Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.
Story highlights
Danny Cevallos says this is not the typical misdemeanor battery case, and the consequences could be far-reaching
Cevallos: There's more evidence available than in a typical case of this kind of crime
Donald Trump’s campaign manager, Corey Lewandowski, has been arrested and charged in Florida with misdemeanor battery of the former Breitbart reporter Michelle Fields, according to police.
According to the police report and interview of Fields, she indicated that after she asked Trump a question at an event, she “felt someone yank her left arm” and that she “fell back but caught herself from falling.”
Independent video and audio evidence apparently backs up this account, though the Trump camp has been quick to declare that Lewandowski is not guilty.
There are two main issues here: One is the law and a simple assault. The other is the set of collateral consequences of criminal charges for a high-level campaign manager.
The charges
In Florida, the crime of misdemeanor battery occurs when a person actually and intentionally 1) touches another person against the will of the other or 2) intentionally causes bodily harm to another person.
Put another way, as applied to these facts, all the state needs to prove is 1) intentional, 2) touching and 3) the absence of consent by the victim.
Under Florida law, misdemeanor battery does not require the prosecution to prove any injury to the victim; the unconsented touching is enough. Indeed, one Florida court has observed that even a harmless tossing of ravioli at your classmate might be enough to constitute battery.
The point is that the elements of misdemeanor battery are relatively easy to make out. More often it’s the credibility of the complainant that a defense attorney exploits to get to “not guilty.” And, in many battery (or “assault,” depending on the jurisdiction) cases, there is only the uncorroborated testimony of a complainant and possibly some injuries.
In this case, you have witnesses, video evidence and even separate audio evidence.
The prosecution and defense may interpret these in different ways, as will others based upon their candidate loyalty or political leanings. No matter how you see the evidence, one thing is for certain: this case has much more evidence than one sees in the typical battery case.
Was Lewandowski ‘arrested’?
Was the campaign manager arrested? The Trump team says no way. Jupiter police have countered that this was an arrest. Who’s right?
For misdemeanors, Florida criminal procedure provides for a case to be initiated in two ways. First, a person may be given a Notice to Appear. This is a written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.
The other way is the traditional physical arrest: the person may be arrested by law enforcement and taken into custody, pending a hearing.
The Jupiter Police Department has said that a Notice to Appear is equivalent to an “arrest” even though they may be separately styled under the rules. Of course, whether noticed to appear or physically arrested, you still are a defendant, and you still have an open criminal case against you.
For the defense
This case will come down to how a judge or jury interprets the video evidence, the audio evidence and the credibility of witnesses.
It was commonly believed that the advent of portable cameras and the proliferation of video evidence would bring objectivity to trials, but the sad truth is that video evidence is not that different from eyewitness testimony. With eyewitness testimony we believed what we wanted to believe. It turns out that with video, we often also see what we want to see.
So, the defense will seek to convince a court that the evidence does not prove a crime beyond a reasonable doubt. They may also explore the privilege to use nondeadly force in defense of others.
In Florida, a person is justified in using nondeadly force against another to the extent that he reasonably believes that force is necessary to defend another against the other’s imminent use of unlawful force. And of course, in Florida, a person who uses defensive force does not have a duty to retreat.
Lewandowski’s defense team may try to demonstrate that in the chaos of a crowded Trump event, he reasonably believed that Trump was about to be a victim of misdemeanor battery himself – after all, we know all that would be required is a nonconsensual, intentional touching.
Sure enough, Trump tweeted Tuesday that Fields had touched him after the March 8 news conference in Jupiter, Florida.
“Why is she allowed to grab me and shout questions? Can I press charges?” he tweeted. Under this permissive statute, if the elements and the evidence exist, Trump is equally protected by Florida law as is any other person in the state.
What if Lewandowski is convicted?
Misdemeanor battery is a comparatively low-level criminal offense on the spectrum of horrible things humans do to other humans. If the incident caused great bodily harm, permanent disability or permanent disfigurement, then it would have been charged as a felony aggravated battery, or some other more serious crime.
Instead, this case is charged as a misdemeanor of the first degree, which carries up to a year of incarceration. Of course, that’s the statutory maximum. It’s not likely that this defendant would receive the maximum, unless he is a recidivist or there are some particularly aggravating circumstances.
Collateral consequences
Criminal defense attorneys call them “collateral consequences.”
They are the universe of woes that come along with an arrest or a criminal conviction, apart from the ordeal of the criminal prosecution itself. Even arrests without a conviction create a splash of electronic and paper records, with far-reaching ripples.
Police arrests are forwarded to federal agencies, separate local, state, and federal records are generated, and sometimes remain out there in the cloud, even if you are acquitted of the crime.
The impact of the charge is magnified given that it involves the campaign of the front-runner for a major party’s presidential nomination. And for a professional like a campaign manager, even an arrest and an open case can be a real impediment.
Of course, if your candidate makes it all the way to the White House, you may not have to worry about a possible conviction affecting your future employment – at least for four to eight years.