As reported last week, now former Minnes Viking’s CB Jeff Gladney and 2020 1st Round pick has been indicted by a Texas Grand Jury of Felony Assault of a Familial Household member with their Breathing Impeded. Here is a copy of the indictment.
Based on the information contained in the indictment, this is how I interpret the chain of events: It is alleged that the parties engaged in a verbal argument that turned physical when Mr. Gladney allegedly began to choke the victim (his romantic significant other) and that choking action allegedly caused the victim to lose the ability to breathe. Mr. Gladney then allegedly punched the victim numerous times and then allegedly shoved her into a car window.
Grand Jury Process
As seen above, Mr. Gladney has been formally charged by a grand jury. However, what does that actually mean? In the State of Texas, every felony must be indicted by a grand jury unless the Defendant chooses to waive the indictment. The grand jury gets to hear all evidence the prosecution has and that includes evidence that may be deemed inadmissible at trial such as hearsay. Thus, since Mr. Gladney was indicted, the grand jury heard all the evidence that the prosecution had at the moment and determined that there is sufficient evidence for the case to go forward.
Building a Domestic Violence Case
Those who has ever prosecuted a domestic violence case knows they are so difficult to get a conviction on. That is because often times the alleged victim is uncooperative. Currently, the alleged victim is cooperative. That being said, what could the prosecution base their case on if the victim decided later on in the legal process not to cooperate?
1. Independent Witnesses
In domestic violence cases, true independent witnesses are few and far between. That being said, true independent witnesses are a godsend because they do not have a dog in the fight. Unless they have some relationship to one party, they tend to have high credibility with a jury. However, even independent witnesses do not want to get involved. Most will try every trick in the book to get out of testifying. However, if they are subpoena they do not have much of a choice but to cooperate.
2. 911 Call/Jail Calls
Is there a 911 call(s)? If so, check it for excited utterances. You might even get lucky and even hear the Defendant at the other end of the call. My office once prosecuted a domestic violence case where the defendant was using a Taser on his girlfriend and you could actually hear the Taser on the other end of the 911 call zapping the victim. It was a very compelling piece of evidence.
If he was arrested, did he make any calls from jail? I once obtained a conviction against a Defendant without the victim testifying in part because the Defendant called the victim after the incident to apologize what he did. He stated how sorry he was about 30-40x during the call. Another Defendant called the victim from jail and was confronted by the victim with, “Do you have any idea how hard you kicked me?” His response (clear as a bell), “Ain’t nothing I can about that now.” Needless to say, all three men were convicted or pled guilty and served jail time.
3. Forfeiture by Wrongdoing
Texas Code of Criminal Procedure §38.49 states as follows: (a) A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness:
(1) May not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and
(2) Forfeits the party’s right to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoing.
Thus, if the victim in the case becomes uncooperative at the alleged hand of Jeff Gladney, then he cannot hide behind the Confrontation Clause and all previous inadmissible hearsay comes in. As previously reported by ESPN, Mr. Gladney attempted to bribe the victim and attempted to intimidate the victim into keeping quiet. If the victim eventually decides not to cooperate and a nexus was established between her failure to cooperate and the Defendant’s actions in procuring that unavailability, the prosecution could use everything that the victim said to law enforcement. This is important because one of the elements of this crime is that the victim’s breathing had to be impeded. If the victim doesn’t testify, Mr. Gladney would not be convicted of strangulation because there would not be any admissible testimony to that effect. That being said, using Forfeiture, law enforcement could testify that the victim stated to them that her breathing was impeded. Now you add in the evidence of the alleged attempt to silence the victim and you have the formula for a conviction as charged.
Matthew F. Tympanick is an Associate Attorney at Wicker Smith in Sarasota, Florida. He is a graduate of University of Massachusetts School of Law where he served as a Public Interest Fellow and as a Staff Editor on UMass Law Review. He was previously a felony prosecutor in Sarasota, Florida. In over three years as a prosecutor, he prosecuted thousands of domestic violence cases. You can follow him on Twitter @Tympanick20.