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Sunday, May 1, 2005
Violence Cases Rarely Go to Trial; 8 of 10 Domestic Assaults Dismissed
FOR THE RECORD: Agnes Maldonado, who heads the New Mexico Coalition Against Domestic Violence, was not a victim of domestic violence as reported in this story, nor was she present when the first battered women's shelter opened. She has been happily married for 35 years.
By Mike Gallagher
Journal Investigative Reporter
Not many people involved in the prosecution of domestic violence cases in Metropolitan Court are happy that nearly eight of 10 cases resolved last year were dismissed before trial.
Except perhaps defendants, who had an almost 80 percent chance of not facing the consequences of charges they hit, shoved, threatened, choked, terrorized, or otherwise assaulted their domestic partners.
About 2,900 misdemeanor domestic violence cases those that don't involve great bodily harm were disposed of in Metropolitan Court last year. Felony cases are handled in state District Court.
The breakdown of Metro Court cases includes 33 convictions, 38 acquittals, 536 guilty pleas and 11 dismissed so they could be refiled as felonies.
And the big number: 2,278 dismissed by judges or prosecutors.
By any comparison, the percentage of cases thrown out is staggering.
For example, dismissals of drunken driving charges in Metropolitan Court have been widely publicized and criticized. Using the same statistical standards, the percentage of DWI cases dismissed is about 34 percent.
Domestic violence cases continue to pour into an overwhelmed system.
More than 3,800 cases were filed in Metropolitan Court last year. Many of the nearly 900 unresolved cases are still pending or were diverted to a pre-prosecution counseling program for first offenders.
While there are competing statistics on dismissal rates, most concede they are too high.
"I had the sense that it (dismissal rate) was between 80 and 85 percent," said Judge Theresa Gomez, who has been involved with domestic violence cases since the 1980s.
She is concerned that some defense attorneys are counting on the dismissal rate to get their clients out from under criminal charges.
"There is a culture within the defense bar. Don't plead guilty; the case will get dismissed, and 85 percent of the time they're right," she said. "I would really like to change that."
Domestic violence cases are difficult to prosecute for a variety of reasons, including fear or reluctance of victims to testify.
But a Journal investigation found various other system failures and roadblocks.
Prosecutors assigned to Metro Court are supported by only two victim advocates, who have the impossible task of keeping track of and staying in contact with thousands of victims.
The District Attorney's Office often mails subpoenas for victims to appear in court to addresses that are out of date or where the accused batterer lives. There is no money available to deliver the subpoenas in person.
Some Metro Court judges don't have good control over their dockets and fail to set firm trial dates. That allows prosecutors and defense attorneys to stall in bringing cases to trial.
Defense attorneys can work the system by asking judges for continuances and avoiding judges they think will try to keep cases on track.
Some police officers send cases to the District Attorney's Office with little or no investigation, so charges have to be dismissed.
"The dismissal rate is unacceptable," said Sandra Gardner, Gov. Bill Richardson's domestic violence czar.
"The system is broken, and it needs to be fixed."
Edna Frances Sprague is a New Mexico Legal Aid attorney who handles domestic violence cases in family court, where women go to seek protective orders from an abusive partner.
She said she has an average caseload of 200 domestic violence victims.
Most of those clients are also involved, as victims, in Metropolitan Court prosecutions. She said only a couple of them will see a successful prosecution in Metropolitan Court.
"The other cases get dismissed," Sprague said.
There is an easy excuse, and many involved in the system use it: Blame the victims.
"The victims don't show up for court."
"The victims can't be found."
"The victims have reconciled with their partners and won't testify."
"The victims are too afraid to testify."
There is some truth in that.
But Sprague says the victims she deals with are not being contacted by the District Attorney's Office.
Gary Cade, who heads the District Attorney's Metro Court Division, said "tracking down victims to arrange pretrial interviews with defense attorneys can be nightmarish. Often, they have left the premises our only address."
The District Attorney's Office can't afford to hire enough investigators to track down and personally serve subpoenas on victims, Cade said.
Instead, the office relies on the Postal Service using the address on the police report a method Cade concedes isn't effective.
There are now two victim advocates and one investigator in Cade's division to track down victims. The number of advocates has declined in recent years.
Some question District Attorney Kari Brandenburg's commitment to domestic violence prosecutions, in part citing the lack of advocates in the misdemeanor division.
One cop said the DA's Office doesn't have "the eye of the tiger" in prosecuting misdemeanor domestic violence.
But Brandenburg said the problem comes down to money.
"Every year, we go to the Legislature asking for funding for more advocates, and we don't get it," she said. "I can't transfer advocates from the felony division who are dealing with homicides. I don't think the public would stand for that.
"The Legislature puts more requirements on us but doesn't provide the funding."
Brandenburg agrees that contacting victims as early as possible helps prosecution cases.
This past legislative session, lawmakers approved a pilot project for Brandenburg's office that will pay for one lawyer, an investigator and two advocates to handle 500 domestic violence cases. The program should start this summer.
Judge Gomez said victim advocates are critical to getting victims to court and there aren't enough of them.
"They used to be in my courtroom; they would contact victims, explain what they could expect in court and what was happening to the case. Now they do clerical work."
Gardner lobbied for the pilot project.
"We want to be able to take some real success back to the Legislature to show what can be done with adequate funding," she said.
Hurdles to testimony
Getting victims to testify is key to reducing the dismissal rate.
But there are many obstacles.
One victim, who didn't want to be identified because she fears her ex-husband, said it was difficult getting someone to care for her infant daughter while she attended court hearings.
"I was in Metropolitan Court five or six times," she said. "I had hearings at District Court. I would show up and he wouldn't, and they would just put off the trial.
"It was very frustrating. I was at my wits' end."
Shannon Enright-Smith heads the Victim's Impact Unit for the police and sheriff's departments.
"You're looking at a transitory population that is often in a chronic state of crisis," Enright-Smith said. "You're asking an awful lot of a person to get to court five or six times before their case is heard."
She can list the problems faced by the overwhelmingly female victims: babysitters, time off from work, transportation, language barriers and educational issues.
"A victim receives a subpoena in English, a language she can't read," she said. "Or maybe they don't know what a subpoena is."
Enright-Smith said victims often complain they never receive subpoenas or notification that they need to be in court.
Getting them there is only part of the challenge.
"For a victim, this was the most traumatic experience of their lives," Enright-Smith said. "They go into the courtroom alone. They get so terrified, they can't stay."
Agnes Maldonado, executive director of the New Mexico Coalition Against Domestic Violence, said domestic violence cases are complicated legally and emotionally.
"In a drunk-driving case the system is dealing with one person. He's responsible for driving drunk. There is scientific evidence and police testimony. Domestic violence involves the entire family and the dynamics of that family."
In many ways, she said, felony domestic violence cases are easier to prosecute than misdemeanors.
"In felony cases, there is more evidence bruises, fractures, medical reports or hospital records," she said. "Misdemeanors tend to be more emotional and verbal abuse with less physical violence."
That's why the victim's testimony is crucial in a misdemeanor prosecution.
Change in law
Until the mid-1990s, if a victim didn't show up in court, the police officer who responded could testify about what the victim told him.
That changed with a U.S. Supreme Court decision that dealt with a defendant's right to confront witnesses and tightened rules on what the courts considered hearsay.
Court rules were rewritten to reflect that decision and have required that a prior statement of witness can only be introduced if it was taken under oath or meets certain legal exceptions.
"Many of our cases are word against word with no evidence or witnesses," said prosecutor Cade.
Last year, the District Attorney's Office began screening so-called "summons" cases.
In many cases, the suspected offender is not present when the police officer gets to the scene of the domestic violence call. After interviewing the victim and gathering any other evidence, the officer issues a summons for the suspect to appear in Metropolitan Court.
Once an officer determines that domestic violence has occurred, he or she is basically required to charge one of the people involved.
"We wanted to review those cases to see if we had evidence a tape from the officer belt-recorder, other witnesses, photographs of injuries or signs of a struggle," Cade said. "We also wanted to do a threat index on the offender to determine if the victim was high risk for greater violence."
Prosecutors also want to find out if the victim will cooperate.
"There is a cycle in domestic violence of people calling police," Cade said. "An arrest is made; they make up, want charges dropped, refuse to cooperate. Then it all starts over again."
Brandenburg said that while there are cases that get filed that shouldn't, she doesn't want officers to have too much discretion in whether to file charges.
"The nightmare for everyone," she said, "is what if we make a mistake, and the violence escalates or someone gets killed."
Defense attorneys agree the system is broken, but in a different way.
They argue cases are being brought that shouldn't be filed.
"The pendulum has swung too far in one direction," said defense and domestic relations attorney David Crum. "Police are being forced by the law to bring civil cases into a criminal court where they don't belong.
"What many people want when they call police is a referee," Crum said. "They don't expect an arrest or a criminal charge to be filed. But the law doesn't allow the police officer that role anymore."
Monica Baca, another defense/domestic relations lawyer, said, "We're dealing with people in unhealthy relationships. It is often difficult to determine who was the first aggressor."
There have been complaints about inadequate police investigations.
But advocates for domestic violence victims tend to give police and sheriff's deputies generally high marks.
"A three-line report is not acceptable," said Capt. Kevin McCabe of the Albuquerque Police Department. "Detectives review about 250 reports a week, and if someone isn't doing the job, we bring them in for retraining."
McCabe said there is strong evidence officers are taking a deeper look at more cases.
Lt. Gregg Marcantel of the sheriff's department said violent crimes detectives and/or a victim liaison review reports and often contact victims of misdemeanor complaints.
"We do a risk assessment to determine if there is an immediate danger or if this situation is escalating," Marcantel said.
McCabe points to the success of the Victims Assistance Unit that responds to requests from field officers to help victims of domestic violence.
"When it first started, we would get 30 calls a month," McCabe said. "Now we're getting 180 a month."
The District Attorney's Office tries, at a minimum, to get a plea to a domestic violence charge in every case when a victim cooperates.
That raises the incentive for the defense to dig in.
Typically, defense attorneys will fight for a plea to another crime because the consequences of a domestic violence misdemeanor record are increasing. Not in jail time, but in society.
"They don't want a domestic violence conviction on their record," attorney Crum said. "The impact of even a misdemeanor conviction is growing."
A domestic violence conviction can affect who gets custody of a child. It can hurt someone's chances of employment. It can raise insurance rates.
"They want to fight it," Crum said.
Brandenburg said, "They'll plead to anything but domestic violence, but we want a plea to a domestic violence charge to make sure they get the proper counseling because we know how effective it is in preventing future violence."
Brandenburg says there are defense attorneys "who step outside the ethical boundaries in playing the system."
Telling a defendant to leave the courthouse because the prosecution is ready for trial is one such tactic.
Advocates like Enright-Smith said defense attorneys will try to drag out cases to wear victims down so they stop showing up and the case gets thrown out.
Metropolitan Court Judge Gomez said the large number of cases can make it difficult for judges to firmly control their dockets.
"There are a large number of requests to continue hearings at a later date," Gomez said. "They come from both prosecutors and defense attorneys. I think it's better to conclude these cases quickly."
More than 6,000 continuances were granted in domestic violence cases in 2004. Judges grant continuances for any number of reasons but say that if they are tough refusing them, they find themselves being disqualified by defense lawyers.
Defense attorney Baca said defense attorneys are required to do everything ethical on behalf of their clients.
"I don't see that manipulation," Baca said. "Judges get angry at defense attorneys if their clients aren't present."
She and Brandenburg agreed that defense attorneys are required to hold the state to proper court procedures and time frames.
Agnes Maldonado was a victim of domestic violence. She was around when the first domestic violence shelter in Albuquerque opened its doors in the 1970s.
For her, the time for the "blame game" is long past.
"I don't think it is right to blame the courts or the police officers or the attorneys," she said. "We all need to do a better job."
So is anyone to blame?
"We all have to take responsibility for it because we're all interdependent," Brandenburg says.
One of her campaign themes when she ousted Jeff Romero in the 2000 Democratic Party primary was a pledge to improve on domestic violence prosecutions.
That has been easier said than done, especially in Metropolitan Court.
"We're dealing with a system that is currently overwhelmed," Brandenburg said. "We've spent thousands of hours over the years trying to figure out how to make it work. I feel like I'm pedaling and pedaling and not getting anywhere."