D.A.'s Office To Start Charging More Domestic Violence Suspects

By Ralph Cipriano
for BigTrial.net

In an abrupt about-face, the beleaguered District Attorney's Office has decided to start charging more suspects in domestic violence cases, even if the victim declines to make a statement.

The D.A.'s office has been criticized privately by police for years for not following state law in charging suspects in domestic violence cases where the police observe injuries and know who the perpetrator is, with or without a victim's statement.

The D.A.'s about face, laid out in an email and a new policy statement, comes after a tumultuous few weeks where a Newsweek article featured the president of the local Fraternal Order of Police blasting D.A. Seth Williams for refusing to charge "iron-clad" cases.

The hundreds of cases declined by the D.A.'s office for charging included an embarrassing attempted bank robbery, where police caught a suspect inside the bank red-handed trying to break into a vault and tampering with an ATM machine. Even  though the cops had stills from a security camera video showing what the suspect was up to, and a written account of the incident from a bank security official, the D.A.'s office refused to charge the suspect.

A national audience of Newsweek readers was treated to the shocking spectacle of a large urban police department where the local cops union was renting a half-dozen billboards, putting up hundreds of lawn signs and going on the radio to run a "help wanted" campaign seeking a new D.A.

The same day the Newsweek story was published, a teary-eyed and self-pitying Seth Williams, announced he wouldn't seek a third term in a May Democratic primary because he had been caught red-handed accepting $175,000 in undisclosed cash and gifts, a subject under active study by a federal grand jury that's due to expire in two weeks.

The embarrassing bank job caper where the D.A. wouldn't charge the suspect was followed by tales of multiple incidents of domestic abuse, where the D.A.'s office, faced with the spectacle of a battered victim with genuine injuries observed by the police, and a suspect already in custody, declined in case after case to  charge the suspects.

The Big Trial stories featured a steady stream of embarrassing internal police reports and so-called "declination forms" from the D.A.'s office, where the D.A., contrary to state law, was declining to charge suspects in case after case, despite real harm inflicted on victims.

But all that changed on Thursday when Deputy District Attorney Michael Barry sent out an-email about changes in prosecuting "intimate partner violence cases."

In his email, Barry told police he was issuing his new policy directive so he could put his ADAs in the charging unit in a position where "they feel more comfortable charging difficult cases."

Seriously. In a city filled with bleeding victims of domestic violence, the officials at the D.A.'s office need a new policy directive from their boss so that when they follow state law they can "feel more comfortable charging difficult cases."

Instead of worrying about whether Seth Williams conviction rate is high enough.

Here's what Barry's email to the top cops said:

Over the course of the past couple months myself, John Delaney and Jim Carpenter of the Family Violence and Sexual Assault Unit have been working to find ways to increase the number of Intimate Partner Violence cases we charge. These cases comprise a large percentage of cases that we decline.   

To that end, tomorrow I will be distributing the attached memo to all chargers.  Our hope is that it will give them more specific guidance as to factors to consider when deciding whether to charge an IPV case, and put them in a position where they feel more comfortable charging difficult cases.  Our goal is to decrease the number of IPV cases that get declined, and to eliminate unnecessary declinations.  At this point, we are instructing the chargers that this memo applies only to live arrests, not Arrest Warrants.  We will work to expand it to warrants in the future.  

In reviewing this with some of my more experienced Charging ADAs, they requested that an emphasis be placed by the police department in assuring that interviews are done with responding officers after an incident.  I would appreciate it if you could forward that request to your Detective Divisions. 

Thanks as always for your assistance, and if there is anything I can do to help with this or any other issue, please always feel free to reach out. 

Michael Barry 

Deputy, Pretrial Division

In the new policy directive, Deputy District Attorney Barry wrote:

Through our own internal reviews and our communication with the police department and FVSA Unit, we have noticed that Intimate Partner Violence[1] arrests makes up a notable portion of our declinations. Significantly, a very large percentage of these declinations were based (most often properly) on a failure to get a statement from the victim, either due to their unwillingness or unavailability.  As with all things, we strive to improve our handling and review of these cases and meet our Unit and the Office’s mission to protect victims of violence and hold offenders accountable. 

In doing this review, we were mindful that IPV is in many respects of a different nature than our other evaluations.  Specifically IPV victims often fear retaliation from the offender, rely on the defendant for economic support, or are emotionally conflicted about involving police.

With these factors in mind, we would like to clarify and emphasize that the failure of a victim to give a statement is not –in and of itself- a reason to decline an IPV case.  As with all cases, you should look to the totality of the evidence to determine if probable cause to arrest exists. 

In cases without victim statements closely evaluate all other evidence, including specifically:

The existence of an Excited Utterance or other on-scene statements by the victim.  Please note that the 48D contains factors such as “Teary? Crying? Shaking? Frightened? Distraught?” that can be of great assistance in making this determination.  If these factors exist in conjunction with a sufficient on-scene statement by the victim, that can be the basis for probable cause, even without a follow-up statement.  Please also note that there is no prescribed time limit for an excited utterance, in fact it can still occur several hours after the incident.   

·       Whether police observed all or part of the assault.  If the police observed an assault to the extent that probable cause exists, please charge even if there is no statement or a refusal to speak from the complainant.  Absent evidence that the complainant is actually the dominant aggressor, do not decline a case simply because the initiation of the conflict is not yet clear, or because a complainant may have responded physically, or because the complaint refuses to cooperate.

·       Whether the complainant’s physical injuries or other evidence, such as the condition of crime scene, condition of clothing or the presence of criminal instruments on scene, can be the basis of probable cause or for corroboration for probable cause.

·       Whether the defendant made any statements at the scene or during the investigation.  Note: If the defendant makes an admission to the crime and corpus can be proven, you should approve the case.  Additionally, please consider whether defendant’s actions and demeanor, including flight, aggressive or intimidating demeanor and/or refusal to cooperate with police can form corroboration for probable cause.

·       Whenever possible, please consider evidence of prior abuse and the defendant’s criminal record along with all other evidence when looking to establish probable cause.  Please consider the possibility of 404(b) Evidence being submitted by the Trial Division.

  If a victim gives a full statement but refuses to sign, or partial statement and refuses or is unable to sign, and that statement is sufficient to form probable cause, approve the case. It will be the responsibility of the Trial Division to get an admissible adoption of that statement. 

       Please be mindful of the difference between a complainant refusing to give a statement and a complainant who is unable to give (or complete) a statement, or to review and adopt it, due to physical condition, the need for medical treatment or potential intimidation or fear of retaliation.

  Finally, do not decline a case for the failure of a detective to subpoena phone, medical or other records if there is already evidence sufficient to form probable cause. If the case is sufficient for charging, approve it and request follow up investigation via email. If necessary, the Trial Division will take responsibility for those materials.