Don’t let an affidavit of nonprosecution stop you!
A real-life application of a previous article in this journal about why we should still prosecute when a family violence victim won’t cooperate
I am a misdemeanor prosecutor, so I do not see many truly violent assault cases or any involving deadly weapons. But I certainly see my share of Class A assault-family violence cases. I have learned enough in my almost three years of prosecuting misdemeanors to identify those cases I will see on the trial docket as opposed to the plea docket. These cases generally have two things in common: First, the intake packet already includes the victim’s signed affidavit of nonprosecution. Second, the defendant has certain identifiable characteristics: He has the ability to convince his sweetie that the affidavit of nonprosecution is the glue that will hold them together; he is arrogant enough to believe that if he can get her to sign the affidavit, nobody will care about her case and certainly nobody will find him guilty of assaulting her; and he has used this tactic successfully (sometimes many times) in the past. One can usually identify a defendant with these characteristics with a little digging. I look at his statements to officers, his arrest history in our county, any civil filings he may be involved in, and of course his criminal history.
One particular recent case
I will call the victim Kimberly. As I read the offense report, I realized she had been assaulted by her live-in boyfriend. Kimberly called 911 that night and told the dispatcher what had happened, she made excited utterances to two police officers, she told an EMT what had happened, she went to the hospital for treatment, and the officer took photos of her injuries. I was actually encouraged because I knew when I saw Kimberly’s affidavit of nonprosecution in the stack of papers that I did not necessarily need her testimony to prove this case to a jury. I even started trying the case in my head at my desk: I could enter the 911 call as a business record and excited utterance; I could enter the jail records (to show how big this guy was compared to the victim) as a business record, her statements to officers as excited utterances, the EMT and hospital records as business records with a medical treatment exception to the hearsay rule, and the photos of her injuries. After reading the defendant’s statements to officers and taking a look at his arrest and criminal history, I signed the information and said to myself, “I’ll see you in trial.”
In the meantime, I went back and read the article published in the September-October 2010 issue of The Texas Prosecutor called, “If she doesn’t want to prosecute, why should we?” written by Dr. Michael Vandehey and Shelly Wilbanks, an assistant CDA in Wichita County. (Go HERE to read it.) I found inspiration in this article when I read it so I kept it handy. It succinctly reminds me of my duty as a prosecutor in pursuing these types of family violence cases and reminds me that not only is it acceptable as a prosecutor to go after these abusers (even if the victim does not want to), but that it absolutely the just thing to do in certain cases.
When Kimberly sat down in my office a week before trial, my first question was, “Why did you sign an affidavit of nonprosecution?” Her answer, as expected, was, “Because we are together again and he hasn’t hit me since this happened.” Well, of course he had not hit her because he had charges pending against him, but that did not seem to be as apparent to Kimberly as it was to me. So I proceeded to play her 911 call. This call recorded Kimberly screaming at our dispatcher that her boyfriend had just beaten her up, that he has beat the (expletive) out of her more than once in the past and the police have never done anything about it, and she demanded to know if we were going to do anything about it this time. Then she hung up.
While the call was playing in my office, Kimberly hunched up in her chair and burst into tears. I thought I had gotten through to her so I said, “Tell me about what happened that night.” She told me her story, which was the same story she told the 911 operator, officers, the EMT, and the nurse at the hospital. She then told me about the prior abuse. She told me it did not matter how hard he hit her because she was already dead inside. She told me she did not leave because she had nowhere to go, she could not keep a job, she had seizures and could not afford medication, she was an alcoholic, and she had a 16-year-old daughter who lived with Kimberly’s mother because she could not support her. I told her about all the services we could provide, that we have a great shelter that would help her get on her feet. I thought she was listening. She said she wanted help.
So we left it at this: I told her that she did what her boyfriend wanted and told us to drop the charges, so she could go home and tell him that. But I also told her that the State was not dropping the case. I told her I would do what I could to keep her from testifying, but I was going to subpoena her to be at the trial. I was also very clear with her that if she lied on the stand, I would have to make her look like a liar in front of the jury (I had a wealth of statements with which I could impeach her if necessary). I told her I did not want to do that and advised her against lying. She told me she understood. We ended the conversation with her telling me to do everything I could to put him in jail long enough to give her time to pack her stuff and get out. Of course, I offered her an officer escort right then to pack up her things and go to the shelter, but she declined.
In a final effort to protect her from the whole trial, I decided to make the defendant an offer he could not refuse. I offered him two months in jail knowing he would serve at least 30 days—plenty of time for her to get her stuff and move on. The defense attorney thought it was a great offer based on the defendant’s criminal history and the amount of evidence I had in my case. Of course the defendant, being the type of guy he is, refused the offer. And, long before I ever talked to the victim, he had declined a deferred offer. (You may be wondering why he was even offered a deferred, so as a sidebar here I would like to say that if I get an abuser with no family violence on his record to plead to a deferred assault family violence in a case where the victim does not want to prosecute, I consider that a success—because I will hand-deliver his next one to the DA’s office with my personal recommendation.)
As I was preparing for trial, I contacted another county for copies of the defendant’s prior deadly conduct (felony discharge of a firearm) and DWI-2nd convictions. I learned he was revoked on his felony probation and spent three years in the pen. There was an old protective order against him in that county too, so I requested copies of those documents. I located the protected person from that order, who happened to be his ex-wife. In talking to her, I discovered he spent years abusing her and harassing her after she left him. I was grateful he had declined my previous offers, and I decided at this point that upon a guilty verdict, I would be asking for the maximum jail time. On rare occasion do I get to ask for max jail time on a class A misdemeanor with this much evidence to back it up.
In the courtroom
I was prepared for voir dire. I talked to the panel in detail about why women stay with abusive men, why victims recant, and why it is so important for the State to prosecute even if the victim does not want to pursue charges (again drawing from Vandehey’s and Wilbanks’ article in this journal). We had four victims of family violence on the panel, who of course were struck for cause or by the defense, but not before they got their opinions out there and told the others why they did not leave their abusive relationships right away. They also said that their lives may have changed sooner if the State had intervened. Wow—I could not have written a better script! When voir dire was over, I knew these jurors were not going to hold it against me for proceeding even when the victim did not want to.
On the morning evidence was supposed to start, Kimberly pranced into court on the defendant’s arm and defiantly told me, “I am going to do everything I can to keep him out of jail.” I counseled her, and our victim’s liaison from the sheriff’s office counseled her. She advised us we were not God, we could not see the future, and she loved him no matter what we had to say.
While talking to her, I heard the judge take the bench. I panicked. I was about to present my opening argument and I now had no idea what I was going to tell the jury about Kimberly. No longer was she the timid victim who did not want to testify—she had become my outspoken adversary! All I could do was be honest with the jury. I explained to them that during opening I usually tell jurors about the evidence they are going to see during trial, but today I could only do that to a point because I really did not have a clue if the victim was going to testify. And if she did, I had no idea what she was going to say. I took them back to voir dire and reminded them about why women recant. Then I put on all my evidence; I did not put Kimberly on the stand. I had proved the case (in my eyes) and I rested.
To nobody’s surprise, the defense called her to the stand to tell the jury “what really happened that night.” She told a whole new story now, a story I had never heard. I impeached her like crazy but she stuck to her new story. She called me names—bad names. It was not pretty, but it was effective for the State’s case. After it was all over, I argued to the jury that you simply cannot protect someone who does not want your protection, but that it was not about Kimberly anymore; it was about the defendant and the community. They found him guilty. I felt different after this verdict than I usually do after a guilty verdict is announced. I was extremely grateful for the verdict, but I felt kind of empty.
The defendant’s ex-wife testified at punishment. She was a hero. After her testimony and before I put the rest of my punishment evidence on, he took my offer of 11 months in jail and waived his right to appeal. I was pleased and his ex-wife was pleased (I think she felt a little vindicated, too). But Kimberly—well, I guess I do not really know how she felt because she did not stay around to chat. Her mother told me she thought Kimberly was a little upset, but that she would be OK in the long run. I hear Kimberly now has some drug issues to deal with.
The jury panel in this case told me during voir dire that they believed it was the prosecutor’s duty to look at each family violence case separately and make a decision to prosecute based on that individual case. That is exactly what I do, but to hear the jury panel suggest it actually (pleasantly) surprised me. This jury panel educated me. I learned that family violence is not acceptable to them either, and they were not going to hold it against me if I brought them a good case even though the victim did not want to pursue charges. I learned that our community is not going to find an obviously guilty defendant innocent just because the defense attorney makes an argument that “the State should have butted out” or that we “have only re-victimized the victim” by making her participate in a trial of which she wanted no part. I learned to trust that my jurors can understand the family violence dynamic.
This was just one example out of the thousands of family violence cases out there, but it is a fair representation of what can happen when we do prosecute an assault family violence case even when the victim does not want to pursue the charges. The decision I make as a prosecutor on whether to try a family violence case will always be made on an individual basis; I do not believe there is a simple office policy that can justly address each case’s merits. I challenge other misdemeanor prosecutors, and I continually challenge myself, not to write off all these cases that come to us with affidavits of nonprosecution. If we have the evidence, we can fight the good fight for the victims who will not, or cannot, fight for themselves, and we should trust our communities to back us up.