X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
While domestic violence courts have become fixtures all across the country, New York is taking them a giant step further. They are morphing into integrated courts where criminal, family and matrimonial matters are all heard in the same court by the same judge under a model that will reach all New York communities by 2006. New York had been experimenting for years with increasing the scope of domestic violence courts(DVCs). DVCs are just one of the specialty courts that in the past 20 years have spread like wildflowers across the nation. But they distinguish themselves from other problem-solving courts�such as drug and mental health courts, which seek to heal the law-breaker�because DVCs emphasize victim protection first. That entails separating the victim and the perpetrator, often by iron bars. DVCs are a culmination of the efforts to recognize a plague of violence against women and effectively deal with it. Traditional courts were perceived by some as neutral at best�and hostile at worst�to women’s claims that they had been battered by their spouses. The overwhelming majority of complainants in DVCs are women who allege abuse by their spouses. In DVCs, judges are knowledgeable about the societal context of these kind of crimes, and victims get support from myriad agencies. Everyone seems to like the setup, except some members of the criminal defense bar who perceive it as stacked against their clients. “One problem with having a domestic violence court is that it often becomes an assembly line of justice because of the charged political climate involving these kind of cases,” said Teresa Caffese, chief attorney of the San Francisco Public Defender’s Office, a city in which its DVC hears only misdemeanors. “Because of the explosive nature of domestic violence, there is a tendency to always believe that what the victim has alleged is true,” Caffese said. “No judge wants to take the chance that someone he or she releases is going to kill someone.” The idea behind New York’s commitment to integrated courts is to provide a holistic approach so that a victim is not forced to navigate three court systems. Before these courts came along, a complainant in a criminal court might need to get an order of protection from a family court, a divorce from a matrimonial court and a resolution of child custody issues in one of these civil courts-each with a different judge who would not be privy to the other cases. But some say DVCs have built-in biases. Stephen M. Komie of Chicago’s Komie and Associates, who was a board member of the National Association of Criminal Defense Lawyers, asserted that these courts see “victims” where they ought to see “complainants.” In Chicago, DVCs only handle misdemeanors�more than 1,000 a week-according 1997 statistics, the last available. While Komie said he deals with high-profile clients, he finds himself regularly in Chicago’s DVC court. “It seems there’s no way to exit a divorce without being accused of domestic violence when child custody is an issue,” he said. “It’s shifted from accusing your husband of adultery to sexual abuse and now to domestic violence.” And he’s not any happier with the judges. “We went from the cigar-chomping judges of old who said ‘prove it’ to a group of gender judges who say ‘disprove it.’ “ But educating judges doesn’t make them impartial, assert DVC proponents. Judge Elma A. Bellini, a Monroe County trial judge in Rochester, N.Y., recently took over a court that was once one of the state’s five pilot integrated DVCs. She was a public defender for 10 years, a job in which she represented many clients charged with crimes of domestic violence. “I’m very cognizant of the defendant’s rights and of the mistakes that can be made and I’m aware of victims’ rights,” she said. “I try to balance those interests.” Bellini said she’s conscious that when she hears a bench trial she knows more about a defendant’s and his family’s history than she might otherwise in a traditional court setting. “I pull the jury instructions and I read them to myself as I would have read them to a jury,” she said. “And I weigh the evidence and only the evidence presented at trial-I’m very rigid at that.” Lynn Hecht Schafran, vice president of Legal Momentum, formerly the NOW Legal Defense and Education Fund, asserted that dedicated judges remain impartial, but they’re also savvier. “The victim often comes into court and she’s frazzled and emotional . . . .She may have had to flee her home . . . .She could be disheveled,” Schafran said. “And the batterer is cool and calm and appears to be rational and reasoned in what he tells the court. ‘She fell down the stairs; she burned herself on the stove.’ An unsophisticated judge will perceive him as the credible one.” Judy Kluger, deputy chief administrative judge of New York, is shepherding the expansion of integrated DVCs and had greatly expanded the number of misdemeanor DVCs when she was chief administrative judge of New York City. She dismisses any notion that DVC judges are biased or unfair. And she also realizes the importance of ensuring that the public perceives judges as fair. “Victim advocates�they call themselves what they call themselves�they’re not court employees, they don’t participate in trials,” Kluger said. “The fact that some�not judges�call a complainant a victim doesn’t mean that there’s not a presumption of innocence when it comes to proving the elements of a crime.” But Kluger asserted that these courts are not just about prosecution, but about the safety of the complainant, whether or not a crime can be proved beyond a reasonable doubt. And that begins at the bail hearing, if not before, said Brooklyn felony DVC Judge John M. Levanthal. “In traditional courts, it’s often about efficiency�let’s dispose of the case,” he said. “But in my problem-solving court we protect the procedural rights of the defendant while ensuring the safety of the complainant even after the case is concluded.” If he sets bail, it’s with the condition that the defendant stay away from the accuser. And then he brings the defendant back into court every three weeks to monitor the his conduct. “If she invited him over for dinner and he went, then his next dinner’s going to be in jail,” said Levanthal, who became the first dedicated felony DVC judge in the country in 1996. “I make sure anyone released on bail enter a batterer’s intervention program. That means he’s seen by someone in the system at least four times in three weeks.” If he puts a defendant on probation he brings them back to court every two to three weeks. “And they’re on intensive probation-that means seeing a probation officer twice a week.” If a defendant is sent to prison, the stay-away order gets attached to his jacket and follows the prisoner wherever he goes. “He can’t write her a letter; she can’t visit.” And that jacket follows him when he’s on parole or probation. As a condition of parole, parolees are brought back into his court, which he called a “re-entry court,” and he goes over the conditions of their parole and lets them know, “I’m still watching you. In more than two years, only one person has violated an order of protection,” Levanthal said. He has monthly meetings with parole, corrections, prosecutors, the defense bar and victims’ advocates to work out ways his court can be more effective, he said. Issues discussed might include the mental illness of some defendants who are difficult to place, or ways to develop a better safety plan. “Women are 75% more at risk of getting killed when they leave than when they stay in an abusive situation,” Levanthal said. “A lot of shelters won’t take boys more than 12 years old.” California movement Stanford Law School Professor Deborah Rhode said there’s movement in California toward integrated DVCs. “Enormous progress has been made in trying to get courts to partner with social service agencies. It used to be so fragmented-one court to get the [temporary restraining order], one to get housing, one to get a divorce.” When it comes to distinguishing victims from complainants, she shows no hesitation. “I don’t think a lot hangs on the title. [The defendants] generally wouldn’t be there unless there was some act of assault or abuse,” Rhode asserted. Rhode scoffs at the suggestion that judges are biased in these courts. “Sure, they take into account the social dynamics and constraints that trap women. Some people might call that bias; I view that as taking account of social realities.” Chief Judge Judith S. Kaye is undisputedly the prime mover for problem-solving courts in New York. She said she has observed a greater awareness and a greater sensitivity to domestic violence among her brethren in other states. “And once you have that as a court system,” she asserted, “you have to think of other ways to handle these cases. Simply taking them and disposing of them just escalates the violence. It’s much more efficient and less expensive to monitor someone than it is to prosecute a homicide.” She acknowledges that integrated DVCs put judges in new roles�case manager, administrator and to some extent community leader�very different from that of a passive adjudicator. But she insists that defendants in these courts still receive the full panoply of due process protections. “The key to these courts’ effectiveness is their ability to get more out of the system, not less out of the Bill of Rights,” she said. “What’s the alternative?” she asked rhetorically. “Thousands upon thousands of these cases are in our courts. If we handle them inadequately, tragedies occur�lives are lost.” Post’s e-mail address is [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.