury didn't buy the Prosecutor's explanation for the accuser's absence and found Hardy not guilty, that would be it - end of story. Although news sources have neither confirmed nor denied it, it is a fair assumption that the Domestic Violence charge was dismissed "without prejudice," which means the Prosecution can re-file the charges if they later find a way to gain Hardy's accuser's cooperation. For tactical reasons, the Prosecution made the right choice under the circumstances, but that doesn't necessarily mean that Hardy won't be back in Court again sometime in the future. And considering the tenacity of the Prosecution's quest to Subpoena the accuser, it's reasonable to assume they're not just going to let it go. In the meantime, Panthers organization has released the following statement about the Greg Hardy Domestic Violence matter: "We are aware of the decision by the district attorney's office to dismiss charges against Greg Hardy. Greg remains on the Commissioner's Exempt List and the NFL has advised us to allow it to complete its review under the Personal Conduct Policy. There is no change in his status at this time." Michigan criminal defense attorney Brian J. Prain is a top-ranked defense lawyer who concentrates his entire practice on defending those falsely accused of Michigan crimes involving an element of Assault, including Domestic Violence. Brian J. Prain of Prain Law, PLLC can be reached at (248) 731-4543.
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