A College Murder

Domestic Violence is one of the most difficult crimes to prosecute.  I have successfully navigated through the prosecution waters without a stint in a domestic violence bureau.  To be honest, it's something I've avoided.  I've only handled one domestic violence case, a murder, where the husband claimed he stabbed his wife because she was going to leave him.  It was an extreme emotional disturbance defense, but the case never went to trial.  The husband killed himself in jail before the trial began.

But many of my cases are DV related.  Many of my witnesses have open DV cases.  Violations of orders of protection abound.  The issue with DV cases from a prosecution standpoint is that most of the victims want to drop the charges almost immediately.  Every DV prosecutor I know reads the paper each day hoping that one of their victims is not the latest name on the homicide list.

In Virginia last month, an especially tragic DV case went to trial.  24 year old George W. Huguely, V, was accused of killing his former girlfriend, Yeardley Love.  Both were University of Virginia lacrosse players.  Alcohol was involved, as was a history of DV related behavior for Huguely.

The murder occurred in the late evening and early morning of May 2-3, 2010.  Ms. Love died of blunt force trauma to the head, as a result of Huguely striking her head against the wall during an argument.  Huguely claimed in an interrogation that they did have an argument, but that Ms. Love's head struck the wall accidentally.  The jury disregarded this claim, in part because the force needed to cause the injuries would be much more than an accidental hit to the wall.

Huguely was drinking all day long and went to her room to confront Love.  A damning piece of evidence was an email Huguely sent her a few days before the murder that read, "I should have killed you."  The email was in response to Love's alleged infidelity.

The case brought to the surface many issues that simmer below the radar on college campuses - alcohol abuse, violence, domestic violence reporting, and restraining orders.  It all culminated in the tragic and horrific death of a beautiful young woman and the imprisonment of a young man.

DV victims deserve every bit of help that we can give them.  Women, and men, should not have to suffer through abusive relationships and feel they are imprisoned by them.  They need to see the road out and given encouragement to take it.

The problem in some cases is victims and defendants can learn to abuse the system.  Once the cycle starts, and the police report is taken, it is easy to stay in it.

Jamison Koehler just posted a link demonstrating this.  A woman calls the police during an argument with her husband.  She tells the 911 operator, "I need to have this man out of my house.  I need to have him arrested."  I don't know more about that case to discuss about it, but it shows the problem.  A simple phone call to the police can create a chain of events that leads to a husband's arrest for DV assault and him taken to jail for a period of time.  Then, the wife can show up to court and ask to drop the case.  The next time he gets drunk, is out too late with his friends, or cheats on her she'll call the police and do it again.  The threat of a DV arrest is then used as a sword, not a shield.

I'm not saying this happens in every DV case.  In fact, I'd argue this is the exception, not the rule.  But it is the same problem as wrongful convictions.  Each wrongful conviction or arrest based on false charges undermines the credibility of the entire system.  It leads to jaded prosecutors, judges, advocates, and defense attorneys.  Where the first thought should be 'how do we help this women', it can become 'is she lying?'

It's a constant struggle in the minds of a DV prosecutor.  It's a constant threat in the subconscious of every prosecutor.  I have never had a witness harmed in a case, but the thought is always there.  When a witness wants to drop the charges, we always have to ask why.  Was it a threat, bribe, a lie from the beginning, or does the person just not want to deal with it?  Every wrongful conviction and invalid arrest negatively impacts valid arrests and credible convictions.  It creates higher hurdles for the prosecution and police throughout the investigation and trial.

As for Huguely, he was convicted of second degree murder and sentenced to 23 years in prison.  The jury had recommended 26, but the judge, who has the final say, imposed 23.  In New York, the jury is told not to ever think about sentencing in a case.  They cannot and do not provide a recommendation.  It shocked me when I researched this case to discover Virginia jurors do.  I like New York's system better.  Let the juries decide guilt or innocence only and let the judge decide sentencing.  

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Decline to Prosecute

It's no secret that I was born in the Bronx.  Well, my legal career was.  My infancy was in the Bronx DA office, criminal court bureau.  There was three weeks of training and then we were thrown into a frenzy of misdemeanor activity.  We can call that the toddler stage.  I transformed from neophyte to an adequate attorney, eventually becoming competent.  Grand jury, vehicular crimes, and felony trials were adolescence.

Complaint room, arraignments, MCP, Part 20, 30, 40, 50.  These were my daily assignments.  The Bronx DA office and surrounding courts were open 365 days a year from 7 a.m. to 2 a.m.  It's not your typical court which mixes perfectly with your atypical area.

I started with 45 colleagues and joined a group of 400 ADAs to prosecute crime in a population of 1.4 million people.  That means one ADA for every 3,500 people (compare that to my current county where there is one ADA for every 10,300 people).  Why so many ADAs?  The Bronx sees more violent crime than any other county (despite huge reductions over the last two decades) and also has an incredible amount of arrests per year.    

An article came last week about the Bronx DA's office complaint room policy of declining to prosecute cases with uncooperative victims.

I've explained in a previous post how a case moves from arrest through trial.  In another post, I discussed how the complaint room works and argued against upset police officers that took umbrage at the Bronx DA for declining to prosecute so many cases.

This is how the complaint room works.

ADAs are assigned to various eight hour shifts ranging from 7 a.m. to 2 a.m.  A supervisor also covers an eight hour shift during the day and ten hour shift at night.  There is also a bureau chief who oversees the operation of the complaint room and arraignments.

The complaint room has since been remodeled.  It used to be a large space cut by makeshift cubicles, slicing the area into private rooms and cubbies.  Some cubicles had doors, some did not.  Some had working computers, printers, and telephones, and some did not.  I actually enjoyed the early shift because it allowed me to get the best cubicle and also to get out early.  The cubicles provided a measure of privacy, but still allowed each person to overhear what was happening next door.

ADAs waited for cases to come through the support staff who screened the cases and placed it into one of two bins - PSNY and victim.  PSNY meant victimless crimes like gravity knives, drugs, or DWI.  As a misdemeanor assistant we were only allowed to screen and write up misdemeanor cases, both PSNY and victim, and all narcotics.  Once I graduated to felonies, we could write up all crimes.

The ADA read through the paperwork and then interviewed the officer, either over the phone if he is at the precinct, or in person if he is at the complaint room.  The ADA is determining whether the police lawfully arrested a person, whether the search meets Fourth Amendment standards, whether the identification is suggestive, and whether the police need to do more investigation.  If it is a valid arrest, the ADA will draft the paperwork for the officer's signature.  If not, the ADA must conference with a supervisor before declining to prosecute it.

In victim cases, the procedure is similar.  Except that after speaking with the officer, the ADA speaks with the victim who has come to the complaint room.  One of three things happen.  The victim tells you he/she does not want to go forward, the ADA decides a crime occurred and moves it forward, or the ADA decides a crime did not occur or there isn't enough evidence and declines to prosecute the case.

The article discusses cases where victims do not appear in the complaint room.  If a victim didnot appear in the complaint room, we sent police officers or detectives to look for him/her.  We call their phone.  We do everything in our power to find them and speak with them.  I have spoken to victims over the phone, in the hospital, and in person, while in the complaint room.  A case only gets declined to prosecute when the victim fails to appear for no reason, we have made numerous attempts to find them, and the crime is a low-level offense.  Serious offenses with evidence other than the victim's word will be written up and moved through the system to arraignment.  Again, this is my experience.

Just one story to share that should give you insight into what it was like to work there.  I picked up a domestic violence case.  I spoke with the officer, who informed me the victim was present with her child in the waiting room.  She only spoke Farsi, but possessed enough English to say she did not want her husband charged with assault.  She wore a hijab and niqab, covering her entire face.  Only her eyes protruded the veil, which showed a purple circle forming around her left eye.  We used a translator service through AT&T, but I had to call into it.  I called the service, finding a Farsi interpreter, from my cubicle while the victim sat in the cubicle next to me on a different phone.  I spoke to the interpreter, who translated and relayed it to the victim next to me.  She politely informed me that she did not want to press charges.  I politely told her she should because this was the fourth time.  She told me, through the interpreter, that she would press charges the next time it happened.  She would wait for the fifth time.  I said the fifth time could mean her children would lose their mother, but she refused to sign any paperwork.  And so it went for thirty minutes. 

So what do you do with a woman who is assaulted every few months?  She would call the police to get her husband away from her for the night, but then refuse to press charges because she doesn't want him in jail.  She wants him home so he can work and make money.  Is it okay to decline to proseute one time?  Two?  What is the correct number when the victim refuses to testify?

We declined.  The victim spoke to our crime victim's advocate who specializes in domestic violence before we made the decision.  The victim decided she would never testify or sign the charges.  Therefore, we had no evidence.  And so is it right to keep a person in jail with no evidence?  Even though he is an abusive husband?  Do we prolong the case through the system when the end is already written?

Obviously I still think about it.  I hope she's okay and that there was no fifth time, although I suspect there was.  It's odd the cases that trail in my subconcious, springing forth like the villian in a horror movie while I'm trying to sleep.

The numbers do not lie.  The Bronx declines to proscute more cases than any other borough.  Cases drag through the court system and victims' emotions pass through a spectrum, ranging from initial anger to an ultimate indifference when a case comes up for trial two years later.  There are methods such as subpoenas and warrants that are used in more serious cases.  But if the victim never wants to cooperate after speaking with the police, the DA's office, and crime victim advocates, should a low-level offense be forced through the system until it dies on speedy trial grounds?  What would that do to a system that is already operating every minute of the day to handle its current workload?  And the ADAs and public defenders who barely keep their head above water on cases where victims are actively involved?     

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Domestic Violence Report

I've read about blood-curdling screams.  I imagined it was just a very loud scream.  Maybe I'd even heard one before, although I couldn't remember one.

That was until Sunday night.

One of the few snowfalls of the season was progressing to fill the ground and cars with a white cover that would remain only as long as we would let it.  The windows were shut tight against the wind, which seemed like it was finding its way in anyway.

The television played in the background while my wife and I conducted various chores.  Then, the scream.  Long, high-pitched, and retching.  It cut through the snow and followed the wind into our home.  Someone turned the television off.  It may have been me.  I don't remember.

My wife and I looked at each other, each hoping the sound came from the now silenced television.  It erupted again, truly soaking into our skin and letting us know all was not right in someone's world.

At the rear window, I looked long enough to see an older woman holding a younger one.  The younger woman was bent at her waist, facing the ground and letting out screams that could rival the worst thunderstorm.  A man jumped into the driver's seat of a black truck and sped away, slipping on the slick roads.

I watched the women hold each other; the older woman coaxing the younger one inside.  Screams billowed from the younger one who refused to move.  They weren't asking for help and neighbors strode out of their houses to their cars, like nothing was happening.  Should I call the police?  Did they want me to?  Did they call the police?

Even an ADA has reservations, apparently.  The black truck circled back and I didn't know what to do.  Should I run and grab my phone from the living room and call the police or wait and watch as there needed to be a witness and someone to intervene if necessary.

It wasn't necessary.  The driver of the truck stopped in front of the house, somehow disregarding the wailing from the porch, and picked up the winter hat he had dropped.  He sped away again in the snow.

A police car appeared moments later.  Then four more followed.  Flashlights lit my house and the neighborhood's backyards as officers searched for someone who had left.

I spoke to the officers, some of whom I knew.  It was a domestic case.  The driver had hit his girlfriend on their front porch and took off.  Neighbors called the police when they heard the piercing cries.  The girlfriend did not want to report it or proceed with charges.

Domestic violence cases are difficult to handle.  Officers have told me stories of weekly visits to the same location.  A victim will call the police when their significant other is abusing them.  The police will lock the abuser up for the night.  The next day the victim will drop the charges and allow the abuser back home.  It's a difficult cycle for the victim to break free from.

That cycle is not the case in every domestic incident, but a lack of cooperation is more frequent in those cases than in others.  The police pass the cases on to our office.  Then, our domestic violence ADA's handle the case.  Some victims stand firm and testify against their abuser.  Some victims flatly refuse to cooperate.  Some need coaxing.  Some we must force because the situation is so dire. 

The cycle usually follows this pattern when a victim does not cooperate:  1) the victim reports the abuse to the police, 2) the victim files a report and presses charges, 3) the defendant is released from custody and told to live somewhere else, 4) the defendant and victim reunite at some point, then 5) the victim indicates the defendant has changed and does not want to proceed.

The bureau takes a toll on the ADA's.  They only handle domestic cases, which should tell you about the number of cases there are if an entire bureau is dedicated to it.  Every case has the potential to turn out badly for the victim.  There are horror stories of an abuser let out and taking revenge on the victim hours later.

What can you do when the victim refuses to testify against their attacker no matter what the consequence?  The ADA's in this bureau are dedicated to eradicating violence against women.  They usually have a vested interest in it and have participated in clinics throughout law school.  Like any DA's office some are conscripted into the bureau, but then excel.  All of them worry that the worst will happen to one of their victims no matter what the ADA does. 

As for my neighbor?  She never wanted to proceed and we just have to hope things do not end badly.  Do you think domestic violence cases should be handled differently from other cases?  How so?

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