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Taking Domestic Violence Seriously: The Role of Judges, Lawyers & Service Providers....

Taking Domestic Violence Seriously: The Role of Judges, Lawyers & Service Providers.

Presented by: Sarah Buel, Clinical Professor and
Director, Halle Center for Family Justice
Arizona State U. Sandra Day O’Connor College of Law

sarah.buel@asu.edu

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    Role of judges attys  svce providers Role of judges attys svce providers Presentation Transcript

    • taking domestic violence seriously: the role of judges, lawyers & service providers
      Sarah Buel, Clinical Professor and
      Director, Halle Center for Family Justice
      Arizona State U. Sandra Day O’Connor College of Law
      sarah.buel@asu.edu
    • NecessitamossoÑar!
      We must dream!
    • 1st list general roles, then specific to dv
      Extraordinary power in each role – how can we motivate optimal performance?
    • i. The role of judges
      Gatekeepers for admission of evidence
      Implementation of laws
      Treat all parties with respect = “judicial demeanor”
      Comply with the Code of Judicial Conduct
      Hold offenders accountable under law
      _____________________
      _____________________
    • II. Role of prosecutors
      Ensure that justice is served
      Enhance & preserve public safety
      Comply with ABA Code of Ethics
      Prepare cases & argue to protect victims & witnesses
      Hold offenders accountable under law
      ___________________
      ___________________
      ___________________
    • III. Role of attorneys
      Ethical representation of client – including providing advice on laws & options
      Comply with ABA Code of Conduct
      When representing offender, ask “How can I ethically represent my client without endangering the victim?” see Lee Rosen article in ABA Lawyer’s Manual
      ________________________________
      ________________________________
    • iv. Role of law enforcement
      Serve & protect
      Promote public safety
      Comply with laws & dept. regulations
      Respond promptly to calls
      Collect evidence & take photos
      Interview witnesses, including children
      Write comprehensive incident reports
      _______________________
      _______________________
    • v. Role of probation/ parole officers
      Protect victims & witnesses (e.g. send letter with safety plan)
      Ensure offenders comply with terms of sentence
      _____________________
      _____________________
    • vi. Role of child protective services
      Ensure child safety from neglect &/or abuse
      Ensure family safety & stability
      Comply with laws & dept. regs
      ___________________
      ___________________
    • vii. The role of victim advocates
      Ethical advocacy of what victim wants – unless good reason not to (discuss drugs, batterer, revenge)
      SAFETY PLANNING  with every contact
      Economic Empowerment
      Self-Esteem: the power of “self-talk” e.g.
      *”I am the wonderful gift I seek.”
      *”I can do anything I put my mind to.”
      F. TEACH US!
    • Teach us how to
      Engage in ON-GOING SAFETY PLANNING, including self-care
      Collect EVIDENCE of batterer’s abuse, coercion, nonpayment child support, etc.
      Speak to the COURT & batterer
      Write to officials (see www.mincava.mn.edu)
      Give legislative/hearing testimony
      Be LEADERS in community groups
    • F. economic empowerment
      requires bold & sustained action to advance survivor’s opportunities and rights
      and to ensure that women can participate and be heard.
      Includes:
      What is your dream?
      Education
      Job training/procurement & retention
      ___________________
      ___________________
      ___________________
    • “What is your dream?” Projectif victim says “nurse” then:
      G.E.D. (Urban League & Comm. Colleges free classes, then $95 fee for exam
      Child Care
      Transportation
      Books, Supplies
      Study
      Mentor
      Follow-Up
      Ask for help when need it . . .
    • Economic Empowerment
      TANF/ welfare for Family of 3 per mo: Miss $170 - TN $ 185 - TX $213 - AZ. $247 - Ill. $396
      MI $489 – MN. $532 - CA. $679
      Plan: house + car + job training + real job + counseling + medical care + glasses (Lion’s Club) + dentist + food.
    • TICKLER FILE for periodic check-ins with victims
      Trained volunteers/ staff contact victims at 1, 3, 6, 12 & 18 mo. for follow-up 
      Ask:
      Is it safe 4 U to talk?
      Are you afraid?
      How can we help?
    • G. COURT WATCHES = system accountability
      Volunteers document victim treatment in the courts for civil, criminal & child support proceedings.
      For Materials and information contact
      BWJP 1-800-903-0111 or
      www.bwjp.org
    • H. Accountability to Survivors
    • Outreach & welcome to high-risk survivors including
      Criminal Record (Phoenix SEEDS Shelter)
      Differently Able
      Elderly
      Gang-Involved
      LGBT
      Mental Illness
      Mentally Impaired [Theresa Lewis + Brandy Holmes]
      Sex Worker
      Substance Abuse (Tulsa DVIS Shelter)
      Undocumented
    • Viii. For All system professionals
      • We must have the humility to keep asking, how we can do this better?
      • What can we learn from victims, offenders & our colleagues to STOP DOMESTIC VIOLENCE?
      • How can we stay accountable to survivors?
    • We Become Accountable When We:
      • Welcome survivors
      • LISTEN
      • Do comprehensive intake
      • Act Responsively to Needs/Concerns/Issues
      • Create HOLISTIC responses
      • Share power, e.g. Teach us how to collect evidence
    • Accountability to Survivors  must address:
    • Accountability in Criminal Law
      Violation of Protective Order = criminal offense
      Often additional crime committed, e.g.
      *Assault *Battery
      *Sexual Assault *Harassment
      *Murder *Destruction of Property
      *Stalking *Arson
      *Threats *Burglary
      *Terroristic Threats
      • How can you document these crimes?
    • Michigan Women’s Justice & Clemency Project
      works to free women prisoners who were convicted of murder
      but who acted in self-defense against abusers & did not receive due process or fair trials; &
      to conduct public education & advocacy for justice, human rights and humane alternatives to incarceration for women.
      http://www.umich.edu/~clemency/
    • SAFETY PLAN =
      ACTION PLAN FOR HOW TO STAY ALIVE
      AT HOME, WORK, SCHOOL, COURT
      CHANGE LOCKS
      AVOID WEAPONS
      PROTECTIVE ORDER TIPS
      PACK KEY DOCS & CLOTHES
      HOW TO COLLECT & PRESERVE EVIDENCE
      www.abanet.org/domviol for free copies
    • Download free:www.abanet.org/domviol= not copyrighted! Massively distribute in your community!
    • 6 Things to Say to a Victim NOT LEAVING OR RETURNING TO ABUSER:
      I am afraid for your safety.
      I am afraid for your children’s safety.
      It will only get worse.
      We are here for you when you are ready.
      You don’t deserve to be abused.
      How can I help?
    • IX. Astonishing Levels of Witness Tampering (WT) & Retaliation of Adult & Child Victims
      WT is most common intimate partner violence (IPV) & child abuse crime, yet least raised, charged, prosecuted & sentenced.
      What is system response?
    • Witness tampering sabotages evidence collection
    • A. Collect Evidence of ALL Separation Violence & Witness Tampering
      CUSTODY BLACKMAIL
      CHILD SUPPORT THREATS
      PROTRACTED LITIGATION
      STALKING, THREATS, ASSAULTS
      IMMIGRATION THREATS
    • B. Types of Witness Tampering
      Endearments
      Pleas for Forgiveness
      Bribery/ Gifts
      Threats re: custody, physical harm
      New Assaults
      Court Manipulation
      Vexatious Over-Litiation
      3rd Parties Collusion
    • C. Strategize response options with victim because unethical to ignore witness tampering.
      Document all witness tampering!
      Letter to defendant and his lawyer outlining why this conduct constitutes witness tampering, obstruction &/or retaliation + attach copy of law
      If victim agrees, report crime to police & DA
      If very dangerous, discuss client moving or going
      underground
    • X.Forfeiture
      In response to WITNESS TAMPERING, DOCTRINE of FORFEITURE by WRONGDOINGevolved as equitable remedy
      = if Defendant silences Victim (thru bribery, threats, violence),
      then he LOSES Right to OBJECT to Victim’s PRIOR STATEMENTS coming in at trial.
       
    • A. Forfeiture by Wrongdoing
      “One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” Davis
      Proof by a preponderance of evidence,
      Can use HEARSAY in forfeiture hearing.
    • B. Evidence needed to Prove Forfeiture
      Jail mail - tell victims to save all!
      Jail calls – booking calls, esp. near court settings
      Jail visitor logs - Did victim visit right after served with subpoena?
      Past contact with same victim
      Victim Statements to friends, doctors, therapists, co-workers, witnesses about fear.
      What else?
    • Satisfying Def’s 6th Am Right to Confrontation
      Victim must be available for cross:
      Available = in the witness chair
      If victim “cannot remember”
      = AVAILABLE
      If 6th Am right satisfied, then hearsay is admissible without analysis under Crawford, Davis & Giles
    • XI. Civil & Criminal IPV Cases Improved with EVIDENCE
      Giles v. Calf. (128 S.Ct. 2678 (2008)).
      if state wants to admit victim’s past statements, must prove defendant’s motive for murder was to silence victim.
      PROBLEM after Giles: Δs not only INCENTIVIZED to make Victims unavailable, but now REWARDED for doing so . . . because LOSS of Victim statements usually fatal to case.
    • B. Evidence needed to prove intent
      PRIOR ABUSE AS INTENT
      SCALIA: said @ end of Giles decision, evidence of a defendant’s PRIOR ABUSE may be admissible if it “EXPRESSED THE INTENT” to prevent a victim’s testimony, “where such an abusive relationship culminates in murder.”
    • Classic Abusive Relationship, cont’d.
      Justice Souter’s concurrence:
      intent to silence should be inferred with proof of “CLASSIC ABUSIVE RELATIONSHIP”
      + argues that there is no basis to suspect framers would have disagreed with the inference that forfeiture’s requisite intent could be met with evidence of a “classic abusive relationship”.
    • Classic Abusive Relationship, cont’d.
      J. Souter adds, “If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.” (emphasis added)
      . . . OF WHICH OBSESSIVE CONTROL IS A HALLMARK TRAIT.
    • Prior Abuse as Intent
      Giles said, “Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” (emphasis added)
      at 2693.
    • C. Proof of Classic Abusive Relationship with Defendant’s Prior Conduct:
      Evidence of prior acts with the complaining witness can directly bolster the complaining witness's testimony by providing significant corroboration;
      when used for such a purpose, this evidence is admissible and not considered propensity evidence.
      State v. Dietrich, 204 P.3d 748 (2009).
    • Prior Bad Acts, cont’d.
      Witness testimony regarding past incidents of domestic violence between defendant and victim was relevant to show absence of mistake regarding victim's injuries.
      State v. Romero, 139 N.M. 386, 133 P.3d 842 (2006), certiorari granted 139 N.M. 429, 134 P.3d 120, affirmed 141 N.M. 403, 156 P.3d 694, rehearing denied, certiorari dismissed 128 S.Ct. 976, 169 L.Ed.2d 799. Criminal Law 371(1)
    • D. Document De Facto Witness Tampering
      Accord and Satisfaction
      Over-Litigiousness
      Borderline Criminal Conduct
      Relentless, Retaliatory Harassment
      Attorney Collusion
      Non-violent terror (think Tony Soprano)
    • XII. We Share Power When:
      Advocates and Survivors are at the table
      Decision-making is joint
      We Allow Criticism and Respect, Anger and
      Frustration
      We Don’t Retaliate Against Survivors and
      Critics
      *Teach us how to collect & preserve evidence!
    • We Gather Crucial Information Through:
    • “MEN CAN” Billboard Campaign*free*not copyrighted
      www.instituteforsafefamilies.org
    • Thank you for being part of the solution!
      sarah.buel@asu.edu