DA Rushlau Weak on Domestic Violence

Domestic violence: Does punishment fit the crime?

Victim advocates at odds with district attorney

By Stephen Betts | Mar 25, 2010

ROCKLAND — Advocates for domestic violence victims say they are concerned about the adequacy of local efforts to prosecute the accused offenders.

The criticism focuses on the use of a process called deferred disposition in which the charges are lowered to lesser offenses if the accused stays out of trouble for a period of time and undergoes counseling. The advocates also are critical of the

lack of use of a domestic violence court that was created in Knox County three years ago in an effort to reduce the number of repeat offenders.

District Attorney Geoffrey Rushlau acknowledged the domestic violence court could be used more often but defended his office's approach to domestic violence cases.

Kathleen Morgan, the executive director of New Hope for Women, said her concerns about the adequacy of prosecution became acute last year when she attended a local forum on domestic violence and a few examples of how domestic violence cases were handled came to her attention.

In one case from January 2009, a 36-year-old woman in Rockland was grabbed from the shower by her male companion. The 34-year-old man beat her in the head and stomach. The man then put his hands around her neck and started to strangle her to the point where she could not breathe, all the time telling her he was going to kill her, according to the police report filed in court.

The woman managed to get away from the man and she fled naked from the house in the middle of what was the coldest night of the year. A neighbor was walking a dog and spotted the woman being chased by the man. When the man saw the neighbor, he fled the scene, and the neighbor brought the woman inside and called police.

The woman was taken to the hospital where she was found to have bruises on her head, face, neck, chest, back, buttocks, arms, knees, legs and ankles. The medical staff also found broken vessels around her eyes that were indicative of prolonged strangulation.

Rushlau said in this case, the victim became uncooperative and the police and District Attorney's Office were unable to contact her as a court date neared. The District Attorney's Office reached a plea agreement with the offender in which he pleaded guilty.

In the agreement, the felony aggravated assault will be dismissed and a misdemeanor assault conviction will result if the offender adheres to a series of conditions imposed on him, including anger management therapy. The offender is scheduled to return to court in June 2011. If he adheres to the terms by June 2011, the man will be sentenced to 364 days in jail. If not, the judge will be free to sentence him to whatever is deemed appropriate on the original aggravated assault charge.

The offender has a previous conviction for assault on an officer.

Morgan said she disagrees strongly with the district attorney's approach in this case. "I was outraged when I learned the details of the case," Morgan said.

She said there is a lot of training available to teach law enforcement how to prosecute cases even when the victim is uncooperative. In this case, she said, there was considerable physical evidence gathered by the sheriff's office specifically linked to the accused as well as statements from the neighbor and from witnesses who had seen the man's behavior toward the woman earlier in the evening.

Morgan said if the neighbor had not been out walking the dog, the case could have become a homicide.

She also criticized the handling of a case from a few years ago when a man was accused of threatening his estranged wife with a gun but the charge was reduced through a deferred disposition to disorderly conduct. In this case, the man held a position of authority in the community.

And the head of New Hope said a third case shows that even when a person is going through deferred disposition and violates the terms, the offender is not held accountable.

In that case, a Warren man, who was 18 years old at the time, was charged with assaulting a woman in 2007 in Warren. In July 2009, he pleaded guilty to one count of domestic violence assault as part of a deferred disposition. The agreement was that if he did not re-offend for the next six months, the charge would be reduced.

A little more than two months after his court hearing to accept the deferred disposition, the man was arrested for a new domestic violence assault charge. In the new case, a woman - who was not the same person as the first victim - claimed that she had gone to her boyfriend's house to take him to work and he was angry about being woken up. As the two were in the car and the woman was driving, the man became angrier and grabbed her by the hair and slammed her head into the door, according to the police report filed in court. She stopped the vehicle and ran from the scene.

That case was later dropped when the witness became unavailable, according to the court records.

In December, the District Attorney's Office agreed to a new deferred disposition for that defendant that will run through December 2010. If he does not re-offend during that period, the domestic violence assault charge will be dismissed and he will be sentenced to 10 days in jail for disorderly conduct.

Morgan criticized these decisions, noting the offender ends up with no record for domestic violence. She said the offender is not held accountable and is not made to admit his behavior.

Court program underused

One program aimed at reducing repeat offenders is the domestic violence court.

The domestic violence courts were started in Maine in 2002. There are now 11 courts in the state that use the program, including 6th District Court in Rockland. The Rockland domestic violence court began in February 2007.

Jody Johnson, the domestic violence coordinator for the state who also administers the federal grant that has helped operate the court program, said there are 12 active cases in the court in Rockland.

The state District Court in Skowhegan has the most active cases with 75. Waterville has 63 active cases, Portland has 59, Biddeford has 48, Springvale has 47, York has 25, and Lewiston has 20. The only two courts that have fewer active cases are Machias and West Bath, which both have eight active cases.

Under the domestic violence court program, people convicted of domestic violence assault are required to meet on a regular basis not only with a probation officer but also with the judge who sentenced them. The judge will monitor the case to make sure the offender is following through on court-ordered conditions such as counseling.

Cases are directed to that program upon the recommendation of the District Attorney's Office although Johnson said a judge could also recommend a case to the system.

"It's not used a lot here," Rushlau said. "We will look into why not that many cases go through the [domestic violence] court."

He said one concern defense attorneys raise in objection to use of the domestic violence court is that defendants will miss more days of work with these meetings with a judge.

"We're doing whatever we can to keep them from coming back," he said.

In terms of acting on cases referred to the District Attorney's Office by police, Rushlau said a decision on how to prosecute depends on the evidence.

"Typically, like any other criminal case, domestic violence cases will rise and fall on the strength of the case," Rushlau said.

He said when there is a strong case, his office ideally would like to go to trial to get a conviction for domestic violence assault but there is no guarantee of a conviction when going to a jury trial.

The assistant district attorneys have significant discretion in cases, he said.
"I can't get involved in every prosecution in all four counties," he said.
Rushlau is the chief prosecutor for Knox, Lincoln, Waldo and Sagadahoc counties.

He said that if a case goes to a jury and the defendant is acquitted there are no consequences. That is why prosecutors will consider plea agreements. Rushlau said he objects to the phrase "plea deal" and instead "plea agreement" is the more concise phrase. In a plea agreement, both sides back away from their original positions.

Rushlau said the District Attorney's Office and domestic violence prevention groups have shared goals but not shared means to achieve the goals.

He said when domestic violence occurs in front of children, his office will often prosecute, even when the victim wants the case to be dropped, because of the impact that witnessing the offense has on the youngsters.

Rushlau said all the pieces are in place to deal with domestic violence cases but the problem is often communications. He said an improved police database system allows officers to know who is on bail for domestic violence and what their conditions are. If the suspect is stopped by an officer and is in the presence of the victim, police can make an arrest.

The District Attorney's Office will make a reasonable effort to contact both the victim and investigating police officers when a domestic violence case is being considered for a plea agreement. Rushlau said some officers believe that their role ends when the case goes to the prosecution - other than testifying if the case goes to trial - while others want to be kept informed of the developments in the case.

He said there are times when officers get little advanced notice of an upcoming court hearing, which gives them little time to contact the victim in the case.

There are times when victims are reluctant to testify and will avoid contact with police and prosecution. Rushlau said there have been several instances when victims have hired lawyers to speak out for their desire not to testify.

The number of protection from abuse orders filed in Rockland courts has remained steady, ranging from 185 to 213, since 2003.

Statistics maintained by the Maine Attorney General's Office on cases handled by each of the eight prosecutorial districts in Maine show that District 6, which includes the four counties overseen by Rushlau, has a higher rate of convictions for domestic violence cases than the state average.

In 2007, the conviction rate was 82 percent. The statewide average was 71 percent.

Another point of contention by New Hope for Women is the lack of use of the batterer intervention program it operates.

The organization's intervention program for batterers is called "Time for Change" and is certified by the Maine Department of Corrections. During the most recent fiscal year for New Hope, 67 people went through the program.

Natasha Plaisted, who oversees the program, and Morgan said going through the program is more comprehensive than simply being assigned to anger management counseling. The course is once a week for 48 weeks.

The goal is to hold the offenders accountable for their actions and to make them see that what they are doing amounts to oppression of women.

Morgan said in the end, the success of tackling domestic violence in the community takes a coordinated effort from many parties.

"When police, prosecutors, bail commissioners, probation officers, judges and victim services work together to give victims a clear and consistent message that their safety is of primary concern, and give a clear and consistent message to batterers that they will be held accountable to the best of the system's ability, that's when we have a chance of taking significant steps toward ending domestic violence," Morgan said.