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Blind Justice

Public defenders say spousal abuse prosecutions are too aggressive

Since before his election in 1994, local activist women's rights groups have targeted Sonoma County District Attorney Mike Mullins for not being aggressive enough in prosecuting domestic violence cases. But the people on the other side of the courtroom in those cases, lawyers from the county Public Defender's Office, contend that the opposite is true, that many of these cases are being pursued with unnecessary and counterproductive harshness. One central objection is that, since the adoption in January of tough new state laws and stringent spousal abuse protocols by the Sonoma County Law Enforcement Chiefs Association, most cases of domestic violence are being filed as felonies, regardless of the severity of the incident that sparked it. "There can be no mark on the complaining party, there can be nothing really substantial happening other than a verbal assault--maybe a threat, maybe a push--and it's remaining a felony, as opposed to a misdemeanor or [case subject to] diversion," says Deputy Public Defender Karen Silver.

"Frequently I'm having the experience of my clients accepting felony pleas in cases where there's no injury and where this is going to affect them for the rest of their lives."

The April 15 murder of Maria Teresa Macias--the 37-year-old Sonoma woman who had sought help repeatedly from the Sonoma County Sheriff's Department and District Attorney's Office before being gunned down by her estranged husband--has focused public attention on the need for even stricter enforcement of domestic violence laws. Sheriff Mark Ihde this week promised procedural reforms and asked state Attorney General Dan Lundgren to review his department's handling of that case.

But public defenders say the courts already are clogged with alleged batterers and that, at least in some cases, justice is not being served by tougher sentencing.

A felony conviction can carry up to three years in state jail, although first offenders usually get lesser sentences. "We're seeing the use of felonies as a terrible breakup pattern on the family," says Sonoma County Public Defender Lou Haffner. "Something that might have been healed with diversion or treated differently now is a pry bar to crack the family apart."

These days, everyone does some time, Haffner adds. In cases where there are no injuries, "you're going to be guaranteed some jail time, not in a work program, usually 60 to 90 days," he says. "As the injuries are more significant or if you've got a prior, you're building up to a year. But I have not seen anybody not go to jail. Everybody's going to jail. And that used to not be the way it was. It used to be work program, volunteer work, some respect for the person's job.

"And now that's not happening."

Until the first of the year, first-time offenders could be sentenced to counseling instead of jail, a program known as diversion. That option was removed by the state Legislature in a decision that neither the local defenders nor the prosecutors favor. "I think it's horrible," Silver says bluntly. "I think it's reasonable, especially when counseling is usually the thing that's indicated for punishment, to allow the first-time offender to go through [counseling], which is a yearlong program that costs [the defendant] money and everything. If they successfully completed it, I think it was reasonable to have the case dismissed. That no longer will happen; they will always have a conviction now."

Before the diversion program was eliminated five months ago, the Sonoma County Probation Department had one officer handling 350 diversion cases with no computerized records to gauge the success of the program.

Still, county prosecutors bemoan the loss of the diversion option. "I was sorry to see it go," Mullins concurs mildly. "It was a tool that could be used, but I agree it could be abused. I can see why it was eliminated, and we're dealing with it as best we can."

But Marie De Santis of Women Against Rape sees that change as a major victory. "Domestic violence had been defined, up until Jan. 1, as a victimless crime, by virtue of being eligible for diversion," she argues. "What kind of an insult is that?"

She scoffs at the complaints of overaggressive prosecution. "They're just whining," she says of the public defenders. "That just isn't the case. I've never seen anyone ever get a conviction for just shoving." As for the women who protest the prosecution of their partners, De Santis says, "I know that it exists, but let's see some numbers. It's a myth that has been exaggerated by the DA's office as an excuse not to prosecute cases." In 1994, the last year for which records are available, the District Attorney's Office filed 703 domestic violence cases; 38 of those victims declined to prosecute. Regardless of vantage point, it is clear that the number of cases both county prosecutors and defenders must handle has increased significantly. Under the new countywide Domestic Violence Protocol, officers are obligated to make an arrest in any incident in which one party is injured, and the person arrested must go to jail. Moreover, all of these cases are now automatically forwarded to the district attorney for prosecution.

The result has been an estimated 50 percent increase in the number of cases being submitted to his office, Mullins says. "They're sending us all the cases, not just the ones they feel are prosecutable," he observes. "But even so, we're still not rejecting a higher proportion of cases than we did before."

One reason may be a new policy that does not require the victim in domestic violence cases to press charges before the case is filed. "We have a 'no drop' policy, which means that even if the victim wants a dismissal, we won't drop it," says Mullins.

This is a particularly sore point with the defenders. "We're seeing a lot of victims, which we rarely see in other types of cases," says Haffner. "A kidnap victim, a robbery victim, we don't talk to them. But these kind of cases, the spouses or significant others come talk to us desperately."

Prosecutors "are actively serving people with subpoenas, even though the victims or complaining parties have made it perfectly clear that îit's all over, it just happened once, we don't want it to go any further, it's already been too much of a deal at this point.' The district attorney is not respecting that," Silver explains. "We're seeing a lot of people, especially women, who feel victimized by the DA's office because they're not being heard."

Indeed, the new laws are affecting the cases from beginning to end. "[Prosecutors] also are not listening to the complaining party in regard to what they want as the outcome of the case," offers Deputy Public Defender Lynne Stark-Slater. "They could care less if this person is the working party in the household; they're usually going to seek jail, regardless of what the complaining party says. So we're seeing more and more victims come out of this whole thing feeling victimized and they wish they had never called the police." The increase in domestic violence cases being prosecuted by the District Attorney's Office means a corresponding surge in the workload at the defender's office, a phenomenon that is having a profound impact on the local court system. Haffner says that 40 percent of his staff's time is now spent on such cases, and the local courts are feeling the burden, too.

Although it has a certain amount of elasticity, "the system can only deal with so many cases," he explains. "You can take a temporary surge, but if suddenly that becomes regular, then the system has to adjust. There are still no more judges. There are still no more courtrooms. With more cases coming in, if you label those cases 'undealable,' then some other cases that were previously labeled undealable suddenly become dealable.

"The market price of cases changes, because you can only deal with so many cases."

Due-process laws require that anyone arrested must be arraigned within 10 working days, but cases that go to trial may not be heard for three months or longer while the defendant often remains incarcerated. That compounds the problems that brought the household into the criminal justice system in the first place, critics say.

"If a man is charged as a felon and can't bail out, he is in jail for at least 90 days, until the case is resolved," Haffner says, "and that has a terrible effect on the family. He loses his job, he can't pay the rent, the whole family is wrenched apart. Under normal circumstances, there would be a way to bring them back together again."

That is particularly true with clients at the Public Defender's Office, which by definition handles indigent defendants who can't afford a lawyer. "So you're not even starting out with a stable economic situation." says Stark-Slater. "You throw at least 90 days of jail into that, it really destroys things economically."

The emotional toll can be equally devastating. "If the stresses are bad and the family is fortunate enough to stay together during the 90 days or however long it is, certainly the stressors are gong to be worse when that person is re-leased from custody," she adds. "There's very little domestic violence counseling that can go on in the jail or is provided in the jail. So absent that, they're really released into a situation with more stressors than they had before, without the benefit of any classes to address the issues, which is what diversion used to provide."

Counseling is what is really most needed for these offenders, says Silver. "Most of the ones I see need counseling, most of them have a substance-abuse problem. If those two areas are addressed, most of them seem to get their lives turned around, especially if they have a partner who is also committed to change."

Of course, Mullins is familiar with the litany of objections that are raised during spousal abuse cases. But his perspective is quite different. "If violence is being perpetuated, that has an effect on the family, especially if children are present," he counters. "If a boy sees his father being violent to his mother, he thinks that's OK, and that just perpetuates violence. Maybe people should learn, if they have economic problems, to deal with those in another fashion. The answer to problems is not violence."

The public defender agrees that deep-seated changes are needed, but still worries that the new rules are actually undermining families. "No one in this office is pro-domestic violence," replies Haffner, who sees a societal shift in attitudes at work. "Drunk driving 20 years ago was considered no big deal and society has changed people's attitudes about that, so that drunk driving is now morally not acceptable. If we can get violence against any of us to be morally not acceptable, that would be a great step forward.

"On the other hand," he says ruefully, "everyone is locked into a system where they are just assembly-line punishing these people, regardless of the effect on the family."

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From the May 30-June 5 1996 issue of the Sonoma Independent

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