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 when 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 a leaked email exchange 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, plus a pending full security video coming from the bank in just three days, 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 several 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 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 night at 5:50 p.m. That's when Deputy District Attorney Michael Barry sent an-email to three senior police officials, an email copied to a couple of officials in the D.A.'s Office, about changes in prosecuting "intimate partner violence cases."
In his email, Barry told the police he was issuing his new policy directive so he could make 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 in the D.A.'s office need a new policy directive from their boss so when they follow state law they can "feel more comfortable charging difficult cases."
Here's what the email said:
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.
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.
Reacting to the email, James Kelly III, chief inspector of the police detective bureau, urged all police commanders to distribute Barry's email and the new policy directive to all "investigative personnel."Michael BarryDeputy, Pretrial Division
Kelly's email stated:
In the new policy directive, Deputy District Attorney Barry wrote:As we have done in the past and will continue to do, you will instruct your investigators to do all they can related to a domestic violence investigations to see to it that the victim is given service. Your investigators will ensure that before an officer leaves the investigative unit, all has been properly done and/or required to document the facts of the case as related to the Domestic Violence laws. Such as, but not limited to; a proper interview of the officer especially where there is a victim who has obvious signs of injury and either refuses to cooperate or is in fear of his/her life if they cooperate. The officer's documented statement of his/her individual observations as well as excited utterances by the offender or victim will assist in the prosecution of the offender when faced with a reluctant victim.
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.
· 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 complainantis 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.
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.
If
If 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.
If