Prosecutors Taking Harder Line Toward Spouse Abuse : Violence: New legal techniques tested. But critics say attacks on women are still not taken seriously enough.


Responding to a growing volume of domestic violence complaints and years of pressure from women's groups, district attorneys throughout the state have begun testing new legal techniques, investing in specially trained prosecution teams and seeking harsher penalties.

Often prodded by advocate groups or publicity from cases in which beatings escalated to murders, some prosecutors began hardening their views on domestic crime in the mid-1980s and more appear to be joining the trend each year.

"I consider it murder prevention," said Kern County Dist. Atty. Ed Jaegels, who was one of the first prosecutors in the state to take a tougher approach toward domestic violence cases.

It is a crime problem of daunting proportions. The United States surgeon general has identified battering as the nation's single largest cause of injury to women. In 1992, 29% of all female homicide victims were slain by their husbands or boyfriends, according to the FBI.

But even as some district attorneys experiment with more and tougher prosecutions, others say jail time, except in the most serious cases, just exacerbates the stress of family life and further endangers victims. Some academic research also calls into question the common wisdom that arrests are a powerful deterrent to batterers.

In San Bernardino County, Dist. Atty. Dennis Kottmeier allows many first-time offenders to enter a 32-week counseling program rather than face charges. "Thirty days in jail--what good is it?" asked Jo Ann Nunez, program coordinator for San Bernardino's domestic violence unit. "They just come out more angry."

Encouraged by tougher law enforcement stances, victims' rights advocates nonetheless complain that the criminal justice system is still too often reluctant to treat spouse abuse with the gravity it deserves.

"I think we've made tremendous progress, but I think there is a real aversion to view this as a serious crime," said Lisa E. Brandon, president of California Women Lawyers.

That progress has been born of more than a decade of effort. Laws have been amended, lawsuits filed and new legislation adopted to force domestic violence out of the realm of family business and into police stations and courtrooms.

Victims also have been listening. Domestic violence calls to police rose by 27% in California between 1989 and 1993, according to state Department of Justice figures. Spouse abuse arrests jumped by 33% during that same period.

It is not, experts say, that battering has increased so much. Rather, victims are less likely to remain silent about it.

The recent avalanche of publicity over the O. J. Simpson case--in which the former athlete is accused of murdering his ex-wife and a friend of hers--has sparked further attention, prompting state and local officials to appropriate millions of dollars in otherwise austere budgets to assist battered women and intensify prosecution.

Developing a precise picture of how prosecutors and the courts handle spouse abuse cases is difficult. State Department of Justice figures on prosecutions are incomplete, as they rely on reporting by local and county agencies. Overall, about 60% of spouse abuse arrests are tracked, and the thoroughness of reporting varies from county to county.

Still, a Times' analysis of state statistics for 1990, 1991 and 1992 identified some general trends. Statewide, about two-thirds of those arrested for felony spouse abuse were prosecuted, with 80% of those cases treated as misdemeanors. Of those defendants who were prosecuted, slightly more than half were sentenced to some jail time.

The figures indicated dramatic variation in county prosecution rates, which in many instances reflected local district attorneys' differing approaches to domestic violence. For example, Kern County filed charges on 91% of the cases that it received from police while San Bernardino County filed on slightly more than a third.

District attorneys say spouse abuse cases are among the most difficult to prosecute. Caught in a tangle of dependency, guilt and love, victims are often unwilling to testify against the batterer. And juries can be loath to convict when faced with uncooperative accusers.

To overcome such obstacles, some district attorneys have adopted new strategies.

Prosecutors in counties large and small alike have launched efforts to build tighter relationships with victims to ensure their cooperation.

Some counties--including Sonoma, Sacramento and Ventura--have formed teams to handle spouse abuse cases that include a victims' advocate, in addition to lawyers and investigators. The advocate can help the victim obtain counseling, alternative housing or a restraining order. But mostly, said one district attorney, they "hold the victim's hand" when the prosecutors are too busy to take the personal approach.

Sonoma County Dist. Atty. Gene Tunney said the number of case filings has risen dramatically in the two years since his office adopted a policy of having one attorney file the initial charges and stick with the case through trial. That way, Tunney said, the prosecutor builds a relationship with the victim, making it less likely that the complainant will be persuaded by a repentant or threatening spouse to drop charges.

Still, Tunney said, "No matter how much time you spend with these ladies, many will still not prosecute."

When that happens, some prosecutors are reversing an age-old legal tenet and are electing to pursue charges without a cooperative victim, relying on 911 tapes, photographs of injuries and police reports to prove the case.

"In terms of getting convictions, it's clear that works well," said Jaegels of Kern County, whose department sent three-quarters of those arrested for felony spouse abuse to jail, according to Department of Justice figures.

Increasingly, prosecutors say the crime of domestic violence is a crime against society, not a family matter. "We tell the victim, 'it's a crime against the people, not just you,' " Jaegels added.

The Los Angeles County district attorney's office and the Los Angeles city attorney's office for the last several years have pursued cases without the victim's cooperation. "It's our stock in trade now," said Lydia Bodin, deputy in charge of the domestic violence unit of the district attorney's office.

Take, for example, a complaint that Bodin reviewed with detectives on a recent, typically hectic day. A man who had been arrested for abuse three times and twice convicted in San Diego County was again under arrest for kicking his girlfriend--the same woman--and punching her 10-year-old daughter in the face.

"She says she wants to drop charges because he's doing so much better," Los Angeles Police Detective Carol Yarbrough related.

It didn't matter. Bodin filed charges of spouse abuse and cruelty to a child.

In another of Yarbrough's cases, a woman with a 4-inch cut in her breast did not want to press charges. "We've got pictures," Bodin said with satisfaction. The case would proceed.

Other prosecutors will not pursue cases without the victim's help.

"In this county, we require the victim to be cooperative," said Fresno County Dist. Atty. Ed Hunt. "If they won't cooperate before filing, you can be pretty certain they won't cooperate later on in court."

Similarly, Dale Miller, senior deputy district attorney in Contra Costa County, said his prosecutors will honor the wishes of the victim. "If they want to try to keep the family intact, we will listen to the victim" and not file charges.

Even aggressive prosecutors say there are clear limits to what they can take to trial.

On one recent morning, Kimberly Briggs, domestic violence specialist with the Alameda County district attorney's office, received reports on 22 arrests for felony spouse abuse. Of that batch, she chose to file charges on 12. The remaining 10, she said, had problems: There were no injuries, no corroboration or no witnesses--and, as a result, no charges.

The fact that the vast majority of spouse abuse cases are filed as misdemeanors is a source of continuing frustration to victims' rights advocates.

"I think spousal battery is frequently dropped to a misdemeanor for reasons of expediency and insensitivity on the part of law enforcement and the courts," contended Susan Frascella, chairwoman of the Southern California Coalition on Battered Women, an alliance of advocacy groups.

Prosecutors respond that in many cases the level of injury simply does not warrant a felony filing--which, upon conviction, carries a maximum penalty of a two- to four-year prison term, as opposed to a mixture of probation, counseling and shorter periods of jail time for misdemeanor convictions.

Some prosecutors also concede that there is room for improvement.

"It's probably too high," Los Angeles County Dist. Atty. Gil Garcetti said of his office's misdemeanor filing rate. According to state figures, 90% of the county's spouse abuse cases are filed as misdemeanors.

Garcetti, who is creating a new family violence division that will specialize in spouse and child abuse cases, said his staff is adopting various policies that should boost the felony rate: reviewing misdemeanor cases when the city attorney's office asks them to take a second look, and more closely examining a defendant's record.

"I think we are changing a mind-set that all these cases are misdemeanors," Garcetti said.

Still, the word does not seem to have reached all his outlying offices.

Deputy Los Angeles City Atty. Rick Schmidt described one typical case involving a San Fernando Valley woman beaten by her live-in boyfriend.

According to the police report, the woman was struck with closed fists and a board. She had numerous visible injuries, scrapes, a black eye swollen shut and a large lump on the side of her face. She was treated by paramedics at the scene and taken to a hospital emergency room for a possible broken hand. The district attorney's office had referred the case for misdemeanor prosecution.

"Sounds like that should have been a felony," acknowledged Garcetti, adding that he hopes to avoid such errors by eventually directing all spouse abuse cases, countywide, to the family violence division.

Although law enforcement officers and prosecutors get credit for taking domestic violence more seriously in recent years, judges are seen by some as the last--and crucial--frontier. No matter what police and prosectors do, the fate of a defendant is ultimately up to the judge.

"Some judges, . . . they know how important these cases are," Garcetti said. "Others, they hate these cases. They don't treat them seriously. They want to get them out of their court. If a victim, a chief witness, is one minute late, the case is dismissed. Those things happen."

Lisa Foux, who has been a domestic violence victims' advocate in Los Angeles County courts for six years, says judges often lack sensitivity and training on domestic violence matters.

"What we don't have is proper accountability for judges," said Foux, describing them as "uneducated gods" who will make unthinking remarks and jokes that undermine the victims and reinforce batterers.

She tells of judges who quiz defendants about whether they will behave--implicitly characterizing battering as mere misbehavior--and of judges who ask victims if they have any objection to the release of their abuser--when the man is standing a few feet away.

Among a slew of state legislative proposals on domestic violence matters, a pending Assembly resolution would require judges to attend a one-day domestic violence training session every year.

Los Angeles Superior Court Assistant Presiding Judge Lance Ito said the characterization that judges are weak on domestic violence is unfair. "Any crime of violence has priority," said Ito. "I don't think too many judges wash out too many of these cases."

Ito said that judges too are frustrated by the difficult nature of these prosecutions. In particular, he noted the problem that the uncooperative victim poses.

"Often there are serious injuries and implausible explanations as to how it happened," said Ito. "The problem is, 75 to 90 days later, when the case comes to trial, emotions have cooled down, economic realities have set in, and (victims) often become reluctant."

In one recent case heard in Ito's court, the victim was severely beaten with a hard plastic rod and burned twice in the face with a cigarette. Though the victim initially accused her spouse of the crime, on the witness stand she said she had been mugged earlier the same day and blamed the injuries on that incident.

The case was dropped when there were no other witnesses or corroborating evidence.

Judge Robert Mallano, presiding judge of the Los Angeles Superior Court, said the judiciary is keeping pace with other branches of law enforcement. The court, for instance, is now accessible 24 hours a day, seven days a week for spouses seeking restraining orders against abusive mates. And Superior Court judges have in the past year attended seminars with local police agencies to coordinate their efforts to curb spousal abuse.

Just what judges should do with batterers is a matter of some contention across the state and nation.

Speaking generally of courts nationwide, Deputy Los Angeles City Atty. Alana Bowman said, "Many prosecutors have a policy not to recommend jail in domestic violence, but only a counseling program."

In many cases, added Bowman--who supervises the Los Angeles City Attorney's Domestic Violence Unit--that's "because the victim is saying don't put him in jail, and also (because) of the traditional belief by many in law enforcement, prosecution and judiciary that we can't ruin this otherwise good citizen's employment chances or standing in society simply because he screws up in this one area we really don't consider to be a real crime.

"Again, it's viewing domestic violence as less than a regular crime," added Bowman, who thinks batterers should be prosecuted rather than allowed into diversion programs.

Bodin, of the Los Angeles County district attorney's office, is among those who believe that jail is the most effective medicine for batterers.

"Counseling--in terms of changing the offender--is not something I have a great deal of faith in," she said. "The guys who go to counseling and don't do jail time--it's a revolving door for them. It doesn't work."

Others argue that jail sentences are an unrealistic solution. There simply isn't enough jail space for all the batterers, said University of Maryland criminology professor Lawrence W. Sherman. Moreover, he said, carefully conducted research has yet to be done to determine if jail time really does stop repeat offenses.

Sherman, who calls himself a "voice in the wilderness," has equally provocative views on the wisdom of arrests for misdemeanor-level spouse battering. He authored an oft-cited 1983 study that found that arrests did deter repeat offenses, spurring the adoption of state and local mandatory arrest policies. (California does not have one, but a number of cities do, including Los Angeles, Pasadena and Santa Monica.)

In follow-up studies issued in 1992, Sherman and other researchers arrived at much more complex conclusions: Over the long term, the effectiveness of arrest depended on whether the offender was employed. If he was, arrest reduced recidivism. If he was jobless, he was more prone to domestic violence after an arrest.

"We have a policy elite community that is shoving arrests down police throats," Sherman grumbles, when in fact, "we don't know what to do" to prevent domestic violence.

Bowman and others retort that such social critiques are curiously absent from other offenses. "We don't examine whether or not . . bank robbers should be tried and sent to prison," Bowman said. "The clearest message we can make is if you beat your wife or girlfriend, you go to jail."

Times staff writer Lynn Smith and data analyst Sandy Poindexter contributed to this story.

* MURDER IN THE FAMILY: A study finds relatives commit 16% of big-city homicides. A13

Getting Help

District attorneys in Southern California are making significant changes in the way they handle domestic violence cases and are increasing resources devoted to these prosecutions. Here is a look at how domestic violence cases are prosecuted in six counties.


* Program: Established domestic violence unit in October, 1993.

* Staff: Five full-time attorneys in the Downtown office, which covers about 30% of the county. Dist. Atty. Gil Garcetti said he plans to elevate the unit to division status and increase number of deputies to 40 to 50 countywide by 1996.

* Policies: Will prosecute without victim's cooperation. Seeks jail time for offenders, even if most of the sentence is suspended by the court. Seeks counseling as condition of probation.


* Program: Established a domestic violence unit in April, 1993.

* Staff: Two prosecutors and one investigator devote full time to felony spousal abuse cases. Two deputies in each of the county's five regional offices trained to handle misdemeanor spousal abuse cases, in addition to their routine caseload.

* Policies: Will prosecute without cooperative victim. Seeks sentences that combine jail time with 32-week counseling program.


* Program: Established victim/witness assistance unit in 1991.

* Staff: Twelve advocates work with victims of violent crimes, often in group counseling sessions, to gain their assistance in prosecutions. Dist. Atty. Grover C. Trask II said he wants to establish a team of prosecutors to specialize in domestic violence cases.

* Policies: Will divert first-time offenders to counseling programs. For more serious offenses, seeks jail time with probation and counseling. On cases filed, will not plea-bargain sentences. Will prosecute without cooperative victim.


* Program: Established pilot program in 1990, in which some first-time offenders may enter a 32-week anger-management counseling program to avoid prosecution.

* Staff: One administrator to review candidates for program and monitor compliance. Prosecutions handled by regular staff of deputies.

* Policies: Offenders can be eliminated from the counseling program and prosecuted if an additional police report is filed, or if offender misses counseling dates. When cases are prosecuted, counseling is sought as a condition of probation. Does not require victim cooperation for filing of charges.


* Program: Established specialized domestic prosecution units in both the district attorney's and city attorney's offices in 1988. Staff includes attorneys, investigators and victim's advocates.

* Staff: Ten prosecutors each from the offices of the city attorney and district attorney work full time on domestic violence cases, along with 23 full-time police investigators and four victim's advocates from each office. In addition, more than 20 part-time volunteers assist the city attorney's team as victim's advocates.

* Policies: Will prosecute without cooperative victim. Seeks jail time even for many first-time offenders. Seeks counseling and community service in addition to jail time.


* Program: Established family protection division in 1984 to specialize in prosecution of domestic violence.

* Staff: Twelve attorneys, two investigators and two victim's advocates who work as liaison between prosecutors and the battered spouse.

* Policies: Will prosecute without victim's cooperation. Seeks minimum 30 days in jail for offenders. Seeks counseling as condition of probation. Aids victims in winning restraining orders against abusive spouses.

Source: District attorney offices

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