Simple Assault and Deferred Sentencing Agreements (DSAs) in Washington, DC

by Jamison Koehler on March 11, 2010

Your client works downtown.  He and his wife commute together every morning into town on the metro.  The two of them are boarding the train one morning when he feels someone pushing him from behind.  Your client initially ignores it, but the pushing continues.  Finally, your client turns around and sees another man standing behind him, also trying to get onto the train.

According to the police report, your client elbows the man.  The man elbows your client back.  “If you touch me again,” your client supposedly says, “I’ll beat the crap out of you.”

“Oh yeah?” responds the other man.

At this point, the report claims, your client hits the other man in the face with a closed fist, thereby cutting his lip.

Simple assault?

There are two forms of misdemeanor assault – aka simple assault – in Washington, D.C.  First, there is “attempted-battery assault” which occurs when the defendant injures or attempts to injure another person. The second form,  “intent-to-frighten” assault, is defined as a threatening act that puts another person in reasonable fear of immediate injury.  In both cases, the prosecution must also demonstrate that the defendant’s act was voluntary and that the defendant had the actual ability to injure the other person at the time of the incident.  “Injury” is defined as any physical injury, however slight, and includes an “offensive touching.”

So yes, assuming the government will be able to make out its version of the incident at trial, the prosecution will probably meet its burden with respect to the elements of simple assault.  This assumes that the supposed victim shows up for court.  It assumes that he can testify with sufficient credibility and that he doesn’t have a string of arrests of his own for violent behavior.  And it assumes that you do not have a credible witness – either your client or a bystander – to offer a different version of the same incident.

In addition, there is probably not a good self-defense argument.  Yes, the other guy may have started it.  But it is unlikely a court will find that a blow to the face with a closed fist was a proportional response to the initial provocation.

So, if you don’t want to take the case to trial and you don’t want your client to end up with a conviction on his record, what do you do?

One option for a first-offender in D.C. is to seek a deferred sentencing agreement (DSA).   A DSA is an agreement between the prosecutor and the defendant.  According to this agreement, the defendant agrees to plead guilty to the charged offense. The defendant then has a particular time period – usually 6 months to a year – to complete an agreed upon set of requirements. In a simple assault case such as this one, the conditions could include community service, an anger management class, a stay-away order, a fine to the Victim’s Compensation Fund, and/or a written apology.

If the defendant successfully completes the requirements within the time period and does not pick up any new arrests, the defendant is allowed to withdraw the guilty plea and the prosecution dismisses the case. If, however, the defendant fails to complete his end of the bargain, he has waived his right to a trial and the court will enter the guilty plea and sentence him accordingly.

There are a number of obstacles to a DSA.  First of all, as with all diversionary programs, the DSA is entirely discretionary with the prosecution.  You can sometimes get a judge to pressure the prosecution into such an agreement, but for the most part, prosecutors need only do it if they want to.

Second, as in any case in which there is a victim to the alleged offense, the prosecution will normally not consider a DSA unless the victim consents. And this is not going to happen if the victim has a bone to pick with your client.

Finally, the DSA requires the defendant to stand up in open court and acknowledge guilt.   Some clients, feeling falsely accused, don’t want to do this.   Why should I plead guilty to something I didn’t do?  Why should I give up my constitutional right to a trial?

You need to look at the strength of the prosecution’s case and the strength of your own case in order to help your client to arrive at the right decision.  Clearly, you don’t want a client to plead guilty to something he or she didn’t do.  At the same time, again depending on the specifics of the case, your client may not want to risk jail-time, probation and/or a conviction on his record if you take the case to trial and lose.

Your client in this case is a large man but he has a gentle disposition. He has a good sense of humor, and he speaks fondly of his wife and their future together.  He regrets his involvement in the unfortunate incident, and decides he wants to accept the DSA.  He is not happy that he needs to stand up in open court and admit guilt.  But he takes the long view:  He doesn’t want to take the risk of ending up with a conviction on his record.

Your client looks at the sheet of paper you hand him outside the courtroom that lists the organizations for which he can complete the 40 hours of community service.  Yes, he says, I have always wanted to do this type of thing.  Now I finally have the excuse.

You have no doubt that he will complete the program successfully. You have no doubt that in nine months he will walk away from this case without a conviction on his record, the whole incident nothing more than a bad memory.

{ 5 comments… read them below or add one }

Michael Cool September 4, 2010 at 2:11 am

I was in court yesterday and recieved my very first DSA. The charges were for Assult and Battery on a 25 yr old man who i let stay in my house with his mother until better housing could be provided for the two of them. The son (25yrs.) and the mother (41) were asleep when i had left the house at 9:30 am to transfer their stored items at their friends house to a commercial storage unit that i rented for them 1 mi. away.

Michael Cool September 4, 2010 at 2:34 am

I worked (during an excessive heat adivory which i found out later that was posted for that day July 14, 2010) for 5 1/2 to six hours and had recieved no calls or texts on my cell phone from them expressing concern.
In completing this around 2:30 – 3:00 pm i returned back to the house. The two were awake sitting on the couch and i asked them “Why did’nt you call me ? Its hot out there! I’ve been moving YOUR containers for almost six hours. What happened? Could’nt you have text me to see if i was alright”? The son replied “We were wondering what to watch on T.V. tonight”.
I made contact with him and the police arrested me. Now iam on 1 yr. probation with a 516.00 fine and anger management. 1 yr. DSA My attorney was a court appointed and was excellent. With the judges ruling and arrangements made at this point, can the victum come back and sue me on this incident?

Casey May 10, 2011 at 1:51 pm

I was invited inside a male friend’s house. He locked me in his bedroom, hit my hand and got my phone then pumped his shotgun and pointed at me. Telling me if I say or do anything, he’ll show me what he going to do, then he pumped the shotgun and pointed at me. I can identify the gun, it was new, hardly used, pitch black. Guns that age, the mental turns gray with some wear, off-white on certain spots on the gun. His bedroom door opens from right to left and the light switch is on my left, behind the door. I wouldn’t have known that if I did not see it. His neighbor was up. I saw the light and heard the TV on.

He lying version: He invited me in and I was yelling at him so he went into the closet, pumped his gun to make me scram. He said, “I never saw it the gun”.

He said, “he didn’t make a phone call”. If someone else made the call, they can put me in his bedroom.

The judge asked him, did you pump the gun to put fear in her. He replied,”yes”.

The Judge makes his decision and says, “if he bothers you again, call me”. He is giving this a three month review.

Trial was Feb 16, 2011
Judge Decision May 4, 2011 Three months review, to call him, if anymore trouble.

After the three months, the judge plans to dismiss this case, if this guy doesn’t bother me anymore. He is indirectly intimidating me. We both work at the same place.

I want to appeal this case, once the Judges closes it.

This is not right!! We were never a couple or dating. We were friends for 7 years at work. According to Mississippi Law, the Judge did not uphold the Simple Assault Law. He intent to threaten to put fear and you dont have to show the gun, but then I saw the gun.

Bobby T June 16, 2011 at 10:54 am

Any thoughts on the effect that this on-the-record admission of guilt would have in a subsequent civil suit by the victim? Admissible? Issue preclusive, even?

Jamison Koehler June 16, 2011 at 11:35 am

Bobby T: In many non-criminal contexts (e.g., immigration law), the admission a defendant must make as part of a deferred sentencing agreement is treated as the equivalent of a conviction. While I am not a civil lawyer and have never tested this, I would assume that the admission would be admissible in a civil trial even if the defendant is ultimately allowed to withdraw the guilty plea. But I can’t imagine that the defendant in a civil case would be collaterally estopped from contesting the complaint on the basis of the admission.

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