Does Lack of Desire to Prosecute Matter for Prosecutors Deciding Lindsay Lohan's Fate?

by Robin Sax

TMZ reported today that the Palm Desert Police Department has turned its investigation over to the Riverside County District Attorney's Office,  who will decide whether to charge Lindsay Lohan with battery.

They went on to say, “The case would be an uphill battle, because alleged victim Dawn Holland says she will not cooperate and does not want Lindsay prosecuted." But do prosecutors really think lack of cooperation makes a case unprosecutable? The answer is no.

In California, the only crime in which a victim has a legitimate say in whether or not to cooperate is in sexual assault cases. A victim's desire to prosecute or not may be relevant to the decision by the prosecution on whether they file charges, but it is not outcome determinative. Victims of a crime are merely witnesses to a case. They are not a party to the suit. The D.A. is, therefore, not their lawyer, nor do they have the client decision rights that one would have in a civil case.

Frankly, as a prosecutor, sometimes a non-cooperative witness is the best type. There is no better way to prove a case than to show that the witness is under the power and control of an influential person. A non-cooperative witness could have been paid off,  wayed, or influenced by other pressures. A skilled prosecutor will use examples of controlling behavior and even a change in stories to show the power and sway of the defendant. Then, they will take statements during the heat of the crime and early in the reporting as a method to impeach the witness, prove the power and control and the underlying case.

The early reports and statements (as opposed to the ones on the stand) are usually viewed as most honest and telling because they are often made before a witness has a chance to lie, fabricate, or be swayed.  As such, if Dawn Holland lies, those early reports will come in to impeach her and to corroborate the true version of the facts.

It will be interesting to see if the D.A. in Riverside determines that the lack of desire to prosecute holds here, when they regularly prosecute domestic violence cases, gang cases, and other batteries when the victim is undesirous. I know, because I worked in that exact office in addition to my time in LA.  And the most successful cases were the ones where the victim did not want to be there--no issues of an axe to grind, no issues of falsifying charges to 

gain advantage in some other case.

I am not saying that this case is the strongest in the world, nor am I saying that Dawn Holland is either a good person or a good employee. As a matter of fact, her blabbing to the media and HIPPA violations are worthy of the loss of her job and the punishment that is likely to come.

Still, the bigger questions remain, regardless of the Dawn Holland incident. Why  in the world did Lindsay not take a drug or alcohol test?  Why was she out past curfew? Why even be in a situation that reeks of a violation?

There is only one answer that makes sense and it's not really news. The reality is that Lindsay Lohan is an addict. Addicts are desperate and will do desperate things, including battering someone to cover up their use and abuse. The only thing that remains  to be seen is can Lindsay Lohan get out of her own way, help herself and get some control over her terrible addiction and demons?

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