DA strikes back at DV law

Instead, the man went to jail because, according to Guidotti, his wife - so afraid of testifying she hid in her house to avoid being served a subpoena - could not be forced to participate. Without her cooperation, prosecutors couldn’t even prove the beating happened in San Mateo County and were left offering him a lesser plea just to get any conviction, Guidotti said.

The outcome may not have happened before 2009. The difference, according to Guidotti and others in the District Attorney’s Office, is a law authored by state Sen. Leland Yee, D-San Francisco/San Mateo which took effect Jan. 1, 2009. The law, for which Yee has been pushing since 2005, mimics the 1991 sexual assault shield law that prevents victims from being incarcerated for refusing to testify.

As in all criminal cases, the victim is considered a witness in the people’s case and opponents believed their omission would lead to fewer criminal filings and successful prosecutions in a crime often happening behind closed doors.

Yee and domestic violence advocates like those at Community Overcoming Relationship Abuse argued the practice re-victimized those already abused and disagreed that prosecution would be more challenging - impossible even - if the key witness was allowed to refuse.

Since Gov. Arnold Schwarzenegger signed the bill, the San Mateo County District Attorney’s Office has tracked its domestic violence cases closely to see what effect, if any, bore out.

Some of the numbers surprised even Guidotti.

The filing rate is consistent within the last several years which Guidotti said makes sense because most decisions are made before knowing if the victim will participate.

Even so, filings for both felonies and misdemeanors are down by 50, from 938 in 2008 to 890 this year.

Even dismissals aren’t that telling, with 245 in 2009 the figure is "right in the mix" of the past four years. Dismissals can include those eliminated as part of a plea bargain on other charges but the office does not include explanations for each case.

The most markedly different numbers are in jury trials. In 2009, prosecutors brought only 10 domestic violence cases to trial compared to 26 in 2005, 30 in 2006, 21 in 2007 and 18 in 2008.

Better offers for defendants

And what does this mean?

The bottom line, Guidotti said, is that defendants are getting much better offers to settle the case.

"When the victim does not cooperate we have to sweeten the offer to protect our case," Guidotti said.

The woman whose husband ruptured her intestines is a vivid example, she said.

The trials ended with four convictions, four acquittals and two hung trials. One mistrial resolved with a plea bargain rather than a second trial.

Not all of the trials included victim’s testimony and not all testifying victim’s make good witnesses, particularly if they appear vindictive and angry, Guidotti said.

Ironically, the strongest may be victims who recant on the stand but are confronted with earlier statements.

When tabulating the numbers, Guidotti expected to see more dismissals but said the year was obviously spent trying to head those off and get something - even if it’s an ancillary vandalism charge - on the suspect. He or she will still generally leave custody with a conviction and probation. If the prosecution can get the person into domestic violence workshops or anger management classes, Guidotti said that’s even better, but even that is not always a given.

"It is what he deserves? No. But it is something," she said.

But domestic violence advocates say incarceration for the perpetrator isn’t always what the victim needs.

"A win isn’t always necessarily a conviction. A win might be something different," said Jessica Dayton, supervising attorney for CORA.

Maybe the victim gets services from an agency like CORA. Maybe they get moved to a new confidential location. There are any number of outcomes that aid the victim and they don’t necessarily mean climbing onto a witness stand and being re-victimized, Dayton said.

"I understand the state has an interest in putting people who commit crimes and holding them accountable but believe that can be outweighed by a person’s choice they make for their own safety," Dayton said. "In almost all situations, the victim knows what is in their own best interest."

Law’s origin

The disparate positions of Guidotti, Dayton and even author Yee are no different really than those argued before the Legislature passed the bill.

The seeds of the bill originated in San Mateo County after Katina Britt refused to testy against an ex-boyfriend who attacked her.

According to the prosecution’s case, David Gilford broke into Britt’s home on Nov. 9, 2003 and assaulted her so badly she was left unconscious and with a bleeding kidney. During the November 2005 trial, Britt refused to cooperate and prosecutors were forced to drop the domestic violence charges. Gilford was convicted of assault and residential burglary, imprisoning him for seven years.

Judge Robert Foiles threatened to jail Britt for contempt, sparking a tangential legal battle that ended after she secured an emergency stay of the order and a state appeals court declined to review the matter. Instead, it dissolved the case, calling it moot once Gilford was convicted.

The aftermath propelled Yee to change the little-known aspect of law which allows the victim to be held in contempt, mandated into counseling or incarcerated.

Speaking before the Legislature about the bill, Britt said she felt re-abused by the process.

"I felt that the system had given up on me," Britt testified. "The district attorney did not protect me, even though I was a victim of a serious bodily injury crime. The DA wanted to victimize me once more and the court willingly obliged."

Following her testimony, the bill flew through the Senate 29-6 and the Assembly 45-22. In comparison, a 2005 attempt fizzled when, in the face of opposition from prosecutors, Yee yanked it from consideration.

Although unsuccessful, opponents also spoke up against the bill in 2008. Squaring off against domestic violence advocacy groups were the California District Attorney’s Association, the Los Angeles County District Attorney’s Office and retired San Mateo County Superior Court Judge Quentin Kopp, himself a former state senator. Kopp, testifying before the Assembly, called the bill "a simplistic, inflexible policy which contradicts a 30-year effort by the Legislature and judiciary to treat domestic violence in a somber manner as a serious crime."

War of words

The harshest words, however, flew in the press between Yee and San Mateo County prosecutor Morris Maya.

In a Daily Journal article after the proposal passed a key committee, Yee compared prosecutors to military personnel extracting confessions from Guantanamo Bay detainees who believe the ends justify the means. Maya, a prosecutor who formerly handled domestic violence cases for the San Mateo County District Attorney’s Office, submitted a personal perspective piece for this paper’s April 4 opinion page in which he opined that "cemeteries will become much more crowded" if the bill passed.

With the public war of words cooled and the law a year old, Yee spokesman Adam Keigwin said the office stands behind the legislation and the belief that the abused won’t come forward if they are re-victimized by the legal process. Keigwin said he would "be very surprised" if the prosecution number had changed greatly.

When told of the local figures, Keigwin said they "only back up" what Yee argued all along - "that it won’t change."

Guidotti concedes the year has not had as draconian effect as Maya predicted and that, purely on the numbers, prosecutions don’t look that affected until you consider the plea bargains that helped a defendant avoid jail or even a conviction.

"We are no longer holding a trump card," she said.

And, she added, victims no longer have the office to hide behind when they want to testify. Before the law, a victim could tell the abuser she or he was only cooperating under duress, Guidotti said.

Now, there is no loophole.

Guidotti recalled a woman approximately a year ago who repeatedly said she didn’t want to testify. The case resolved with a plea bargain and the woman cried when she learned of the lesser conviction, Guidotti said.

"She wanted us to make the abuse stop, but she couldn’t let him know she wanted the help," Guidotti said.

Dayton, who helped craft the legislation and works with statewide domestic violence groups, said CORA is there to help but only if the victim wants it.

Yee’s law still allows the court to mandate counseling but Dayton said CORA will not participate if the victim is reluctant.

Since the law’s passage, Dayton said calls to CORA’s legal information line have increased slightly by people wanting to know their rights and options.

One trend, Dayton said, is victims being asked to pay a fine if they choose not to testify.

Guidotti said she is unaware of any fines levied in San Mateo County. Guidotti signs off on any fine requests before they head to a judge and said she has yet to approve any.

Solid differences of opinion

Looking forward, Guidotti expects the numbers to continue falling while Dayton is more optimistic.

"This is a tough year with growing pains for the prosecution and victim agencies alike to get used to. But I think those pains can be overcome," Dayton said. "The threat of incarceration took away the victims’ choice and that was the real injustice. This law was necessary and a good thing."

Guidotti, who freely said she would love to see the law repealed, said the problem isn’t so much about victims’ choice as it is taking the same paternalistic attitude used with other vulnerable victims like children.

"I definitely believe in empowerment but when a person is helping themselves," Guidotti said. "And when a victim can’t do that, it is up to the state," she said.