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November-December 2010

DIVO, the ultimate oxymoron

Victim advocates in Lubbock recently encountered defense-initiated victim outreach (DIVO) where a “victim outreach specialist” hired by defense counsel contacted the elderly widow of a murder victim. Here’s their advice for others.

Pam Alexander

Executive ­Director of ­Lubbock Victim ­Assistance ­Services, Inc.

It was a smothering, triple-digits July afternoon in 2007, when a retired 73-year-old U.S. Air Force Lt. Colonel, who bravely served our country in Vietnam and came home to victoriously battle the cancerous effects of Agent Orange, slowly pulled into his garage. (For privacy’s sake, we’ll call him Johnny Smith.) He had been out running errands so he and his wife of 49 years, June (also not her real name) could fly to San Antonio the next day to see their oldest son, Timothy, retire from the Air Force. Timothy had flown in Desert Storm like Johnny had in Vietnam, and their pride was bursting.

    Johnny walked to his front yard to make sure his American flag was flying when he saw a stranger walking down the street. Being a good Christian man, Johnny offered the man a bottle of water on the sweltering day. Johnny left the young man, Alonzo Lewis, in his garage while he went inside for the water, unaware that Lewis had been smoking crack cocaine since early in the morning and was craving more. Johnny brought the water back out to Lewis in the garage, and after drinking it, the young man pulled out his fixed-blade hunting knife, stabbing Johnny multiple times before stealing his buffalo nickel money clip and walking away. Shortly thereafter, June, who had been in the house putting away groceries, walked into the garage after hearing the commotion, only to discover her husband lying in a pool of blood. She would never celebrate their 50th wedding anniversary with her beloved husband and the father of their five children.

    Due to incredibly effective police work, the assailant was apprehended in a very short period of time and kept in jail with a high bond. Lewis was a 29-year-old refugee who moved to Lubbock from Louisiana after Hurricane Katrina. The most disturbing facts of the case came directly from his statement to detectives. He told them that he needed more crack and that he knew the “old man” had money. After he drank the water, Johnny turned his back. Without saying a word, Lewis took out his knife and started stabbing him. Johnny handed him his money clip, but the defendant continued stabbing him more than 35 times. The defendant left and went to work shortly after the crime as if nothing had happened.

    The crime dramatically altered June’s life. Even with Lewis incarcerated, June triple-locked her doors every night, flinched at sudden noises, and felt the loss of common, everyday security.

     As the director of Lubbock Victim Assistance Services, Inc. (LVAS),1 I was asked by detectives to assist the family. I wanted them to know that the criminal case was in the best possible hands, so I met with them in their home along with Matt Powell, Criminal District Attorney in Lubbock County, Sunshine Stanek, the trial chief, and Tray Payne, the homicide chief. The prosecutors assured the Smiths that it was their job to see that justice would be served and inform them that capital murder charges had been filed. The family was also told that the suspect’s history would be checked, even as far back as his elementary school days, to determine whether to seek the death penalty. Although Matt wanted the family’s opinion concerning the death versus life determination, he was always firm in his stance that the final decision would be his. I knew this would keep the stress of that choice off the family and place it with the criminal justice system, where it truly belonged. (Though Matt was seeking the death penalty at first, he ended up allowing the defendant to plead to life in prison after taking into account not just the defendant’s history but also the Smith family, who were split on their opinion of the death penalty.)

More hurdles

Being with the family since July 2007, I got to know them all pretty well. Because four of the five adult children live out of state and the one in Texas is nine hours away, I kept in constant contact with June, the widow. She handled the violent event extremely well when all of the children were at her home right after the crime. For several months, the kids took turns staying with her for extended periods, but eventually all of them returned to their lives and checked on their mother with phone calls to her and e-mails to my office. June and I kept in regular contact during this time.

    As if mourning the loss of her husband weren’t hard enough, June was dealing with other difficulties. Her oldest son and I were fighting a battle with the Veterans Administration (VA) over Johnny’s benefits; because he had not died from natural causes or a disease but from a violent, senseless act, his benefits decreased automatically by $2,500 per month. Not only had June lost the love of her life, but she was now facing an economic dilemma! She was in her golden years, a time that should have been spent with her husband traveling and enjoying their retirement, but instead, she was confronted with a mountain of bills. In 2009, she also faced personal health issues that weighed heavily on her.

What is DIVO?

One day in early April 2009—nearly two years since I was acquainted with the Smith family—I received a phone call from a woman I knew from work, a local social worker. In a very short conversation, she talked about a program called DIVO and asked me to meet the next day with the woman who had developed it. It was the first I’d heard of it, and she wasn’t calling about the Smith case at all—she simply wanted to discuss this new program. Because of a scheduling problem, we could not meet, but a few days later June would hear from someone regarding DIVO too.

    DIVO, for those who are unfamiliar, stands for defense-initiated victim outreach. Type those words into an Internet search engine, and quite a bit of literature pops up. An article in Champion, a publication of the National Association of Criminal Defense Lawyers, explains that DIVO “seeks to reduce the trauma to victim-survivors that often results from the adversarial and technical nature of the legal process … by providing a more active role for homicide victim-survivors in death penalty cases without compromising the due process rights of capital defendants.”2 Another article purports that DIVO is “a method of engaging in dialogue with surviving family members” and claims that “the interests of the defense team and the interests of the victims are far from being mutually exclusive. … Victims have questions only the offender can answer. Victims want to be heard not only by the community at large, but specifically by the offender and his or her representatives.”3 These publications urge defense counsel in capital cases to contact victims’ families through a trained “victim outreach specialist,” who is not a member of the defense team but rather a hired expert, to “respond thoughtfully to queries from survivors and to develop a relationship with the survivors that is comfortable for survivors and guided by the interests and needs of the survivors that the defense is uniquely able to meet.”4 It was started at the federal level in the 1990s and within the past few years has trickled down to a handful of death penalty states. Texas is apparently now one of them.

    A few days after the phone conversation with my former colleague, I received a frantic call from June that she had received a letter from the defense team and that it was extremely disturbing to her. I reviewed the letter, which stated that a “victim outreach specialist” would be contacting her; it did not ask if this person could contact her, but that June could expect a call. The letter stated that the specialist was not a member of the defense team but that the defense paid for her services (with no cost to the victim’s family—however, when the capital murder defendant is indigent, DIVO victim specialists are actually paid with county funds to the tune of $75 per hour). The letter upset June considerably. She said, “I have a victim specialist, and she is not paid by his defense team! How dare they!” She stated emphatically that she did not want to speak to or be contacted by the victim outreach specialist mentioned in the letter. I called the defense attorney, but he was out of town, so I contacted Matt Powell, the CDA, and explained my concerns quite passionately. He, too, fervently expressed his concerns.

    I conducted some research on the program to find out everything I could because no one seemed to have much information about DIVO. After researching this program in great detail, I believe that DIVO has the underlying agenda to abolish the death penalty in Texas. For example, one statement in the information I gathered says that “all but death can be adjusted,” and DIVO is utilized only in capital cases. By contrast, my opinion (as a victim’s advocate) on the death penalty is never discussed; we give our district attorneys the power to make these decisions and trust them with that.
    As I noted already, DIVO charges $75 per hour to county taxpayers to accomplish an anti-death penalty agenda and try to duplicate our services to crime victims—services that we already provide months, if not years, before the defense team’s victim specialist comes on the scene. I find it outrageous that DIVO charges this kind of money when victim services funds are cut every year and we are forced to serve more victims with less money.

DIVO enters the picture

Several days later, I received another phone call from June, saying that she received a letter from Stephanie Frogge, the victim outreach person mentioned in the defense attorney’s letter. (A copy of this letter is available at www.tdcaa.com; search for DIVO.) June, who was very distressed, asked me not to allow this person in her life. I immediately contacted Ms. Frogge and politely explained the situation and asked her not to contact June. Ms. Frogge told me that she was going to call anyway, despite our protests.

    Because my conversation with Ms. Frogge was not enough to stop her call, I called the Attorney General’s office, TDCJ’s Victim Services, TDCAA, and the Governor’s Office to find out how to stop DIVO. They provided information about it and echoed my concerns, but no one could do anything to halt the process. I also met with the public defender’s office for capital murder cases, but that office was not handling this case because it had just been set up by Lubbock County. I met with the chief public defender for capital cases to see if he knew anything about DIVO and to get insight on the program to combat this problem. All he told me was that his office had no choice in the matter, that DIVO was simply a resource. Ms. Frogge’s letter did state that June was not obligated to accept her services, but she was not willing to take my word that June did not want to speak with her.

    About a week later, June was at home playing the piano, trying to relax before leaving for a breast biopsy at the doctor’s office, when the phone rang—it was Ms. Frogge, as promised. A few minutes later, June called me, sobbing uncontrollably to the point she could not talk. After several minutes, I was able to get the details. June simply told the caller that she did not wish to speak with her and hung up. However, she was already very upset and felt re-victimized by this call, all in the name of “victim outreach.” To add to her trauma, the retired colonel’s birthday was the next day, and she was having a really hard time dealing with that memory. Of course, the DIVO “victim outreach specialist” knew nothing about June, her financial troubles, her husband’s upcoming birthday, or any of the health issues June and her family had shared with me over the years. I left a very terse message on Ms. Frogge’s voicemail that same afternoon, and finally, the attempted contacts from DIVO stopped.

    Because the call from the victim outreach specialist was so traumatic for June, I recognized that other victims might have a similar response, so I met with assistant criminal district attorneys Sunshine Stanek and Scott Morris to discuss a strategy for future cases. Prosecutors and victim assistance coordinators who deal with death penalty cases should inform families—once the DA’s office files notice that it will seek the death penalty—that someone from DIVO might contact them.

    When defense attorneys request permission to use public funds to pay for a victim outreach specialist, prosecutors should object to such an expenditure and explain that the prosecutor’s office already provides services to all crime victims. Spending taxpayer money on duplicative efforts is simply wasteful.

    I have also developed a form letter telling the defense team that the victim’s family does not want to be contacted by DIVO; if the family chooses to sign it, I send it to defense counsel before DIVO has made contact to prevent any calls or letters down the road. This should deter the re-victimization of the family.

    If a family does want to talk with the DIVO, the current victim’s services coordinator can be a part of that dialogue too. The advocate or her elected prosecutor should contact the defense team to arrange meetings that work with everyone’s schedules.

    As the director of Lubbock Victim Assistance Services, Inc., I gladly offer my services to district attorney’s offices or other agencies that encounter DIVO to help stop re-victimizing our victims’ families. My contact information is 806/763-3131 at the office, 806/789-5857 on my cell, and pamalexander ( a t ) aol ( d o t )com.

Endnotes

1 Lubbock Victim Assistance Services is a non-profit organization that works closely with law enforcement and prosecutors.  We are with the victim and/or victim’s families shortly after the crime occurs, during plea hearings or trial, and through the probation, parole process, and even when the defendant is incarnated.
2 Redfield, Terrica L., “The Role of Victim Outreach,” Champion magazine published by the National Association of Criminal Defense Lawyers, December 2006, page 49.
3 Branham, Mickell and Burr, Richard, “Understanding Defense-Initiated Victim Outreach and why it is essential in defending a capital client,” Hofstra Law Review, Vol. 36: 1019, page 1023.
4 Id. at 1024-5.