PROMOTING VICTIM EMPOWERMENT OFFENDER ACCOUNTABILITY AND COMMUNITY SAFETY

PROMOTING VICTIM EMPOWERMENT, OFFENDER ACCOUNTABILITY AND COMMUNITY SAFETY – MILWAUKEE’S EVOLVING PRACTICE

MILWAUKEE COUNTY DISTRICT ATTORNEY’S OFFICE The Philosophy Guiding the Domestic Violence Unit’s Polices and Procedures

CHARGING PRACTICE/PHILOSOPHY Expectation of Police Investigation

DANGER TO VICTIM § § 11% of Homicides are Domestic Relationships. Your investigation may save a life.

DV Jury Trials Prosecutors Misd. Felony Case Total Caseload per Prosecutor 2009 2010 2011 33 37 60 11 10 10 2, 198 3, 626 3, 455 200 363 346 2012 86 9 3, 178 353

VICTIM FOCUSED CHARGING • • • Sec. 968. 075(7) Domestic abuse incidents; arrest and prosecution. Sec. 950. 04(1 v) Basic bill of rights for victims and witnesses. Sec. 971. 095 Consultation with and notices to victim.

PROVING THE CASE • • “Can I prove the case beyond a reasonable doubt based upon the evidence in the case and without the participation of the victim? ”. . . anticipating that the victim will recant, minimize the facts, refuse to testify or disappear. ”

STATEMENTS AND HEARSAY EXCEPTIONS • • • Present Sense Impressions. Wis. Stats. § 908. 03(1) Excited Utterances. Wis. Stats. § 908. 03(2) Declaration of Then Existing Mental, Emotional Condition. Wis. Stats. § 908. 03(3) Declarations of Then Existing Physical Condition. Wis. Stats. § 908. 03(3) Statements made for the Purposes of Medical Diagnosis and Treatment. Wis. Stats. § 908. 03(4) 911 Calls.

EXCITED UTTERANCE CHECKLIST ___ Witness has personal knowledge of the declarants’ statement (observation/heard the statement). ___ The facts of the incident support a “startling” event or condition. ___ The statement is made under the stress of the event. ___ The statement relates to the “startling” event or condition. ___ The statement contains all elements of the crime required. OR ___ The statement is incomplete and needs additional evidence to proceed. ___ The victim identified the defendant at the scene of the crime. OR ___ The identity of the defendant must be established through other evidence. Corroborating evidence: ___ 911 Evidence ___ Injury Documentation ___ Photographs ___ Medical Reports/Records ___ Witness Corroboration ___ Statements by Defendant Other evidence: ____________________________________ The Confrontation Clause is raised by the defense. Victim is present in court, but recanting or denies recollection; ___ YES therefore, State will not call victim but is available for the defense. ___ NO State nevertheless cites on record its efforts to locate, subpoena and compel the victim’s testimony at trial. ___ Also see State v. Lenarchick, 74 Wis. 2 d 425 (1976); Gelhaar v. State, 41 Wis. 2 d 230 (1969).

NO PROCESS CASES • • • Create a file and preserve reports, photos, 911 call, etc. If history repeats. . . Sec. 971. 12 Joinder of Crimes; State v. Hall, 103 Wis. 2 d 125 (1981). How you conduct yourself during the investigation will determine whether they call you next time.

SOJOURNER FAMILY PEACE CENTER • • • Victim Advocate Unit in the District Attorney’s Office Community Domestic Abuse Advocacy Program (CDAAP) Sojourner program areas include: A 24 -Hour Crisis Hotline staffed by experienced advocates and trained volunteers The 45 -bed Sojourner Truth House provides a safe, temporary shelter to victims and their children Restraining Order Clinic at the Milwaukee County Courthouse Ongoing case management and advocacy links clients – both adult victims and protective parents of children who have been exposed to abuse Support groups for adult survivors empower victims to develop personal safety plans and make difficult changes to increase their independence from the abuser. Life Skills classes focus on economic empowerment, seeking employment, education, and personal self care The Beyond Abuse Program for offenders Education conducted in schools, businesses, health care and other settings

BEHAVIORS OF DEFENDANTS AFTER CHARGING 1. 2. 3. 4. 5. 6. Custody Blackmail Child Support Threats Protracted Litigation Stalking Immigration Threats Assaults

BEHAVIORS OF DEFENDANTS AFTER CHARGING 1. 2. 3. 4. 5. 6. 7. 8. 9. Defendants will go to great lengths to undermine police investigations and thwart prosecution efforts: Begging victims not to attend court; Threatening victims not to appear in court; ’ Paying victims not to attend court; Dictating to victims, word for work, their “notarized affidavits to recant; ” Asking friends to tell the victim how much the defendant loves the victim; Dictating the lies the victim is to testify to upon appearance in court; Soliciting other people to injure the victim; or Even solicitations to murder the victim.

FORFEITURE BY WRONDOING 1. In response to witness tampering, Doctrine of Forfeiture by Wrongdoing evolved as equitable remedy = if Defendant silences Victim (thru bribery, threats, violence), Then s/he LOSES Right to Object to Victim’s PRIOR STATEMENTS coming in at trial. One who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. Proof by a preponderance of evidence Can use HEARSAY. 2. 3. 4. 5. 6. – – – Giles v. California, 554 U. S. 353 (2008) State v. Jensen, 2007 WI 26 State v. Baldwin, 2010 WI App 162

State v. Baldwin • • “Baldwin and RZ were engaged in a violent relationship that resulted in much police and court involvement. ” (Was RZ violent too? ) “…multiple charges of domestic violence brought against Baldwin in 2005 and 2006 for harming R. Z. Those charges were eventually dismissed without prejudice when R. Z. failed to appear at trial. (emphasis added)

State v. Baldwin • • 03/13/07 Case: R. Z. was 2 mos. pregnant with Baldwin’s child; told police that Baldwin was “yelling and screaming and threatening to kill her” and that he “punched the walls and yelled, “you’re going to fucking get it” and “I’m going to dog walk your ass and blacken your eye. ” R. Z. told police that she was “really scared” because Baldwin “had hit her and threatened her on prior occasions. Responding officer noted that R. Z. “appeared nervous, fearful and was shaking. ” A condition of Baldwin’s bail prohibited him from contacting R. Z. & from committing any new crimes.

State v. Baldwin • • 06/14/07 case: Baldwin charged with aggravated battery and false imprisonment & R. Z. “suffered serious bodily injuries…including, but not necessarily limited to: two black eyes, substantial swelling to the orbital area of each eye and the upper forehead, apparent blood on the surface of her eyes, significant discoloration of the whites of each eye, temporary impairment of her vision, significant pain, bruising, redness and discoloration, various abrasions to the facial area and a substantial goose-egg like swollen bump to her upper forehead above the right eye. ” (5 mos. pregnant) R. Z. then wrote to court saying strangers beat her, she’s bi-polar and lied so she wouldn’t come to court.

State v. Baldwin • • R. Z. failed to appear in court on 6/21/07 & 6/26/07. State obtained a search warrant for R. Z. ’s home. Police found written correspondence in the residence sent to R. Z. from Baldwin while he was at the Milwaukee County Jail. A card from Baldwin, dated 6/20/07…told R. Z. to tell the trial court that she would not come to court: “Call Judge Conen…and tell him about the bipolar situation…tell them you didn’t take your medication that day and shit like this happened before, and you’re not coming to court no matter what…I love you. Everlasting love on my momma. Everything is going to be all right. Papi”

State v. Baldwin • • 1 st count, intimidation of a witness, a felony, alleged Baldwin intimidated R. Z. from appearing and testifying at the 6/21/07 & 6/26/07 preliminary hearing dates. The allegations were based on: the 6/20/07 card from Baldwin to R. Z. found in R. Z. ’s residence; R. Z. ’s 6/20/07 letter to the trial court. + phone calls from Baldwin to R. Z. while he was in jail. Trial court found calls & letters admissible + probable cause to charge Baldwin with intimidating a witness; + bound Baldwin over for trial, rescinded all of his phone, mail and visitation privileges and consolidated all four pending cases for trial.

State v. Baldwin • • • Count 5, disorderly conduct, based on a 1/13/06 incident in which R. Z. told police that she ran outside because Baldwin had threatened her and chased her and she feared for her safety. Once outside, Baldwin pushed R. Z. ’s face into the mud. Pushed and struck R. Z. ’s five year old son when he attempted to intervene.

State v. Baldwin • • • Counts 6 and 7, two misdemeanor counts of intimidating a witness, were based on additional correspondence police recovered during the search of R. Z. ’s residence. Baldwin sent the correspondence to R. Z. in 2005 and 2006 dissuading her from attending and testifying in court in several then-pending domestic violence cases. 8/07, State filed a motion asking court to admit into evidence, under the forfeiture by wrongdoing doctrine, R. Z. ’s statements to the police about what Baldwin did to her + incorporated the records of all four of Baldwin’s pending cases, including…writings recovered from the search of R. Z. ’s home.

State v. Baldwin • • 01/07/08, 1 st day of jury trial, State learned Baldwin purchased & used phone calling cards & had utilized the assistance of thrid parties to call R. Z. from jail at least 12 times with specific instructions to recant & refuse to attend court. “Trial court found that R. Z. ’s statements to the police were admissible under the forfeiture by wrongdoing doctrine…based its ruling on its finding that R. Z. was unavailable for trial and that the State had shown, by a preponderance of the evidence, that Baldwin had “intimidated the State’s witness R. Z. , from attending court to testify again him [Baldwin] at trial. ”

State v. Baldwin • • • On appeal, Baldwin argued that trial court erred in admitting the hearsay under the forfeiture by wrongdoing doctrine because the record fails to support the trial court’s unavailability finding + Wisc. Ct of App agrees with the state that trial court properly found R. Z. unavailable + The record shows that the trial court’s finding of forfeiture by wrongdoing comports with the recently adopted test from the United States Supreme Court in Giles.

State v. Baldwin • • App Ct: Wisconsin has no similar evidentiary rule to FRE 804(b)(6) but in State v. Jensen, 2007 WI 26 Wisc. Supreme Court adopted forfeiture doctrine. STD: Giles held that forfeiture by wrongdoing required that the defendant intended to prevent the witness from testifying. See Giles, 128 S. Ct. 2678, 2684 -86 (2008)

State v. Baldwin • • “Significantly, the [Giles] majority noted that evidence of past abuse or threats was “highly relevant” to the proof of the defendant’s intent to prevent the victim from testifying, especially if there were ongoing proceeding at which the victim would be expected to testify. ” Id. at 2693 App Ct: “Baldwin’s intent was to prevent R. Z. from testifying at trial. ”

State v. Baldwin • • Baldwin says state didn’t meet unavailability. Ct. App: “…we note that the record supports the trial court’s unavailability finding. Wis. Stat. § 908. 04(1)(e) requires the proponent of a witness to secure the witness’s appearance ‘by process or other reasonable means. ’” Williams, 253 Wis. 2 d 99. ¶ 62, 644 N. W. 2 d 919 • • “The proponent must make a ‘good-faith effort’ and exercise ‘due diligence’ to secure the witness’s presence. Id. ” App Ct found State met standard.

ADDITIONAL CRIMINAL CHARGES • • Bail Jumping, contrary to Wis. Stats. § 946. 49. Solicitation to Commit Perjury, contrary to Wis. Stats. §§ 939. 30 and 946. 31. Solicitation to Commit False Swearing, contrary to Wis. Stats. §§ 939. 30 and 946. 32. Intimidation of a Witness or Victim, contrary to Wis. Stats. §§ 940. 42 – 940. 46.

ADDITIONAL CRIMINAL CHARGES 940. 41: (1 r) “Malice” or “maliciously” means an intent to vex, annoy or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.

DEFENSE COUNSEL INTERFERENCE WITH ACCESS TO WITNESSES Guiding Principles: SCR 20: 3. 4 Fairness to opposing party and counsel. A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act; (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

DEFENSE COUNSEL INTERFERENCE WITH ACCESS TO WITNESSES • • • State v. Fosse, 144 Wis. 2 d 700, 424 N. W. 2 d 725 (Ct. App. 1988) In the Matter of Disciplinary Proceedings Against John A. Birdsall, OLR v. John A. Birdsall, 276 Wis. 2 d 385, 689 N. W. 2 d 46 (2004) State v. Richard Thomey, 2012 CM 003021 (DA Case Number 2012 ML 010134) Criminal Contempt of Court State v. James Martz, 2012 CM 005680 (DA Case Number 2012 ML 023592) Criminal Contempt of Court