PAPER PROTECTION: Delay is 'ultimate weapon' in batterer defense

2013-03-03T00:00:00Z 2013-03-08T13:06:02Z PAPER PROTECTION: Delay is 'ultimate weapon' in batterer defenseMonte Martin
March 03, 2013 12:00 am  • 

If delay is "the ultimate tactic" of defense attorneys in litigating domestic battery cases, then many alleged offenders in Lake County appear to be outflanking the courts, a state victim's advocate says.

Those delays — and a high number of domestic assault cases that are either dismissed up front or thrown out later — empower offenders to continue the cycle of abuse, said Kerry Hyatt Blomquist, legal director of the Indiana Coalition Against Domestic Violence.

Of the 1,426 domestic battery cases filed in the county from 2010 to 2012, 900 cases reached some form of conclusion, a Times investigation shows.

Of those 900 cases, 649, or 72 percent, were either dismissed outright or deferred, meaning defendants were given the ability to have the charges dismissed at a later date. That included 452 dismissals and 197 deferred cases.

Another 250 cases resulted in criminal convictions.

The rest — 526 filings — remain open cases, still winding their way through the court, according to Lake County Data Processing Department records.

Those numbers do not reflect the full extent of the problem in Gary, which does not participate in the county's data system.

The figures reveal 27.8 percent of batterers have pleaded to or been convicted of a misdemeanor and another 72 percent effectively have had the slate wiped clean on their criminal record.

Blomquist said the Lake County case deferrals, which totaled 197, do not represent "best practices."

Deferrals or diversions of cases ultimately allow the charges to be dismissed if defendants meet certain parameters set by the court, such as counseling. However, if they fail to meet the court's criteria, defendants then can be sentenced to jail or prison time.

"Prosecutors who choose to defer (in domestic battery cases) aren't using the law as it was intended. It's more for traffic offenses," Blomquist said.


Deferring justice?

Lake County Prosecutor Bernard Carter and his assistant, Peter Villarreal, defended the practice of deferring some domestic assault cases. In deferrals, an offender must meet court directives or face stiffer penalties.

This gives prosecutors something "to hold over" offenders' heads, the prosecutors said.

Blomquist argues that affording offenders the ability to wipe the slate clean diminishes the chances of imposing enhanced penalties in future actions. Since the crime is all about power and control, a repeat offense and arrest are pretty much a given, she said.

Complicating the prosecution of such cases is a frequent lack of victims willing to cooperate, Carter said.

A high percentage of victims return later after an initial filing of domestic battery to ask the case be dropped, Carter said.

"It gets diluted if the victim doesn't want to go along and cooperate, and come in and testify, things of that nature," Carter said. "That's when we go to the deferral. Most of our deferrals come about because we have no other choice, and we try to salvage something."

Little wonder why that happens, Blomquist said, because domestic violence is the only crime in which the victim and evidence go home with the perpetrator.

"If the perpetrator is in complete control of the finances, delay is the ultimate tactic, the ultimate weapon. You're literally starving them (the petitioner) out," she said.

Blomquist said the problem is worsened when judges grant delays and continuances in such cases.

The numbers confirm any domestic battery victim seeking swift justice and a speedy resolution in Lake County has come to the wrong place.


Six hearings per case

The 900 domestic battery dispositions over the three-year period of 2010 through 2012 prompted 8,560 hearings, an average of 6.2 court appearances per case. Some had as many as 27, 23 and 22 hearings each, but Carter said the delays aren't coming from his office.

"A continuance does not help the state. It never helps us," Carter said. "It gives an opportunity for our victim to recant or change her mind, or move on or say, 'I don't want nothing to do with it. I've found somebody else.' It gives so many different options where we might fail at the prosecution of the case."

Carter said none of his deputy prosecutors can continue a case. It has to be a supervisory decision based on evidence. If there is a defense move for a continuance, prosecutors are instructed to object at every hearing, Carter said.

Carter and his staff are well aware defense attorneys employ the delaying tactic to make even harder the already tough job of proving a domestic battery occurred all.

Carter suspects defense attorneys advise their clients to use that time to talk their victim out of pursuing charges and keep them from pursuing the case.

"If the victim is not willing to cooperate, it makes it very difficult for us as prosecutors to proceed," Carter said.

Blomquist, the sixth woman to be president of the Indianapolis Bar Association in 150 years, said a lack of cooperation from victims shouldn't deter prosecution. To say it does is a cop-out, she said.

The cases are unique, high-maintenance undertakings, she concedes, and are difficult to win, in part because there typically are only two witnesses — the victim and the abuser. Prosecutors have to treat domestic violence as an evidence-based prosecution, not victim-based, she said.

That includes photos, interviews, collecting evidence at the scene and treating the crime scene as if it were a murder with no victim to testify.


No witness, no chance?

The Lake County prosecutor's office has pursued cases without the victim's cooperation, using independent witnesses testifying about battery or intimidation, Carter said.

But such cases are rare. Just as in some murders where there are no reliable witnesses, police seldom submit such domestic assault cases to the prosecutor's office for charges.

"We've tried to proceed to trial without the (domestic battery) victim, and it doesn't work," Villarreal says. "Jurors really do want to see the victim."

There might be no reliable data to measure the success rate of such prosecutions. Even if there were, Blomquist remains skeptical of the numbers.

Statistics "don't represent what is going on out there," she said.

Times Investigative Editor Marc Chase contributed to this report.

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