Your Wednesday Blawg Update: Where Vander's Case Goes From Here

Unfortunately, it doesn't sound like Vander was wearing his jersey during the Qdoba Dustup. That might've prevented the confusion over his last name.

In today's installment of The More You Know (Or Ever Wanted to Know) About Municipal Citations:

Yesterday afternoon, we learned that Marquette freshman Vander Blue's municipal citation for assault and battery has been scheduled for trial.  Word from Vander's attorney, respected criminal defense attorney Gerry Boyle, is that the City offered to amend the citation to one for disorderly conduct, but Vander rejected the offer.  The trial of the citation has been scheduled for June 3.

I remain of the firm opinion that this is a lot of hubbub over a whole lot of silliness, and I'm a bit embarrassed that I'm going to devote any more space to said silliness here on the blawg.  That said, I think the best way to prevent the kind of misinformation that was disseminated yesterday morning is to address what happened yesterday, and what's going to happen next. So: here we go.

What would've happened if Vander had accepted the plea bargain?

The citation would have been amended from assault and battery to disorderly conduct.  Vander, through his attorney, would've pleaded "no contest" to the amended citation and would have been ordered to pay a monetary penalty. (Technically, in this instance, the penalty would be called a forfeiture and not a fine because this is a civil matter and fines can only be imposed for criminal convictions, but that's not altogether important.)  And that would've been the end of it: no trial, no further proceedings.

In my humble opinion: disorderly conduct, which is defined as conduct that causes or is likely to cause a disturbance, is probably the most accurate description of what happened here, and I'm kind of surprised that both of the young men didn't receive DC citations right out of the chute.  But that's not what happened, so we move on.

That sounds like a pretty good deal.  So why would Vander's attorney ask for the citation to be set for a trial?

There are a number of reasons a lawyer asks for a trial date in a situation like this one, ranging from his client saying "I didn't do it" to the lawyer thinking he can sweat out a better deal from the prosecutor on the eve of the trial.  I can't speak for Attorney Boyle, obviously, but I'd imagine the strategy of asking for a trial here is based on two factors: they don't think the City can prove the elements of the offense (discussed below), and/or they wonder if the complaining witness will show up on the trial date (more on that below, too).  You might notice, keen legal observer that you are, that the trial has been scheduled for June 3, about two weeks after Marquette's spring semester ends...

What happens on the trial date?

In the simplest terms: the City issued a citation to Vander.  Vander pleaded not guilty, which puts the burden on the City to prove the elements of the citation in court.  On the date of trial, the City will need to have its witnesses ready and able to testify before the court about what happened on October 24.  The most important of those witnesses, quite obviously, is the complaining witness, the young man who claims that Vander punched him on the mean streets outside the Qdoba.

What if the complaining witness (i.e., the kid who got punched) doesn't show up?

To proceed with the case, the City needs evidence, and in this case, that evidence will come in the form of testimony from the witnesses.  (Sorry, CSI fans: I don't think the City's going to spring for trace DNA analysis here.)  The City can and probably will subpoena the other civilian witnesses to the trial, and they can bring in the police officers to whom the complaint was made, but there will be two problems for the City if the complaining witness doesn't show: one is that the complaining witness's statements to the police about what happened on October 24 are hearsay and, in all likelihood, won't be allowed into evidence if the complaining witness is a no-show on the day of trial.  The other problem is addressed immediately below, and it revolves around ...

What's Vander's defense to the citation?

The elements of battery are pretty straightforward: to commit this particular offense, one needs to subject another to physical contact without the consent of the other person.  In his comments to WISN yesterday, Vander's attorney seized on that last element:

"The young man called Mr. Vander Blue, Vander Orange, and he invited the guy to step outside, and the guy said OK, and they both went outside, a little fisticuffs. I think one punch took place and that was it. That, in my opinion is not battery, because in order to have battery, you have to have it without the consent of [the victim], and it seems to me the invitation to step outside, which was taken, takes it out of the battery category," Boyle said.

In other words: if you agree to fight someone, you've negated one of the critical elements of a battery offense, because you've agreed to the physical contact.

Thus, the other problem for the City if the complaining witness skips out on the trial: it'll be very difficult to prove that the complaining witness did not consent to fighting Vander, unless he made some unusual comments to the people sitting around him like: "I am merely walking outside to fart because of the pound of nachos I just ate. I do not wish to engage Mr. Orange in hand-to-hand combat and I do not consent to any physical contact occasioned by Mr. Orange."  Absent that, there seems to be pretty strong circumstantial evidence that the young man went outside expecting a rhubarb. 

To sum up in fifteen words: if the complaining witness doesn't show, the City will probably have to dismiss the citation.

Could the kid who (allegedly) got popped sue Vander?

In theory, yes.  But he'd run into two problems, one legal and the other practical.  The legal issue I've already addressed: the elements of a battery claim in a civil suit largely mirror those found in a criminal/citation-level battery offense, so the issue about consent that I mentioned before would present the same pickle in a hypothetical civil suit for money damages. As for the practical issue: when you're seeking money damages (as the young man would be doing in this hypothetical civil suit) based on an intentional tort (like battery), you want your defendant to be someone who can, you know, afford to pay you money. Vander might be a well-known figure, but he's also a college kid with limited funds -- and, in all likelihood, the complaining witness wouldn't be able to try to recover from Marquette, unless he can somehow demonstrate that Marquette knew in advance that Vander would assault the kid and sanctioned/did nothing to stop it.

I think I've covered everything.  You can't possibly want to know more, but if you do: fire away in the comments.

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