Domestic Silence: The Supreme Court Kills Evidence-Based Prosecution by David Feige

Article originally posted on Slate, Friday, March 12, 2004

Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.

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On the third floor of the drab concrete box that is the Bronx Criminal Court, Judges Ruth Levine Sussman and Diane Kiesel preside over courtrooms filled with domestic violence cases — often 75 in a single day. Like many veteran public defenders, I hate domestic violence cases. They are highly charged, emotionally complicated, and very hard to defend. They're hard to defend because these courts dispense a rather specialized kind of justice. In these cases, specially trained prosecutors plead cases before judges who have been specially trained to be “especially sensitive” to a particular kind of crime. What that means in practice is that many judges like Kiesel and Sussman who hear domestic violence cases have attended seminars that make them ideologically sympathetic to the prosecution. Part of that “special training” and “special sensitivity” seems to be accepting the notion that prosecutors — rather than the alleged victims themselves — know what is best for those alleged victims. Defending a domestic violence case against a prosecutor who claims to speak for the victim, in front of a judge who is generally sympathetic to the prosecution, can be bad for a criminal defendant and pretty much ruin a public defender's day. Mercifully, the U.S. Supreme Court, in the unlikely personage of Justice Antonin Scalia, just made life in the domestic violence courts a lot more pleasant for both defendants and public defenders.

One of the peculiar realities of domestic violence cases is that — abused or not — the complaining witnesses often don't want their loved ones prosecuted. Thanks to the Supreme Court, many more of those victims are about to get their wish. This week's decision in Crawford v. Washington, which reversed the assault conviction of Michael Crawford — sentenced to 14 1/2 years in prison for stabbing a man he believed had tried to rape his wife — was overtly about the Constitution's confrontation clause. But the ruling will radically change the prosecution of domestic violence cases throughout the country, empowering complainants to resist the demands of prosecutors and limiting the number of cases that proceed with unwilling witnesses.

It is not uncommon for alleged victims and prosecutors to have divergent agendas. This divergence can become particularly acute when prosecutors proceed with a case despite an alleged victim's desires. Prosecutors are, of course, within their rights to do this — there is no question that once an arrest is made, it is up to the state to prosecute or not, regardless of a victim's wishes — that's why criminal actions are captioned the People v. Someone or the U nited States of America v. Someone Else. But while pursuing a prosecution despite the express wishes of the alleged victim is rare in the average case, in domestic violence cases it's commonplace.

Domestic cases are emotionally complex — far more so than most criminal cases. In the last decade or so, mandatory arrest policies — designed to eliminate police discretion in domestic incidents — have dragged into the system a large number of cases that might, in an earlier age, have died on the doorstep. As a result, the system is deluged with cases in which the supposed victims either don't consider themselves victims or want nothing to do with the prosecution of their alleged abusers. Even in cases alleging serious abuse, the nuances of the intimate relationship between the parties and the brutality of the system often make complainants who start out cooperative ultimately wish the whole case would just go away. As a consequence, domestic violence cases, more often than any others, go to trial with unwilling or unavailable witnesses. Almost every day in courts around the country, prosecutors reach into their bag of tricks in an attempt to wheedle, cajole, or intimidate reluctant complainants in such cases into testifying against their current or former intimate partners.

And when wheedling, cajoling, or intimidation doesn't work, prosecutors are left with a difficult choice: They can try to force a complainant to testify by securing what is known as a material witness order — essentially an arrest warrant — or they can try to proceed without the witness. Though not unheard of, dragging the alleged victim into court in handcuffs and forcing her to testify is generally considered unseemly. It is also often counterproductive, since a witness hellbent on avoiding testifying will rarely provide the kind of performance prosecutors can rely on for a conviction.

Because of the reluctance to force resistant complainants to testify, in case after case, in courtrooms around the country, prosecutors have been left to try to prove their cases using a paper trail — a call to 911, a criminal complaint signed the day after the charges, or a domestic incident report signed the night of the arrest. Judges, especially those trained to be “especially sensitive” to the issues in domestic violence cases, almost invariably find these papers reliable and admit them into evidence, facilitating an entire prosecution in which the defendant never gets to ask the accuser a single question. This is what's termed, in a rather Orwellian turn of phrase, an “evidence-based prosecution,” and it is precisely this sort of prosecution that the Supreme Court has just shut down with the 9-0 decision in Crawford.

In a dense opinion studded with historical references, Justice Scalia held that the Sixth Amendment's guarantee of the right of an accused to “be confronted with the witnesses against him” meant just that — prosecutors who want to use testimonial statements made by unavailable witnesses who haven't yet been subjected to cross-examination, quite simply, can't.

For nearly a quarter century, prosecutors have capitalized on the old rule — articulated 24 years ago in Ohio v. Roberts — that a statement from an unavailable witness can still be used if a judge found other indicia of reliability. This left the majority of the case in the judge's hands. As Scalia put it,

“Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.”

Indeed, in one of the most acerbic sections of the decision, Scalia dismisses the Roberts rule, calling it “amorphous,” “subjective,” and “unpredictable.” As he notes,

“Some courts wind up attaching the same significance to opposite facts. For example the Colorado Supreme Court held a statement more reliable because its inculpation of the defendant was 'detailed'... while the Fourth Circuit found a statement more reliable because the portion implicating another was 'fleeting.' “

The problem with such vague standards, as Scalia candidly observes, is that they are “manipulable.”

What Scalia was too polite to say, but what most veteran criminal lawyers already know — and what most first-year law students learn — is that in the criminal justice system, such flexible, subjective “standards” regularly devolve into purely political decisions. In the context of domestic violence court, that means that judges such as Kiesel and Sussman will regularly admit the calls, complaints, and incident reports, preferring to find indicia of reliability rather than force a prosecutor into the Hobson's choice of a material witness order or a dismissal.

The Crawford decision, by insisting on the right of an accused to confront the witness, rather than just a tape recording or police report, wipes away a judge's ability to admit any of this evidence without the actual witness being subject to cross-examination. As a consequence, prosecutors unwilling to arrest and jail their own witnesses on material witness orders have lost one of the most powerful weapons in their arsenal — the fact that, at least until Crawford, they often didn't need a victim's testimony to make a case.

Crawford was never styled as a populist opinion. On the contrary, Scalia seems to profess a certain disdain for what he describes as “run of the mill assault cases,” explaining that the clear rule he annunciates is mostly necessary to insulate the accused in the great state trials involving politically charged issues — those of, say, Sir Walter Raleigh or Jose Padilla. But as he fashions a new bright-line rule for the big-ticket cases, Scalia either ignores or forgets the sad daily truth of local domestic violence courtrooms: that ideologically driven judicial decision-making is alive and well even in run of the mill assault cases.

Whether he knew it or not, Scalia has, in essence, radically shifted the balance of power from prosecutors to reluctant complainants, giving alleged victims more control over the cases of their own victimization and greater freedom from the paternalistic philosophy of prosecution that the Roberts rule enabled. So from now on, when the complainant in a domestic violence case insists she's not coming to court and just wants to drop the charges, I'll just smile as Judge Kiesel says, “Case dismissed.”

About the Author

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David Feige was a public defender in the South Bronx for more than a decade and was a Soros media fellow. He is the author of Indefensible: One Lawyer's Journey Into The Inferno of American Justice.

With the contrary and perverse illogic that permeates our courts today, on June 20, 2006, the Supreme Court ruled in Davis v. Washington that 911 tapes could be introduced as evidence in DV cases and innocence is no excuse.

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