Marin County DA's Office Domestic Violence Program

By Paula Kamena

Although domestic violence cases are among the hardest to prove in court for a variety of reasons, the DA's office is committed to vigorously prosecuting perpetrator

Marin County DA's Office Domestic Violence Program

Research has shown that the violent episodes become more severe and more frequent. The end of the cycle of violence, without intervention, is frequently murder-suicide. Research has also shown that with intervention, the cycle can be stopped, and families can successfully live in a non-violent and respectful relationship. Violence is learned behavior, and batterers can learn skills to manage anger and control violence.

The cycle of violence has the capability of destroying lives and prosecutions that are intended to save those lives. More often than not, a victim of violence in the home will call the police when she is at great risk. Many cases come to the DA's Office with complaints that the phone was pulled out of the wall when the victim was calling for help, and many victims complain of being choked with the phone cord. Once the police arrive and the imminent danger is over, the victim frequently feels safer and begins to minimize what has occurred. Sometimes the minimization or recantation does not occur until the batterer is actually in custody or appearing in court, or farther on down the road.

These cases are dramatically different that cases in which there is no relationship between the parties. Victims of burglary or robbery who are strangers to the suspects, have little reason to refuse to cooperate with prosecutors.

A victim of domestic violence who is entrenched in a relationship with her batterer, may have many reasons for recanting or not wanting prosecution: once the violent episode is over, she feels safer. She may feel guilty that the batterer is in custody because of her low self-esteem ("If only I had cooked a better dinner, it would not have happened . . . He was tired and needed a good meal after working all day.") She loves the batterer and does not want to see him punished. She fears the batterer and what he will do should the system let her down. She worries about lack of income and support if he is not able to work. She worries how she will rear her children without a father. She believes him when he says he will never hurt her again.

Police officers on the front lines experience extreme frustration in domestic violence investigations. Absent a visible injury or an independent witness, if a victim is not cooperative, they cannot proceed.

The Marin County DA's Office policy on Domestic Violence requires that these cases be reviewed, if possible within 24 hours of receipt, and that the suspect be charged if the report reflects sufficient evidence to do so. Our victim-witness advocates are given copies of the police reports and are to contact with victim within a day. Every effort is made to follow this policy. Knowing that victims often recant, the policy of the Marin DA's Office is to proceed in these cases, even without the victims cooperation, if the case can be proven without her. Many cases are issued with the belief that the victim is cooperative. Once they become uncooperative, without that independent evidence, the cases must be dismissed.

In determining how to proceed with these cases, consideration is given to the nature of the offense, the amount of violence, the history of the defendant, the cooperation of the victim, and the ability to prove the case without her. In some cases, in order to stop the violence, prison is necessary because the violence will only stop if the batterer is physically removed from the victim. In some cases, the violence is so egregious that the only just punishment is prison.

In other cases, in which the violence is not as severe, intervention absent state prison may be a just result. All defendants who plead or are found guilty of domestic violence and who are given probation with a local jail sentence are required to participate in a treatment program geared to stop the violence. There are many other conditions placed upon them to achieve that goal. With any recurrence, more jail or prison time can be imposed, depending on the circumstances of the case.

Our Domestic Violence Policy was established in 1985. I wrote it and was assigned to prosecute domestic violence cases. The policy was updated and was drafted as a county wide law enforcement protocol in 1994. Again, I wrote this county-wide policy. In 1994, the Marin DA's Office obtained a grant to try to battle the rising tide of domestic violence. Two attorneys were assigned to the newly formed Domestic Violence Unit, in an effort to encourage victims to cooperate with prosecution, the goal of which is to stop the violence. I have doubled the prosecutors in the Domestic Violence Unit.

Recent criticism of the Marin DA's Office Domestic Violence Unit is totally unwarranted.

This unit has done a tremendous job in prosecuting these very difficult cases. The Domestic Violence Unit conducts regular training at police stations to update police officers on the law and encourage them to follow through despite their frustration that the victim always withdraws. The unit gives trainings at Marin Services For Women, works with Legal Aid and Family Law Center to coordinate services for victims - many of these hours on their own time, after work hours.

Our Domestic Violence Unit has cooperated with the Marin County Sheriff and MAWS in training staff at the jail regarding Domestic Violence. There is now a program at the jail which offers immediate counseling services by MAWS to a batterer booked into jail. There are domestic violence anger management classes in the jail.

Marin County, through MAWS, Legal Aid and the Family Law Center was the recipient of a $300,000 federal grant last year. This has been designated a demonstration project for the nation. The goal of this project is to offer civil legal services to victims to determine if tending to some of their other needs (housing, finance, etc.) will tend to make them more cooperative with prosecution. Application is now being made to extend the program for another year.

Statistically, what occurs in the domestic violence unit is on a parity with the other cases in the office. The Marin County DA's Office receives over 10,000 police reports a year to review for requested charges. Because of the claims that this unit was in a "deplorable state," we conducted a comparison between Marin, Sonoma and Santa Cruz Counties, who made their statistics available to us. The results show that all three counties have a similar result in their domestic violence cases. It is especially interesting to note that this is so, even though Sonoma County has recently established a domestic violence court, which is a new and progressive method to prompt early dispositions and treatment of the families of violence. Here are the results of the comparison:

1997 Domestic Violence Cases Marin Sonoma

Cases Dispo'ed with guilty pleas 66.3& 66.4% and sentenced:

1996/97 Domestic Violence Cases Marin Santa Cruz

Cases to trial: 2.6% 1.0%

So, it can be seen that Marin County is on a par with other counties in the area.

In Marin, reasons for not filing cases upon initial review were as follows:

Insufficient evidence 55.9% Handled by citation hearing or probation revocation 25.1% Unable to locate victim/uncooperative victim 6.2% Mutual Combat 5.1% Miscellaneous 7.7%

In Marin, reasons for dismissing cases after filing were as follows:

Insufficient evidence/unable to prove 41.4% In the "interest of justice" 25.9% Unable to locate victim/uncooperative victim 17.2% Miscellaneous 15.5%

Since instituting the Domestic Violence Unit in 1994, the number of cases found guilty and sentenced has increased 81%!

Two cases were offered as representative of the "deplorable state" of the Marin County DA's Office Domestic Violence Unit. The first discussed, Mr. W. The impression was left that Mr. W. was released from custody and was free to harm his family again. Not true.

Mr. W's case has not been disposed of as yet, and normally such matter would not be discussed publicly. But, in view of the accusations, this office has no choice but to respond. Mr. W was arrested in Sonoma County for domestic violence in October of 1997. He was released while his charges were pending. The family moved to Marin. In December, Mr. W was arrested in Marin, again for family violence. The case was set for trial in January. Justice was clearly not delayed. Mr. W intended to plead guilty, but on the day of trial his attorney declared a conflict and the case was put over. During this time the assigned attorney interviewed the victim who told, for the first time, of the spousal rapes by her husband. She was instructed to have an investigator interview the victim about these charges. This was done and the interview was taped. Two senior attorneys reviewed the tape and believed that there was insufficient evidence to proceed. The victim did not want Mr. W to go to prison. They have a business and she felt that as long as he stayed away from her and her children she would be safe and she could still receive the financial support she needed to maintain her business.

The Marin County DA worked together with the Sonoma County DA to resolve the case. Knowing that the defendant would receive a substantial jail sentence in Sonoma County, and being assured by INS that two convictions of spousal battery would "virtually assure" that the defendant would be deported to Taiwan, the Marin DA's office agreed not to give additional jail time to Mr. W. He was then released, IN CUSTODY, to the Sonoma County authorities. He was sentenced to a year in the county jail, after which he will be deported. He intends to live with his family. He will be able to work and continue to provide financial assistance from a distance, to his family. Should he illegally return, he will face INS consequences and additional penalties in Marin because he will be on probation for three years.

The other case referred to was that of Mr. I. W. In that case, because a "strike" was alleged, if the defendant was convicted, he would have a mandatory prison sentence. Absent a conviction, the defendant would walk away. The facts of this case were that I.W. and his former girlfriend with whom he shares a child, were at his home. The got into a dispute in the middle of the night over a cigarette. The victim claimed that she was assaulted, the defendant claimed that he did not assault her. She had minimal bruising. In this case, the victim had personal issues that caused her credibility to be questioned. In fact, because of these issues, the father, not the mother, has custody of their child. There were serious questions as to whether the crime could have occurred as claimed by the victim and the only additional evidence corroborated the defendant and not the victim. The victim did not want to testify. The defendant offered to plead to a misdemeanor, which would expose him to a year in the county jail and place him on probation for three years with a mandatory treatment program and other similar conditions. Given the specific facts of the case and the state of the evidence, the wiser choice was to accept the plea and assure a measure of control over the defendant, rather than to face a sure acquittal by a jury.

For every case such as Mr. W and Mr. I.W., there are numerous cases that establish the dedication of the Marin County Domestic Violence Unit.

Domestic Violence cases were tried to juries in 1997. In one case the victim was uncooperative. One victim claimed that she was anorexic, and when in that condition she beat herself, even though there was a videotape of her bruises and a statement from a neighbor of the violent episode of violence by her partner. There was a conviction in this case. In the last two years, six men have been sentenced to state prison as a result of domestic violence cases tried to juries when the victim was not cooperative. These cases were pursued because of the history of violence, the severity of the injuri