Wednesday, October 8, 2008

Prosecutors should follow through

Larry Stirling is a retired superior court judge. He lives in Ketchum.


I read with growing dismay the Oct. 1 article about felony domestic battery charges' being dismissed against Christopher Pothier. The article culminated in a comment that the government was "extremely reluctant" to move for dismissal of the charges.

Why were they "reluctant"? Is it because the prosecutor believes sincerely that Pothier has indeed battered the unnamed woman and will continue to do so?

If that is the case, the prosecutor should do his or her job and continue the prosecution. It is up to a jury to decide guilt or innocence of Mr. Pothier.

It is quite correct that the prosecutors have the difficult job of assaying the evidence and determining ahead of time whether the available facts will likely top the high hurdle of the "beyond-a-reasonable-doubt" standard.

However, in this case, they appear to have jumped at the first opportunity to abandon the case even though they believe Pothier is guilty.

There is no doubt the prosecutor has a difficult job making cases against citizens. That is as it should be. And there is no doubt that dealing with domestic violence presents prosecutors with unique evidentiary problems such as recantations. But they are certainly not insurmountable.

The scourge of domestic violence runs wide and deep. It is numerically the second most common crime in our society. It could well be the most common if women had more confidence in reporting it.

Your front-page story has no doubt discouraged hundreds of silent victims from ever coming forth to trust the government to protect them.

The fact that the victim "recants" her testimony should not be the determining factor in a domestic violence prosecution. The prosecuting attorney's office should not cease prosecution just because the victim shies away from further battle.

The science is well settled that there is a "battered woman's syndrome." The most obvious indication of being a victim of that syndrome is the fear of going ahead with prosecution. The victim fears and needs the batterer more than she has confidence in anything that the government will do to protect her.

Often the woman is totally dependent on the batterer for income and housing and perhaps the care and feeding of her children. She is also likely very attached and subordinated to the batterer and has acceded to such treatment many times in the past.

The 911 call most likely to end in injury or death of police officers is the domestic disturbance call, usually from concerned neighbors or friends. Precisely because of the syndrome, the victim sides with the batterer against the police who are there to help her.

As a longtime superior court judge in one of the biggest and busiest metropolitan court systems in the nation, I presided over many thousands of domestic violence cases. In all but two of those cases, the women involved were adamantly on the side of the defendant.

If the prosecutors in San Diego had dropped cases because the victims recanted, there would have been very few cases. That only encourages more battering and with the child witnesses, another generation of batterers.

The prosecutors, not the victim, should decide if the case should go forward.

There is always more evidence before law enforcement than just the victim's statement. There is usually a 911 call tape that can be introduced as a prior consistent or inconsistent statement of victims and other witnesses.

There is also the eye-witness testimony of arriving police officers and subsequent investigators.

There is also often physical evidence on the victim that can and should be recorded by photographs taken by the responding patrol officers. Often the phone is ripped out of the wall or the house is disarranged from the struggle.

A recantation itself is evidence. Prior inconsistent statements of the victim, especially if given under oath as they were in this case, are admissible at trial for impeachment.

Whether the victim "recants" or not, if the prosecutor is convinced that a crime has occurred, the victim should be called anyway. If she has declared herself hostile to the continued prosecution, she should be examined (respectfully) as an "adverse witness" subject to impeachment by her own prior inconsistent statements and the other circumstantial evidence. Doubly so if she is called by the defense counsel.

The jury can also be educated by Kelly-Frey experts about battered women's syndrome so they fully understand the context of her recantation and paralyzing fear.

When the jury hears the 911 tape and the other circumstantial evidence, they grasp the context of the recantation and give it the weight it deserves.

It may sound tough to continue the case even though the victim has lost heart for the action. But she is not the only victim. There are children and subsequent women who are going to encounter the batterer.

We equip the government with the tools to go to the aid of victims. The government shouldn't evade its duty just because the victim is afraid. That is the very time that the government should go to her assistance.

How many Nicole Simpson Browns do we need?

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