By William Knight
Assistant Criminal District Attorney on the Intimate Partner Violence Team, and
Assistant Criminal District Attorney and Chief Prosecutor on the Intimate Partner Violence Team, both in Tarrant County
To address an increase in intimate partner homicides and family violence felonies in our county, Sharen Wilson, our elected Criminal District Attorney, petitioned the commissioners court to create and fund an Intimate Partner Violence (IPV) team. It is comprised of five felony attorneys (including the two authors of this article), three investigators, and an administrative assistant, and its charge is to maximize protection for victims and hold offenders accountable. Chapter 5 of the Code of Criminal Procedure, titled Family Violence Prevention, in its Legislative Statement specifically says, “Family violence is a serious danger and threat to society and its members. Victims of family violence are entitled to the maximum protection from harm or abuse or the threat of harm or abuse as is permitted by law.”
The IPV team focuses on strangulation cases, sexual assaults, aggravated assaults, and assaults where an offender has a prior conviction for family violence, and we implemented systematic changes within our office and county-wide. For example, the packet that police use at the scene of every family violence case was updated, briefs were drafted concerning family violence bond and evidentiary issues to be ready at a moment’s notice, and expert and advocacy training took place office-wide. Major components of the transformation were advancements in trauma-informed responses and training in domestic violence dynamics so that our victim assistance coordinators (VACs), attorneys, and staff could better serve victims and see justice done. By 2019, three years after the team was founded, our office saw our FV homicides decrease by 50 percent and felony FV cases decrease by 10 percent overall.
While success with the felony cases was a welcome change, statistics revealed that the third most frequently filed case in our office was still assault bodily injury–family violence (ABI-FV). In 2019, 2,787 such cases were filed. As the number of ABI-FV cases mounts and the backlog in misdemeanor courts ages, the cases become more difficult to prosecute. Family violence cases historically present their own challenges as law enforcement engagement in personal relationships is often unwelcome or met with resistance. Adding months and years to the time between the incident and the potential trial only exacerbates those issues. With just under 50,000 cases filed in our office yearly, it is not feasible for the intake prosecutors to focus only on family violence cases and identify the unique challenges and pitfalls at each case’s infancy. Simultaneously, law enforcement is also handling a large caseload and must always focus on spreading resources to meet the needs of their specific community. The need for a more thorough review and evaluation of these cases with an eye toward prosecution and justice was necessary. All of us who do this work recognize that the stakes can be very high in these cases as they involve children, families, and violence. Time is of the essence.
New intake program
In light of these difficulties and the seriousness of family violence offenses, in late 2019, our team developed an intake program that combines prosecutors, investigators, and VACs with special knowledge and skills to evaluate and prepare misdemeanor ABI-FV cases as soon as they are filed.
Each day, the cases filed by our 56 law enforcement agencies from the previous day are assessed by the team with three main goals:
1) determine if the case should be accepted, rejected, or returned for more investigation,
2) identify items of evidentiary value, such as statements, pictures, videos, and recordings that could still possibly be obtained to strengthen the State’s case, and
3) make first-day contact with the injured party to obtain crucial information, refer to necessary services, and explain the criminal process.
The team is comprised of the felony prosecutors of the IPV team, the misdemeanor section, felony and misdemeanor investigators, and victims services personnel. The felony prosecutors evaluate the case first. With more prosecutorial and trial experience, these team members can identify issues in the case and anything that might make the case unprosecutable. The felony members also determine what records or evidence may still need to be obtained if the case will be accepted, and attorneys on the team then request those additional items from the detectives filing the case.
An added benefit of this evaluation by a felony prosecutor is training for the newer attorneys. In a year where our county has seen no misdemeanor trials since the emergency order in March, actual trial training has been difficult to obtain. Certainly, we can provide CLE and talk about the law and advocacy, but observing other attorneys’ work in docket and trial is invaluable. It is also currently impossible. By reading senior attorneys’ case evaluations, notes, requests, and communications with the police, misdemeanor attorneys see first-hand what is required to adequately work up a case and get it trial-ready from an evidentiary point of view.
Additionally, newer attorneys learn about “evidence-based prosecution,” a term that has been used frequently in recent years when discussing family violence cases. It is a bit of a confusing term because all prosecution should be evidence-based, but in the family violence realm, it refers to creating a case without a complaining witness. This concept can be difficult for newer trial attorneys who may have experience only in DWIs, thefts, and drug cases, where the witnesses are generally cooperative to prosecution. The art of working up a family violence case using all of the Rules of Evidence and exceptions to hearsay to our advantage has been something the newer attorneys have absorbed in this process.
The investigators and VACs on the intake team reach out to the injured parties in each case. With FV cases, there is a likelihood that while there may have been an “explosive” phase in a relationship, an injured or abused individual will return to that relationship. In many intimate partner violence relationships, research indicates it can take a person seven to eight attempts to leave an abuser. As prosecutors and investigators, we also recognize that someone’s clearest recollection of an event may be closer to the time an event occurred. However, in watching body camera footage, we can also recognize that family violence scenes are hectic, dynamic, and oftentimes dangerous. Patrol officers are juggling quite a bit of information and are also keenly aware that the volatile nature of a family violence scene could result in their own injury or death. Therefore, we recognize that while we need information from a complaining witness close in time to the incident, it may not be collected, or collected thoroughly, at the scene.
As cases are pending with our office, we know that people’s lives change. If we do not contact victims until several weeks or months after an incident, we risk not being able to locate them, losing their cooperation, or devaluing their trust in the criminal justice system. We learned that at a very popular family violence seminar for defense attorneys, attendees are taught, “You must contact the victim before the State does.” A quick Google search of family violence defense attorneys in your area will show the large volume of information that victims are given by the defense when a family violence incident occurs. They are warned of divorce proceedings, custody issues, financial burdens, and in some cases immigration status. They are offered the chance to fill out Affidavits of Non-Prosecution. This is not to say it is a race to provide information; however, it is a missed opportunity if victims are not contacted, given a chance to explain their situations, and apprised of their rights and roles in a case. It is the only chance to gain their trust and make the impression of how our office intends to handle the case. There is no worse feeling as a prosecutor than a first setting where a defense attorney asks, “Have you ever even talked to your victim?” and our answer is, “No.”
We also clearly accept and understand our duty to divulge any exculpatory evidence in a case to the defense. Making initial contact with victims allows the State to gain additional information, evaluate the case further, provide information to the defense, and make informed decisions on making plea offers.
Benefits of the system
By streamlining the process each day and involving not only those with specialized knowledge but also the individual prosecutors who will be assigned to the case for disposition, the cases are strengthened. We can communicate more clearly and directly with law enforcement partners about the needs we have under the law. We are also able to identify cases where an individual defendant may be in need of reformative services, such as drug or alcohol rehabilitation, mental health evaluation, or counseling. By having a working knowledge of the victim’s personal situation and opinion, the State can better understand the goals for each individual case.
As of December 2020, we have evaluated more than 1,600 cases using this method. We rejected about 19 percent of the cases submitted by law enforcement for various reasons: where no primary aggressor was identified, the incident appeared to be mutual combat, no one identified “pain,” or where—worst case scenario—the true victim had been (wrongly) arrested. Making these evaluations led to increased communication with our law enforcement partners, and we have since offered six training sessions on family violence investigation, free of charge, to agencies in our county.
Of the cases we accepted, we enhanced 19 percent of them to felony charges. Affording the maximum protection the law allows for family violence victims meant changing some of the ways we looked at enhancements. We began using cases where the FV finding had been negotiated away on a prior judgment because we recognized that extrinsic evidence is allowed to prove that prior. We started evaluating criminal history and checking with other counties and states at a case’s infancy to ensure we were accepting the case at the highest charge. By speaking with victims early, we frequently learned of other offense reports that had not made it to our office or of unreported incidents where evidence existed to upgrade a charge to Continuous Family Violence.
2020 also presented a time when we could spend a lot of our focus on bonds and bond conditions. We worked with law enforcement to file additional charges for Violation of Protective Order and Violation of Bond Conditions. Oftentimes when we could accept these additional charges, we approached the court to hold an individual with no bond under Art. 17.152 of the Code of Criminal Procedure.
This year, CDA Sharen Wilson created a position to bridge the gap between the civil and criminal divisions for mental health cases. Many of the family violence cases we evaluate involve individuals with serious mental health conditions whose needs were not being met. This new program helped us identify that scenario early in the process. Once the determination is made or we feel we need more information, we collaborate with the ACDA in this position, Ty Stimpson, who communicates with MH providers across the county. In communicating with the complaining witness in the assault–family violence case, who was usually a parent or sibling, we could also obtain the crucial mental health history that helps us direct the case away from a trial docket and into a more appropriate diversion or commitment.
Family violence cases can be difficult. Developing a program to rework age-old local customs to approaching such cases can be arduous and uninspired. In our county, all of us had become too comfortable—law enforcement, the defense bar, defendants, and we prosecutors had been comfortable with a status quo that did not serve victims, our cases, or our community. The trickle-down effect of not having a specific, focused process to identify the needs of these cases was apathy and atrophy in our system. Making these changes has, in a short time, turned intake of FV cases into one of our more robust processes. We have streamlined the work so that with the same resources, we are working smarter, and in turn, meeting our goals of seeing justice done.