Treatment of domestic violence complainants

In 2 recent cases, judges were disciplined for imposing sanctions on complaining witnesses in domestic violence cases who failed to carry through with the prosecution of their complaints.

Approving a revised consent judgement, the Florida Supreme Court publicly reprimanded a judge for finding the victim in a domestic violence case in contempt when she failed to respond to the prosecution’s subpoena to testify at trial, being discourteous and impatient toward the victim, and creating the appearance of partiality toward the state.  Inquiry Concerning Collins (Florida Supreme Court July 7, 2016).  The Court also ordered the judge to complete an anger management course and attend a domestic violence course.

In a criminal domestic violence case over which the judge presided, the victim failed to respond to the state attorney’s subpoena to testify in the trial against her abuser.  As a result, the state was unable to proceed with the trial and dismissed a charge of dangerous exhibition of a weapon; the defendant accepted a plea to a reduced charge of simple battery.

The judge issued an order to show cause why the victim should not be held in contempt of court.  When the victim appeared, the judge instituted direct criminal contempt proceedings against her even though she was not represented by counsel or advised of her right to present evidence or testimony.

The victim was distraught and apologized for failing to appear, citing anxiety, depression, and a desire to move on from contact with her abuser.  The judge was discourteous and impatient, raising her voice, using sarcasm, speaking harshly, and interrupting the victim.  After pressing the victim about the veracity of her statements to police, the judge rebuked her, declaring, “You disobeyed a court order knowing that this was not going to turn out well for the State.”  When the victim stated that she was “not in a good place,” the judge responded, “and violating a court order did not do anything for you.”  The judge found the victim in contempt and sentenced her to 3 days in jail even though the victim pleaded that she needed to take care of her 1-year-old child.

The judge explained her good faith belief that she was exercising appropriate legal authority but acknowledged that she should have been more patient and used less inflammatory and sarcastic language and a less aggressive tone.  The judge accepted full responsibility and expressed remorse that her intemperate conduct brought unnecessary criticism upon her court and the entire judiciary and could impair the public’s perception of the fairness and impartiality of Florida’s justice system.

Following a hearing, the Kentucky Judicial Conduct Commission reprimanded a judge for ordering a domestic violence complainant jailed after she recanted her testimony.  In re Collins, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission April 22, 2016).

One afternoon, the judge presided over a bond reduction hearing in a case in which the defendant was charged with domestic violence for allegedly assaulting Jasmine Stone.  During the hearing, Stone recanted her allegations against the defendant.  Over the objection of the prosecution, the judge immediately ordered a deputy sheriff to take Stone into custody, directed the prosecutor to charge Stone with making false statements, and set a $10,000 cash bond.

About an hour later, the prosecutor formally asked the judge to release Stone based on information that the defendant had pressured her to recant; the prosecutor also indicated that the prosecution did not intend to proceed against Stone for making false statements.  However, the judge refused to lower the bond or release Stone from custody.  A writ of habeas corpus was filed on Stone’s behalf; the circuit court denied the writ but vacated the bond, and Stone was released from custody later that afternoon.

The Commission found that the judge failed to afford Stone rudimentary due process rights and set bond even though the judge was the complaining witness, noting “bond is to be set by a detached Magistrate, not one who orchestrated the filing of the criminal charge in the first place.”  The judge admitted that she made a mistake but argued it was not made in bad faith because she “could have placed this lady in jail for contempt of Court.”  However, the Commission found “nothing that this witness stated could in any way be considered direct criminal contempt of Court.”

By the Respondent’s own testimony and as seen from the video tape of this encounter, the Respondent acknowledged she did not know what was true and a hearing needed to be conducted with the presence of a police officer who was on the scene in order for the truth to be determined.  If the Respondent needed a hearing in order to determine the truth then in no way could the witness who was questioned by the Court without being advised of her right against self-incrimination and without being afforded counsel be considered to be in direct criminal contempt of the Court or any Order it entered.  The witness may well have committed false swearing, but that does not provide a Court with the ability to punish such a person for direct criminal contempt.

The Respondent should never have directed the Sheriff to take this witness into custody and to charge the witness with a crime.  That is not the role of the Judiciary.  That is the role of the duly elected prosecutorial authorities . . . .

In 2011, pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given to the police.  In re Shelton, Stipulation, agreement, and order of reprimand (Washington State Commission on Judicial Conduct July 8, 2011).  The judge also agreed to attend training on domestic violence within a year.

Very early one morning, the police arrested a defendant on the complaint of C.A. that he had threatened to hit her with a belt.  At approximately 11:00 a.m. on the same day, C.A. went to the police department and, in a new statement in a supplemental police report, indicated that she had lied to the police at the scene because she was afraid of being arrested.

At approximately 1:00 p.m., the judge presided over the defendant’s arraignment.  After preliminary advisements, the defendant indicated his intention to plead guilty.  As the prosecutor submitted the signed agreement and police reports to the judge, the prosecutor directed the judge’s attention to the supplemental police report.  After considering the situation and reviewing the records, the judge found probable cause but declined to accept the defendant’s stipulated plea and waiver of trial and counsel.  Instead, the judge announced he would set the matter over to a pretrial conference so the parties would have the opportunity to consider the supplemental police report.

After hearing this announcement, C.A. asked the judge if she could make a comment.  The judge stated, “No ma’am, you can have a moment in a minute, trust me.”  After a brief pause, the judge directed C.A. to stand and summoned the court bailiff to handcuff her.  The judge explained:

Okay, I’m going to go ahead and give [the defendant] an opportunity to maintain all of his rights, that’s why I’ve not accepted his plea.  I’m going to, at this point in time, find you [C.A.] in contempt of court because you have written a second statement stated, ah, stating you “called the police, they came and I lied and said [the defendant] had threatened me, which is untrue.  I want to recant my statement, I was frightened and afraid I would be arrested.”  I’m gonna find you in contempt of court.  I’m gonna impose a day in jail.  So you’ll be released in the morning.  This gives the City an opportunity to further review the case and if [the defendant] is still in custody on Monday, then I’ll certainly be reviewing his case at pre-trial.  If he’s able to post bail, then he will still be scheduled to come to court on Monday afternoon.  It’s the order of the court.  Thank you, gentleman.

C.A. was taken from the courthouse and booked into the jail; she spent the night in jail and was released from custody the following morning.

In answering the Commission charges, the judge explained that he had reasoned that, given the serious nature of domestic violence and his concerns for preserving the integrity of domestic violence laws, it was necessary to take C.A. into custody to “preserve the order, authority and dignity of the court,” because ignoring her admission that she had lied might imply that the court was not able or willing to take action when false statements impact judicial proceedings.  The judge also explained that he did not provide C.A. an opportunity to speak in mitigation because he was concerned that she might incriminate herself and based on his interpretation of the compelling circumstances exception in the contempt statute.

The agreement stated that C.A.’s conduct did not occur within the courtroom and was not directed at the court or judge and, therefore, did not fall within the definition of contemptuous behavior, that the judge’s decision to jail C.A. overnight was not necessary to preserve order in the court or to protect the authority and dignity of the court, and that the judge failed to comply with the statutory procedural requirements by failing to issue a written order and to provide C.A. an opportunity to speak.  The judge agreed that his reasoning was erroneous and that his prior experience as a prosecutor and judge involved with domestic violence issues caused him to over-analyze the situation.

The agreement noted that the judge’s demeanor was calm and his language was not insulting or offensive.  However, the agreement also noted that his conduct was significantly injurious because jailing C.A. overnight impermissibly violated her liberty interest and right to due process.  The agreement stated:

Although C.A. may have been implicated in the crimes of domestic violence assault and providing a false statement to a public servant, those potential criminal charges were not properly before the court, nor is it within the court’s authority to file criminal charges.  C.A. entered respondent’s courtroom as a purported victim of domestic violence, and was therefore owed a heightened degree of respect and protection by those who administer the criminal justice system, as is codified in Washington Crime Victim’s Bill or Rights.


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