F. BATTERER ACCOUNTABILITY Misdemeanor Criminal Cases

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1 F. BATTERER ACCOUNTABILITY Questions to be Answered 1. How are misdemeanor level cases filed? 2. How do the Courts process misdemeanor complaints? 3. What percentage of complaints filed are actually issued?? 4. How does the process account for victim safety? 5. How does the process foster offender accountability and stop the violence? 6. How does the civilian Court determine that the offender or victim is a service member? 7. How does the military (Command and Family Advocacy Program) learn of a misdemeanor case against a service member filed in civilian jurisdictions? 8. What role, if any, is played by Fort Campbell personnel in the adjudication of a case against a service member that occurred off Post? The Team focused on gathering information about misdemeanor cases only since this is the majority of cases appearing in the Court systems. When a felonious assault is committed by a service member, prosecution is deferred to the U.S. District Court in Western Kentucky or Middle Tennessee or for a court-martial proceeding. Due to the complexity of reviewing three different Court systems in two states, with various state and Federal laws involved, it became apparent that assigning separate assessment teams to each jurisdiction would be the most effective approach. These multidisciplinary teams conducted observations and interviews and subsequently analyzed the information gathered; resulting in findings and recommendations which we believe would improve victim safety and well being and increase offender accountability. The creation of separate assessment teams resulted in the Local Coordinators accepting greater responsibility in preparing the preliminary information concerning the processing of This project was supported by Grant No WT-AX-K055 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the U.S. Department of Justice, Office on Violence Against Women.

2 criminal cases in Christian and Montgomery counties. It was further agreed that the Army Victim Advocates would describe what they learned while working with the District Court on Fort Campbell and consider other ways to improve that process. The first recommendation of this assessment effort is the establishment of a Memorandum of Agreement (MOA) between the Family Advocacy Program, U.S. District Courts, Office of the Staff Judge Advocate (OSJA), and Fort Campbell Police Departments to ensure victim rights as outlined in U.S. Department of Defense (DoD) policy and offender accountability when adjudicated in the Magistrate s Court. Christian County, Kentucky In the coming year, Christian County will see significant changes in the leadership of the Sheriff s Department, the Commonwealth prosecutors, the jailer, and the Family Court Judge. It was decided that mapping and assessment of misdemeanor criminal cases processing would be postponed until new leaders assume their positions in the criminal justice system in early Local Team members are aware that some issues identified for particular attention in the mapping process may be resolved by working with these newlyelected officials. The Team reviewed misdemeanor criminal cases involving service member offenders or victims. This report [see Appendix V-1] shows adjudicated cases in Christian County, Fort Campbell and Montgomery County that occurred during the mapping period. It reveals a sense of the typical outcomes of cases at present and supplies a reference point when the formal mapping of cases in Christian County is conducted. F. BATTERER ACCOUNTABILITY 117

3 Fort Campbell, Kentucky Background The Fort Campbell Army Installation is unique in its handling of domestic abuse cases. Like other military installations with federal land that is not concurrently held in jurisdiction with state authorities, all civilians who are charged with an offense of any kind are processed through the U.S. District Court. However the U.S. District Court is allowed to process military service members in certain circumstances. According to CAM Supplement 1 to AR 27-10, September 25, 2002, signed by Major General David H. Petraeus, the following was added to paragraph 4-2: Likewise, the authority of commanders to impose punishment under Article 15 UCMJ, is withdrawn for the following offenses which fall within the jurisdiction of the U.S. Magistrate s Court: traffic violations, driving while intoxicated, shoplifting, and on-post domestic disturbances not involving physical injury. The primary purpose of this prohibition is to ensure that, if convicted, a permanent criminal record is established for soldiers who commit these offenses. In special circumstances, commanders may coordinate with their unit trial council (OSJA) to seek an exception to policy from the GCMCA to handle such offenses under Article 15, UCMJ. Currently the OSJA interprets on Post domestic disturbances not involving physical injury to be misdemeanor cases. However, cases involving physical injury were and are being heard in the Magistrate s Court and there is some confusion for law enforcement and Advocates in understanding which cases go to the Magistrate s Court and which do not. Currently, regardless of the level of injury documented in the law enforcement report, most domestic violence cases are heard in the Magistrate s Court. Magistrate Judge W. David King serves at the pleasure of the Federal District Judges in both the Western District of Kentucky and Middle District of Tennessee. The Court can apply the law depending upon which part of the installation the incident occurred, whether in Tennessee or Kentucky. In the case of domestic abuse, the citations are usually written to reflect the particular state s statutes and are then assimilated to a Federal statute of 18 USC 113 (a)(4) for Assault by Striking Beating and Wounding and 18 USC 113 (a)(5) for Simple Assault. In the early days of the mapping process, Judge King was informally F. BATTERER ACCOUNTABILITY 118

4 interviewed by retired Judge Peter Macdonald of Hopkinsville, KY, who served on the U.S. Department of Defense Task Force on Domestic Violence. During their conversation, Judge King indicated his willingness to cooperate with the Project; however, he did not believe it was appropriate that he participate directly. When the mapping process began, there was not a relationship between the Special Assistant U.S. Attorneys (SAUSA) and the mapping Team members, some of whom were Victim Advocates. The OSJA, which includes the SAUSA, were reluctant to participate in the process. Over time the SAUSA and the Victim Advocacy Program began to work together in a mutually-beneficial relationship. This relationship was based on ensuring that the rights of victims were observed in the Magistrate s Court proceedings. Initially the focus of the relationship was on reducing the number of cases dismissed by the Magistrate because the victim was not present for the proceeding. It was discovered that victims were not receiving notification of the hearings and when provided notification and an opportunity to appear, most wished to do so. Secondly, the SAUSA and the Victim Advocates worked together to reduce the number of times that cases were settled at arraignment and urging the Magistrate to permit victim notification and opportunity for follow-up investigation before the matter is considered for disposition. Finally, there have been frequent discussions regarding the implication of Lautenberg and the entering of a conviction in the Magistrate s Court when the civilian communities are more likely to pursue a deferred prosecution, taking a guilty plea but holding it for six months or a year, subject to compliance with battering intervention programs and other requirements, including no subsequent offense. This matter is still under discussion and is part of the MOA being developed to institutionalize these remarkable changes that have been put in place during the mapping phase with the advent of the Victim Advocate Program and its outreach to the SAUSA. During the initial process of mapping the case disposition practices in Magistrate s Court, the Team had several concerns. The Team debated whether or not the recommendation should be made to have all domestic abuse cases involving service members be handled by their Unit Commanders, consistent with the practice on other Army installations. However, service members are also victims of domestic abuse, and the cases in which a civilian spouse is the offender would still need to be processed in Magistrate s Court. It was important to F. BATTERER ACCOUNTABILITY 119

5 the Team members to consider how the safety and victim rights issues faced by service member victims could be addressed. Another concern raised by the proposal to have Commanders handle the service member domestic violence offenses is that Lautenberg would not apply in any case resulting in the Commander s use of Article 15, a non-judicial punishment. The DoD issued a policy for the implementation of the domestic violence misdemeanor amendment to the Gun Control Act for DoD military personnel [Appendix V-2], and for civilian personnel [Appendix V-3]. After identifying these issues with the current practices, the Team suspended discussions and debates on outcome recommendations. They decided it was more appropriate to let the process of observations, interviews and relationship-building lead them to the findings and subsequent recommendations. This jurisdiction, like many across the United States, is struggling with the impact of Lautenberg, and whether or not it is appropriate or legal to infuse flexibility in the entering of these convictions. National policymakers, trainers, and consultants have seen retroactive expungements, diversion agreements, amended charges both pre and post conviction and so on as jurisdictions try to balance danger assessment, victim safety overall, victim wishes in a particular case, and fairness and due process to defendants. These understandable efforts, here and elsewhere, are then sometimes unfortunately at odds with the equally important goals of tracking domestic violence cases (hard to due when the label of a case is changed by the amendment of a charge). Development of the new MOA will provide a process by which this matter can be further discussed and appropriate actions taken. Observations In August 2005, Christina Lopez and Katina Dimitro, Victim Advocates with the ASC/Family Advocacy Victim Advocate Program on Fort Campbell, KY, were assigned to work with victims at the U.S. District Court of the Western District of Kentucky and Middle Tennessee at Fort Campbell, KY. The U.S. District Court is in session at Fort Campbell the first Wednesday, Thursday and Friday of each month with Magistrate Judge King, presiding. The first Wednesday of each month is reserved for trials. The first Thursday of each month is for Kentucky arraignments and Friday is for Tennessee arraignments. F. BATTERER ACCOUNTABILITY 120

6 Since the U.S. District Court convenes only once per month, there can be a 2-3 month delay in arraigning offenders. If not represented by counsel at the arraignment, the defendant can talk with the U.S. Attorney to work out a plea. Victims are not usually present at the arraignment, unless they are there to support the defendant or are also being arraigned. Prior to the arraignment or plea agreement, Victim Advocates try to contact the U.S. Attorney to relay the victim s desired outcome. Only on Post misdemeanor cases are heard in the U.S. District Court. Felony or felony-type offenses are assumed by the OSJA for resolution in a court-martial proceeding. The Uniform Military Code of Justice (UCMJ) does not distinguish between misdemeanors and felonies. When the Chain of Command is attempting to make a charging decision, they often look to State and/or Federal laws to determine which offenses to charge. Judge Advocate General officers try to coordinate with local prosecutors to assist and/or lend support to their prosecution of the cases in the local community. Some felony cases may be heard in the U.S. District Court in either Paducah, KY, or Nashville, TN. The number of misdemeanor cases arraigned each month fluctuates depending on whether or not the division is deployed. From September 2005 to April 2006, there was an average of 20 arraignments per month in Kentucky, with five in Tennessee. The majority of Fort Campbell is geographically located in Kentucky and so are the majority of the residential areas. At this time, the Team was not able to estimate the number of cases delayed due to deployments or redeployments. If the service member offender or service member victim is deployed, then the proceeding is delayed by the Court. The case will be reset for six months for the service member to redeploy. Once a service member has returned from a deployment they have five days to report to the Court. Once they report to the Court a new Court date will be given scheduled. The Family Advocacy Victim Advocate Program initiated a relationship with the SAUSA during This collaboration has resulted in practices which allow for more victim involvement in the case process. Currently, a Victim Advocate contacts all of the victims identified prior to the arraignment dates. The U.S. Attorney determines if they too will F. BATTERER ACCOUNTABILITY 121

7 contact a victim for input. Victims are notified of an upcoming proceeding by the Victim Advocate in accordance with victim rights [see Appendix V-4]. The following table demonstrates the significant reduction in case dismissal rates between August 2005 and August 2006, when the Victim Advocates began working with the SAUSA in Magistrate s Court. Cases dismissed without prejudice for six months are indicated as DWOP 6 and for 12 months as DWOP 12. Dismissal Rates in US District Court Number of Cases in US District Court August 2005 August 2006 Dismissed DWOP 6 DWOP 12 Frequently, the Military Police (MP) forward the incident report in the form of a blotter or a summary of all actions taken that day to the Family Advocacy Victim Advocate Program (FAVAP). A case is then assigned to a Victim Advocate who contacts the victim to offer services, specifically court advocacy as it pertains to the Magistrate s Court. If the victim accepts services, the Victim Advocate outlines the process of the Magistrate s Court and discusses the victim s desired disposition for the case. The victim and the U.S. Attorney will discuss the best outcomes for the victim and the U.S. government. Under current procedure, cases are not usually settled at arraignment, unless the victim has been notified of the Court date and had input on the disposition. Cases can be dismissed, dismissed without prejudice for a period of time, result in a plea, or a trial. Initially the Team was concerned about how domestic abuse cases were handled in the Magistrate s Court. In discussing past experiences and reviewing records of old cases a critical concern surfaced about the high dismissal rate of both service member and civilian offender cases. This reinforced the belief that current practice was ineffectual in holding F. BATTERER ACCOUNTABILITY 122

8 offenders accountable and ensuring victim rights. Research of past case dispositions revealed that case dismissals occurred for many reasons: 1) lack of evidence, 2) poorly written citations where the police officer is no longer in the area, and 3) lack of follow-up investigation. In addition, victims were not receiving notification of Court proceedings, were not aware that they had the right to confer with the government legal counsel, or that they had the right to obtain information about the status of their case. This analysis of past cases helped the Victim Advocates focus on strategies that could, in collaboration with the U.S. Attorney, better account for victim safety and empower the victim s voice regarding case disposition. Sometimes when a case is dismissed or dismissed without prejudice for a period of time, it is because the prosecution does not have a strong case (e.g., no willing witnesses, lack of physical evidence, or the inability to meet the burden of proof). When a case is dismissed without prejudice for a period of time, the charges can be reinstated and a trial scheduled if the offender violates any law and it comes to the attention of the Court. If the offender agrees to a plea bargain, then there is a guilty plea on the offender s record that cannot be expunged, except by order of the U.S. President. If a guilty plea is entered, then a victim can be sure of the consequences given to the offender; however, if the case goes to trial, then the victim will often have to testify and the outcome is uncertain. If the offender and victim remain together in the home prior to the trial, the offender will often use tactics of coercive control to prevent the victim from testifying. Linkages between the Magistrate s Court, FAVAP and Social Work Service Family Advocacy Program (SWS/FAP) were weak. FAVAP and the Magistrate s Court now have a good connection and so does FAVAP and SWS. There was however, an obvious disconnect between the Magistrate s Court and SWS/FAP. The Team s concern prompted the OSJA, the SAUSA, FAVAP, and SWS to devise a plan to join forces to ensure victim rights and increase offender accountability. An MOA is currently being drafted by the FAVAP to address these concerns and to correct the deficits. F. BATTERER ACCOUNTABILITY 123

9 Findings 1. Citations issued by MP and the Fort Campbell Police permit officers to allow domestic violence offenders to pay a fine of $175 in lieu of a Court appearance. If the charge is assault or assault by striking, beating, or wounding, then the offender is not eligible to pay a fine and must appear in Court. 2. During arraignment, cases are sometimes settled without the victim being present or having input into the outcome. Victims have complained about this practice in previous years. This happens very rarely now that Advocates are working within the Magistrate s Court to ensure victim notification of Court dates and adequate communication between victims and the U.S. Attorneys. 3. Victim Advocates have not observed any differences in penalties between Tennessee and Kentucky. The punishments for domestic violence offenses seem to be consistent whether the defendant is civilian or military, male or female. Because Kentucky and Tennessee laws vary on how to charge acts of domestic violence, the Magistrate s Court follows Federal law to ensure all offenders receive the same treatment. There are concerns about cases of dual arrest; there may still be cases of victims who are brought to Court who acted in self-defense. Victims of domestic violence often will plead guilty even if they used violence in self-defense. 4. It can take 2-3 months to arraign a defendant. This can be advantageous to the victim and the U.S. Attorney s case by allowing the victim to receive available services and to gather necessary evidence to present the case. This time could allow the victim to access referrals and resources to make an informed decision; however the delay, if there must be one, should perhaps occur after arraignment and before the case is set for a hearing when sufficient evidence is available to present the case. 5. In conducting an analysis of cases involving service members handled in the Magistrate s Court, Christian County, and Montgomery County there have been significant differences in the dispositions entered for cases when the Victim Advocates worked closely with the JAG officers (serving as U.S. Attorneys). This change is dramatic and heartening and demonstrates the impact Victim Advocates can have when encouraging a more collaborative and effective response. There has been a significant reduction in the number of dismissals; an increase in the participation of victims in the process, including F. BATTERER ACCOUNTABILITY 124

10 testifying; a reduction in the number of cases adjudicated at arraignment before any follow-up investigation occurs; and an increase in convictions. Recommendations 1. The Military/Civilian Coordinating Council will work with the Provost Marshal to ensure that all domestic violence citations issued by the MPs and the Fort Campbell Police will have a Mandatory Court Appearance (MCA) instead of a fine. All officers imposing the fine will be reminded by the Provost Marshal of the importance of the MCA in domestic violence cases. In addition, we support the recommendation of the Initial Response Team to create a specialized citation for domestic violence cases. 2. The U.S. Attorneys and the Victim Advocates working together has dramatically improved the handling of domestic violence cases. An MOA describing the new working relationship is being developed to ensure that as personnel changes occur, the improvements stay in place. Advocates inform the victims with whom they work of the processes in all Courts in which the victim might be involved. Advocates also inform the victims of arraignment dates as soon as possible. Since the Magistrate s Court does not notify the victim of an arraignment date, it is critical that the Victim Advocates contact them so they have an opportunity to provide victim input on the plea process. The Victim Advocates will then contact the U.S. Attorney to discuss the plea arraignment. This will ensure victim rights. All victims are told in advance that the arraignment date may be in 2-3 months and the reason for the delay. As the U.S. Attorney and the Victim Advocates continue working together, it may be possible to reduce this delay in cases where more adequate evidence collection has occurred. The victim is informed of the Court process and the possible outcomes by both the Victim Advocate and the U.S. Attorney. The Victim Advocate encourages victims to decide what they would like to see happen in their cases and works with the victims and the U.S. Attorney to include that input in the processing of the case. F. BATTERER ACCOUNTABILITY 125

11 3. The debate about whether to recommend that all domestic violence cases be handled by the Unit Commanders or continue to be seen in Magistrate s Court raised the following questions: a. What do Commanders see as their role in the intervention when cases are heard in the Magistrate s Court? b. If Command takes over the adjudication of service members, what level of Command would handle domestic violence cases? A significant improvement in training of Command would be needed to ensure an understanding of domestic violence, and input needed from victims to ensure victim safety and the rights of the victim. How would domestic violence cases be resolved, if the offender is a high-ranking Commander? c. There are several Units stationed at Fort Campbell but their direct Command is stationed elsewhere (e.g., Fort Bragg). How would those cases be handled if Command was in charge of addressing issues of domestic violence? d. How does the consequence of the Lautenberg amendment influence charging decisions in the Magistrate s Court? e. Are resources and opportunities available to ensure that the Judge and SAUSA staff working in the Court have specialized domestic violence training? Issues that support continuing to use the Magistrate s Court as it currently operates: a. Command is more concerned with mission-essential issues, with deployment and redeployment at the forefront. Different Commanders may impose very different punishments for offenses of the same nature and severity. Commanders are usually not attorneys and may not be as familiar with Federal and State statutes as the Judge and the U.S. Attorneys. b. A strong effort is being made by the U.S. Attorney to determine the predominant aggressor and to present that information to the Judge. Currently, the lack of follow-up investigation by law enforcement in cases alleging dual violence does not provide Commanders with enough information to make predominant aggressor determinations. F. BATTERER ACCOUNTABILITY 126

12 As a result of information gathered in the mapping process, the decision was made to recommend the following: a. Continue processing domestic violence cases in the Magistrate s Court, and develop an MOA with the Victim Advocates and the U.S. Attorneys to codify the improvements that have been made and create a framework for ensuring practices which account for victim safety and increased ability to hold offenders accountable. b. Seek a closer working relationship with the Provost Marshal and the Military Police to strengthen the collection of evidence and provide a feedback loop on the disposition of cases so officers can see the results of their increased efforts. c. Solicit the opinion of Commanders about the adjudication of criminal matters, unique to Fort Campbell, to learn more about their understanding of it in relation to other installations and prior experiences with criminal matters. d. Review Command expectations of the Magistrate s Court and of themselves in cooperating with the efforts to reduce domestic violence and solicit input for the revision of the Command Policy Letter #3. e. Solicit the opinion of the Magistrate concerning his continued involvement in adjudicating domestic violence cases when service members are offenders. f. Provide the Magistrate with the opportunity and resources to attend the Enhancing Judicial Skills in Domestic Violence Cases conference sponsored by the National Council of Juvenile and Family Court Judges. g. Continue to monitor the disposition of domestic violence cases on and off Post to ensure that practices account for victim safety, offender accountability and appropriate communication linkages exist within and with Fort Campbell. F. BATTERER ACCOUNTABILITY 127

13 Montgomery County, Tennessee The Case Disposition and Monitoring Team interviewed Charles Johnson, the Assistant District Attorney, who prosecutes domestic violence cases in Montgomery County. He provided the Team with a document outlining the process for handling misdemeanor domestic violence cases [see Appendix V-5]. That information was included in this section to the extent it was relevant to the processing of misdemeanor cases to the point of disposition. Findings According to Johnson, all misdemeanor cases are initially processed in the General Sessions Court with the exception of misdemeanor presentments to the grand jury. Cases resulting from a grand jury indictment (while they may result in a preliminary hearing) are initially processed in the Circuit Court. Because Tennessee law designates different timetables for cases involving defendants who are incarcerated from those cases involving defendants who are not incarcerated, there are two separate ways the Courts handle misdemeanor cases. 1. Jail Cases Each weekday morning, a General Sessions Court Judge, via video hookup with the Montgomery County Jail, arraigns newly-arrested defendants. They are advised of the charges against them, the range of punishment, the amount of their bond, and given two additional Court dates (docket call date and a trial date). If the Judge determines that the defendant is indigent, an attorney is appointed (often the Office of the District Public Defender) to represent the defendant. If the defendant makes bond prior to the trial date, there is a rebuttable presumption that the defendant is not indigent and, often, the appointed attorney is removed from the case. Thus the defendant must retain private counsel if legal representation is desired. When the defendant does not make bond, Tennessee law requires that the General Sessions Court have a hearing (preliminary or trial on the merits) within 10 days of the arraignment of the defendant. This limit may be extended for good cause. All military defendants have their General Sessions warrants stamped with an M and the General Sessions dockets designate whether a defendant is military. Military F. BATTERER ACCOUNTABILITY 128

14 defendants are not accorded privileges or rights different from civilian inmates. On a daily basis, the Montgomery County Sheriff s Office faxes all arrest warrants involving military arrestees to Fort Campbell. 2. Non-Jail Cases Each weekday at 10:30 am, defendants are arraigned for arrests from the previous day. Like jail-case defendants, they are allowed to have appointed counsel if they can establish indigence. Assuming that the defendant is not indigent, they are required to return to Court and advise the Judge who they retained as legal counsel (if they choose to be represented). Their next Court appearance is the docket call. If indigence is established, an attorney is appointed to represent the defendant at the docket call. By Tennessee law, all non-jail defendants must have a trial (or disposition) date scheduled within 30 days of their arraignment. By establishing good cause, this time limit may be extended. When asked what aspects of the process strengthen victim safety, Johnson identified the factors listed below with respect to the process prior to disposition. a. Imposition of a 12-hour hold of the alleged offender prior to release on cases involving domestic assault. b. Availability of shelters and safe houses for victims of crime. c. Counseling services available to victims at Fort Campbell. d. Vigorous enforcement of conditions of release violations. e. Not placing the decision of whether to prosecute a case in the hands of the victim. f. Having a no-drop policy enforced by the prosecutor in domestic violence cases decreases the likelihood that the defendant can intimidate or coerce the victim to dismiss a case that should be prosecuted. F. BATTERER ACCOUNTABILITY 129

15 Recommendations The Team is not making any recommendations at this time because a formal mapping of the actual processing of misdemeanor cases was not conducted. While a formal interview with Johnson and observations of some Court proceedings occurred, it was not adequate to develop thorough recommendations. F. BATTERER ACCOUNTABILITY 130

16 APPENDIX V-1 Adjudicated Magistrate s Court Fort Campbell, Montgomery County Clarksville, and Christian County/Oak Grove V-2 DoD Policy for Implementation of Domestic Violence Misdemeanor Amendment to the Gun Control Act for DoD Military Personnel, U.S. Department of Defense, November 27, 2002 V-3 DoD Policy for Implementation of Domestic Violence Misdemeanor Amendment to the Gun Control Act for DoD Civilian Personnel, U.S. Department of Defense, November 27, 2002 V-4 Domestic Violence/Sexual Assault Victim Rights, Fort Campbell ACS/Family Advocacy Program V-5 How Are Misdemeanor Cases Filed? Montgomery County, TN F. BATTERER ACCOUNTABILITY 131