The following is an exclusive lakingsnews.com Q & A with Washington D.C. criminal defense lawyer, David Benowitz. Mr. Benowitz brings a wealth of criminal defense experience and is considered one of D.C.’s top criminal law attorneys. Mr. Benowitz was kind enough to give us his time and answer questions we posed to him regarding the arrest and prosecution of Los Angeles Kings’ assistant coach, Mark Hardy. For more information on Mr. Benowitz’ criminal law practice, visit www.criminallawdc.com.

SCRIBE: What is the specific statutory charge(s) against Mark Hardy?

BENOWITZ: Mr. Hardy was “presented” on one charge of Fourth Degree Sexual Abuse, 22 D.C. Code Section 3005(2), which is a felony.  Presentment is the first step in a felony case, at which time the pre-indictment charge is read to the defendant, detention decisions are made (i.e. Mr. Hardy was released), release conditions are set (i.e. Mr. Hardy must stay away and have no contact with the complaining witness) by the presentment judge, and a preliminary hearing date is set.  Although Mr. Hardy is currently charged “by complaint” (merely a piece of paper issued by the government) he may eventually be indicted by a grand jury on additional charges.

The provision of the Fourth Degree Sexual Abuse statute that Mr. Hardy is charged under is:

“A person shall be imprisoned for not more than 5 years, and, in addition, may be fined in an amount not to exceed $50,000, if that person engages in or causes sexual contact with or by another person in the following manner:

(2) Where the person knows or has reason to know that the other person is:

(A) Incapable of appraising the nature of the conduct;

(B) Incapable of declining participation in that sexual contact; or

(C) Incapable of communicating unwillingness to engage in that sexual contact.”

SCRIBE: What is the punishment he faces, both statutory as well as practically speaking?

BENOWITZ: The maximum penalty Mr. Hardy faces under D.C. law is 5 years in prison and a $50,000 fine.  Practically speaking, there are D.C. Superior Court Voluntary Sentencing Guidelines that exert a great influence on the potential sentence that Mr. Hardy would receive if convicted.  Although judges are not required to follow these guidelines, most do unless there is a compelling reason to depart from them – such reasons are enumerated in the Guidelines.  The Guidelines are essentially a grid that takes into account the criminal history of the defendant and the charge.

If Mr. Hardy has no prior criminal convictions, he would be in Column A, the lowest criminal history level.  Fourth Degree Sexual Abuse is a “Master 8″ charge, which indicates that it is a relatively low-level felony offense, as the Guidelines range from Master 1 (most serious) to Master 9 (least serious).  Thus, if convicted, Mr. Hardy would be facing a potential sentence of 6 – 24 months incarceration.  The judge would impose a determinate sentence, of for example, 8 months. However, Mr. Hardy would be eligible for probation, which would result in him potentially not serving any jail time.  If convicted, Mr. Hardy would also be subject to registration as a sex offender for 10 years pursuant to 22 D.C. Code Section 4002.

SCRIBE: Based on your review of the facts, can you provide us with your analysis of the prosecution’s case as well as that of the defense?

BENOWITZ: Based upon my limited review, the prosecution’s case is going to revolve around the credibility of the complainant, her level of intoxication, and whether there is any reason she might have to fabricate her accusations (prior difficulties in their relationship).  There will most likely be no physical evidence to corroborate the complainant’s accusation, since no penetration is alleged.  The prosecution will also be investigating whether there is a prior history of similar incidents involving the complainant and/or others.

The defense will have to thoroughly investigate the complainant, locate any witnesses to both Mr. Hardy and the complainant’s activities prior to returning to the hotel, and will have to take a detailed look at the statement that Mr. Hardy allegedly made to law enforcement.  At the end of the day, this is a credibility contest between Mr. Hardy and the complainant, so it’s crucial to explore longstanding biases.

SCRIBE: Do you believe the prosecutors are overcharging with a felony to elicit a plea or do the facts, if true, support the felony charge?

BENOWITZ: Based upon my reading of the “Gerstein” (sworn statement of facts), if these facts are in fact true, then a Fourth Degree Sexual Abuse charge is supported.  Now, that doesn’t mean that the prosecutors didn’t intentionally charge Mr. Hardy with a felony in order to increase the pressure against him in order to force a guilty plea to a lesser charge.

SCRIBE: What is the criminal process in Washington D.C.? – we all have questions about “what happens next?”

BENOWITZ: Currently, Mr. Hardy is scheduled to have an “ascertainment of counsel” hearing on June 4, 2010.  That means that since Mr. Hardy is not indigent, he did not qualifiy for the appointment of court-appointed counsel at presentment.  He therefore needs to retain an attorney by the hearing on June 4.  At that hearing a date for a preliminary hearing will be set.  If Mr. Hardy had been detained at the presentment, the preliminary hearing would be used to determine if there was probable cause that a crime had been committed and that Mr. Hardy was involved, and were there release conditions that could ensure his appearance in court and the safety and the community.  At a preliminary hearing, a law enforcement official, most likely a detective, would testify about the investigation.

Since Mr. Hardy was released, the preliminary hearing becomes somewhat superfluous, but it is useful for his attorney as an opportunity to cross-examine the testifying officer and obtain information about the investigation of the case against Mr. Hardy.

Following the preliminary hearing, the case would potentially be presented to a grand jury, which would decide whether there is enough evidence to indict Mr. Hardy. If an indictment is issued, Mr. Hardy would have the option to proceed to a jury trial (since the potential penalty exceeds 6 months incarceration).  At some point in this process, the prosecutor (the United States Attorneys Office) may make a plea offer, in which Mr. Hardy would be offered the option to enter an agreement in which he might be able to plea guilty to a lesser offense and/or to gain some concessions related to sentencing.

We will be staying in touch with Mr. Benowitz throughout this matter. On behalf of our readers and Kings fans, we thank him for being our local eyes and ears.