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Criminal Justice

Prosecuting The Batterer Without The Victim's Approval


For years, Angela R. (as she is named in court records) had reported being beaten, attacked, dragged up and down staircases by her hair and even burnt by Victor Santiago, the man to whom she says she's married "by love," and with whom she has a child. She called 911 and visited hospital emergency rooms over and over. Police officers have heard him threaten to kill her after smashing all the furniture in their home. But like countless other victims of intimate violence, when the moment of truth had come -- testifying in open court -- Angela had declined to prosecute and the criminal cases against Santiago were dismissed.

Despite three decades' worth of changes in public awareness and policy since violence against women became a priority of the women's movement, victims still fear prosecuting their husband/boyfriend assailants. A daunting, ongoing problem for the criminal justice system and the women themselves is the victim's unwillingness or inability to participate as a complaining witness after she has called the police, and especially when she is needed to testify at trial.

But in the recent case of People v. Santiago, the Manhattan District Attorney and Acting Supreme Court Justice Jeffrey Atlas took a new approach -- the victims' prior statements about her beatings were allowed to be used as court testimony without her approval.

Angela had testified behind the closed doors of the grand jury, after an assistant district attorney assured her that the accused (Santiago) is never present at this stage. But when it came to the trial stage, when Santiago would be present, Angela refused to testify, and went so far as to threaten that, if forced to testify, she would declare that all the complaints had been fabricated by the police and prosecutor and even by herself. She enumerated her reasons -- she was ashamed to tell her story and be judged by other people; if Santiago were in jail, she could not afford to support their daughter; she loved him and no longer wished to press charges. Without Angela's testimony, Santiago could probably not be convicted.

The district attorney asked the judge for permission to read the grand jury minutes to the trial jury, an unusual criminal procedure, normally possible only if the complaining witness -- Angela R. -- has become "unavailable." Some domestic violence cases have been prosecuted through photos and medical records, but relying on the domestic victim's prior statements would be a new development.

At a pretrial hearing, where witnesses included an expert in battered women's syndrome, Angela R. told Justice Atlas that she and Victor Santiago had been together for "ten beautiful years." Santiago blew kisses to her in the courtroom and insisted that she is the one who hits him, but that he is a "forgiving kind of guy." The judge called much of the couple's testimony "patently incredible," and, in a decision that attorney Dorchen Leidholdt, director of Sanctuary for Families' Center for Battered Women's Legal Services, calls "extraordinary," Justice Atlas concluded that Santiago's violence, threats, chicanery or other acts of misconduct caused Angela R. to become "unavailable." The judge ruled that the prosecutor should be allowed to present to the trial jury her prior statements, including those she had made to the grand jury.

According to Leidholdt, "this decision moves (domestic violence) jurisprudence forward in a really important way," recognizing that domestic violence is of a completely different character than stranger-on-stranger crimes in which there can be a variety of reasons for recanting testimony or declining to proceed for reasons which are not based on fear, threats or witness tampering. "He's been abusing her for years, then calls her 100times from Riker's Island where he's being held. He cannot be allowed to benefit from his own outrageous behavior," she adds.

Brooklyn Law School Professor Elizabeth Schneider, author of BatteredWomen And Feminist Lawmaking (Yale) calls the decision very valuable in the specific facts of this case, but notes that "doing anything that is not what the victim wants is a problem." The issue, Professor Schneider says, is "whether you go with the woman's wishes or the evidence that she is recanting only out of fear or threats." Fear and threats are not the only problem. As Dr. Ann Wolbert Burgess, an expert on battered women's syndrome testified, the abusive male can also be seductive, romantic and exploit the victim's fantasies that everything will be fine.

Whatever the reasons for the recantation, Leidholdt applauds the decision for "not forcing Angela R. to face down the man who has repeatedly brutalized her." However, Carlin Meyer, professor of family law at New York Law School, while acknowledging that "hitters don't hit just one woman," and that therefore society -- not just Angela R. -- needs to be protected, adds, "but the state is never going to protect her."

Professor Meyer believes that "No one walks in the victim's shoes and she should be allowed to assess the potential danger to herself, the benefits and burdens, that flow from going forward with a complaint. The state (and the prosecutors who act for it) can't know if she's better off with her batterer working and not in jail. It's paternalistic for the state to force her to testify and act as if it knows better." She points to the possibility of a "slippery slope" where hearings might be skipped, experts disallowed and the rights of both parties might be jeopardized.

Leidholdt disagrees: "This decision," she says "is truly empowering."

Emily Jane Goodman is a New York State Supreme Court Justice

 

 

Things Go Seriously Wrong: Police Issue Report On Harlem Raid, Lemrick Nelson Gets Off Lightly, Murder Is Up Again. Also: Police Spying


POLICE COMMISSIONER'S 24-PAGE APOLOGIA

In a remarkable break from past practice, Police Commissioner Raymond Kelly has issued a 24-page official report assigning blame in the catastrophic May 16 New York Police Department raid on the apartment of a church-going, 57-year-old woman, Alberta Spruill. At a tense 3:00 p.m. press conference on May 29, Kelly said, "Deficiencies were found in procedures and practices of the overall warrant process. Mistakes were made. We all make mistakes. It's a terrible tragedy that Miss Spruill lost her life." (Excerpts on Kelly's comments, including his defense of warrants and his pledge for reform, can be heard on Newsday's web site.)

The raid could hardly have gone more wrong. With no evidence of wrong-doing beyond the word of a drug-using known criminal, the NYPD secured a no-knock warrant to invade Spruill's apartment. At 6:15 a.m. on May 16, they executed the warrant by breaking down Spruill's apartment door as she was dressing to go to her city job, which she had held for 29 years. Incorrectly anticipating both resistance and a pit bull, the police detonated a flash grenade -- also called a concussion grenade -- which is used to blind and stun. The police realized almost immediately after handcuffing Spruill that the tidy apartment did not fit the informant's description of a messy place divided by a dirty curtain. But the damage was done. Spruill went into cardiac arrest and was pronounced dead at 7:50 a.m. at Harlem Hospital. Her death was ruled a homicide by the medical examiner.

The snarl of police errors, arrogance, and incompetence recorded in Kelly's report is stunning. Almost every decision leading up to the raid seems to have been flawed, sometimes inexcusably. Commanding officers did not confer with one another or share crucial information. Supervisors for the Emergency Service Unit, which led the raid, didn't know that NYPD policy required that flash grenades be approved by a top boss. Although several officers had serious doubt about the reliability of the informant, they did not relay this information to others. No one watched or canvassed Spruill's apartment to see if it seemed a likely household to shelter drugs, guns, and attack dogs. The drug dealer whose cache of drugs and weapons was being sought in the raid had in fact been arrested four days earlier on an assault warrant -- but precinct officers kept this information to themselves.

The brass at police headquarters are ignorant of much of what goes on in the field. The NYPD lacks a central database on informants and their reliability, says Kelly, as well as any central way of assessing the success or failure of executed search warrants, even though several such warrants resulted in disastrous raids on innocent families during the Giuliani administration. Kelly promised he would establish a database to track search warrants to uncover patterns of problematic searches.

"What we're doing," said the commissioner, "is seeing to it the best we can that something like this never happens again." Let's certainly hope so. Yet at a minimum this incident calls into question the reality of what journalist Michael Massing once called "The Blue Revolution," the idea that CompStat plus organizational innovations and changes in police culture had transformed the NYPD into an efficient crime-fighting machine.

90-DAY TRUCE ON CIVIL LIBERTIES OVER

As if to drive even conservative and/or police-friendly New Yorkers into the arms of the New York Civil Liberties Union on the issue of police spying, the NYPD has been asking political protestors such potent questions as "What kind of political sentiments do you hold?" and "What political organizations do you belong to?" as well as "Don't you think it was necessary for us to get involved in World War II?"

In hearings before federal judge Charles Haight in Manhattan, civil liberties groups are asking that the 3-month-old modification to the Handschu Agreement, which since 1985 had restricted police spying, be modified again to forbid such NYPD questioning. Judge Haight was unhappy with the police, saying, "I find this most recent activity troubling." The NYCLU is hopeful that the NYPD's overstepping will encourage Judge Haight to reconsider his February expansion of NYPD surveillance powers.

CROWN HEIGHTS AND NYC'S CYCLES OF CRIME

What are we to make of the Nelson Lemrick debacle? The familiar details remain chilling. On Aug. 19, 1991, a 7-year-old black child, Gavin Cato, was killed (and another child severely injured) in Crown Heights after being struck by a Jewish driver speeding through a red light. Several hours later and several blocks away, then 16-year-old Lemrick Nelson joined a mob of blacks shouting "There's a Jew! Let's get the Jew! Kill the Jew!" while pursuing a 29-year-old rabbinical student, Yankel Rosenbaum. Nelson stabbed Rosenbaum, who later died of internal bleeding in the Kings County Hospital emergency room, where doctors had failed to notice the deep wound. Before he died, Rosenbaum identified Nelson as the assailant who stabbed him.

Yet the practical outcome of the latest of Nelson's three jury Trials -- two federal, one state, all held in Brooklyn -- is that Nelson will spend no more than an additional year in prison. His 1997 conviction on federal civil rights violations in his second trial had resulted in a prison sentence of 19-1/2 years. But a federal appeals court reversed the conviction after concluding that the trial judge had improperly balanced the number of Jews and blacks on the jury. The federal prosecution followed a state trial in 1992 in which Nelson was acquitted by a jury which concluded that he had been framed by a racist police force. Jurors later notoriously celebrated with Nelson and his lawyers.

You might think that by this time everything has been said, but it hasn't been. For one thing, the historical context of these terrible events has been missing. Rosenbaum's 1991 murder occurred at the very end of what had been a period of unusually violent crime in New York, what UCLA historian Erik Monkkonen has called "a rogue tidal wave of violence in the last quarter of the twentieth century." For most of its history, New York City had a far lower crime rate than the nation as a whole -- until 1958, when violent crime started heading up. What we commonly think of as New York's high crime rate is in fact a historical anomaly. Now that crime has been in a downward spiral for 11 years, New Yorkers need to keep it that way.

But Monkkonen argues that in past cycles, once some "lower level of violence had been achieved, the mechanisms for control and the value of peace get forgotten, and a slow rebirth of violence begins." As Lemrick Nelson begins serving his minimal sentence, will it happen that crime will start back up? In other words, just as his crime occurred at the end of a cycle of high violence, will his punishment signal the beginning of a new cycle of serious violence? Already, rape has been steadily rising for months, and murder has also been up.

Nelson himself is part of a disturbing historic trend, the large increase in killings by youngsters in New York. The proportion of killers younger than 18 quickly rose from about nine percent in 1976 to a peak of nearly 16 percent in 1993. When these killers are released, as Nelson will be after a short stint, they have decades of potential violence ahead of them. Thus an overly mild justice system can fuel an upward spiral of crime.

Despite admitting he had stabbed Rosenbaum, Nelson was found not guilty of any charges by the first state jury and not guilty of the most serious charge by the latest federal jury. This leniency, according to Monkkonen's 19th century data, is typical of the tendency of New York juries to give offenders the benefit of the doubt -- a tendency that has often led to justice but in this instance to grave injustice. "In a city filled with bars, rowdiness, and a good deal of physical violence, the all-important coroner's juries often placed themselves in the offender's situation and found the deaths to be accidental," says Monkkonen.

Indeed, although about half of all 19th century murderers in New York were arrested, less than half of these were tried, and only about half of these were convicted. Of the 10.7 percent convicted, three-fourths were sentenced to fewer than 7 years in prison, and a large proportion of these were pardoned. Leniency was the "central element" of the criminal court system.

There is also a historical link between major riots and personal violence, according to Monkkonen's data. Most of the city's serious riots have occurred during times of high violence. He believes, though his data cannot prove, that while some rioters are rationally motivated, many violent individuals simply use the crowd as a mask, becoming more violent in riots. But the real lesson is that a violent culture produces far greater violence during rioting than a less violent culture does.

What this means for the city's future is that keeping violent crime down is the nonnegotiable base of the city's well-being. If violent crime heads up seriously, it will destroy New York. It almost did in our recent memories. And here is the latest bad news: the NYPD's crime statistics show that 215 people were murdered in the five boroughs between January 1 and May 25. This is up from 202 murders in the same period last year.

Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.

NYC'S Blue Laws


 

When the Harlem store Palace Liquors opened one particular day this week, it was a moment that some New Yorkers had wanted for more than three centuries. That is because the day it opened was Sunday. New York liquor stores have never before been allowed to open on Sunday.

But at Sanchez Liquors farther uptown, the shutters remained drawn. “Sunday is the day for resting,” said shopkeeper Francisco Calcaño. “Besides, if the store is closed, that means less liquor on the streets on a Sunday, when people are walking with their families.”

The long-standing ban on Sunday liquor sales was lifted as part of the state legislature’s budget package. The lawmakers reasoned that allowing liquor stores to open on Sunday (even though they will have to choose another day to close each week) will mean more alcohol sales, and more taxes and fees for the state’s coffers.

Some may think that this finally means an end to what are called the blue laws, which have regulated Americans’ moral behavior, especially what people can or cannot do on a Sunday, since the 17th century. Things certainly have changed since the time when even a Sunday baseball game was considered immoral -- and outlawed.

Indeed, the people opposed to allowing liquor to be sold on Sundays seldom even mention the word morality. Governor Pataki vetoed the Sunday liquor sales bill, but it was unlikely that he vetoed the law for moral reasons, especially considering his substitute proposal to raise funds for the city -- installing video slot machines in the city’s off track betting parlors. In any case, the legislature overrode Pataki’s veto.

Still, blue laws have not now faded into the quaint past. There are still laws regulating people’s private lives or freedom of choice – and not only ones that are outdated and unenforced. Some would say that there is at least one new one, promoted by our billionaire bachelor mayor – a prohibition on smoking indoors.

HISTORY OF BLUE LAWS

New York’s law banning liquor sales on Sunday has its origins in Puritan America and even the Roman Empire. “The earliest indication that I was able to uncover about a specific law prohibiting activity on Sunday comes from the Roman emperor Constantine in the year 321,” said David Laband, author of Blue Laws: The History, Economics, and Politics of Sunday Closing Laws. The law reads in part, Laband said, “Let all judges, and all city people, and all tradesmen, rest upon the venerable day of the sun.”

Regulations against Sunday activities were in place in King Charles the Second’s England, as well as in the seventeenth-century Puritan colonies in America. Many reference books say that the laws were called “blue” because they were printed on blue paper, but historians have said that the term is more likely to be derived from the use of the word “blue” to mean “rigidly moral.”

A 1695 colonial New York blue law read, “Be it therefore enacted that there shall be no traveling, servile laboring and working, shooting, fishing, sporting, playing, horseracing, hunting, or frequenting of tippling houses, or the use of any other unlawful exercises or pastimes, by any of the inhabitants or sojourners within this province, or by any of their slaves or servants, on the Lord’s day.” The punishment for any of these offenses was a fine of six shillings or three hours in the stocks.

Other colonies had even stiffer blue laws. If someone broke Virginia’s Sunday restrictions three times, they faced the death penalty. In colonial Boston, Captain John Kemble was arrested and put in stocks for two hours for kissing his wife on the Sunday that he returned home from three years at sea. In 1789, President George Washington was on his way from Connecticut to attend church in New York when he was charged with a blue law violation for unnecessarily walking or riding on Sunday.

In New York, regulations against Sunday activities continued into the next century, as upstate (largely Protestant) Republican lawmakers supported laws that did not make sense for the Jewish and Catholic residents of New York City. The sale of liquor on Sundays was prohibited, and both professional and amateur baseball games were against the law. By the1890s, “there was a long tradition in the New York legislature of enacting legislation to enforce morality in the city, wrote Christopher Finan in Al Smith: The Happy Warrior, his biography of the1920s governor. “The interference of upstate Republicans in both the administration of New York City and the social life of its citizens was deeply resented.”

In 1907, New York City Democrats unsuccessfully introduced two bills in Albany to change the law prohibiting baseball on Sundays. Then-state Assemblyman Al Smith, according to Finan, spoke out against the Sunday ban on the floor of the state legislature, saying that it was better for young men to be playing baseball than “be driven to places where they play “Waltz Me Around Again, Willie.’”

In 1917, the New York Giants and Cincinnatti Reds played the first Sunday major league baseball game at the Polo Grounds. The managers of both teams were arrested for violating the blue laws. Sunday games became legal in New York two years later, but the bar on Sunday liquor sales became an all out ban during prohibition. A new law banning Sunday sales was drafted at the end of the prohibition era, and survived until this month.

LIQUOR STORES ON SUNDAY

The new law doesn’t do away with the state’s blue laws completely. New York’s liquor stores may be able to open on Sundays, but will have to close one other day a week. Mark Anderson, deputy commissioner of the New York State Liquor Authority, said that in order to enforce the one-day-a-week closing, he expects that each store will need to include the day that they will close each week in their license. The law will sunset in five years, so Sunday sales may be banned again. It also limits the number of state liquor licenses to the ones currently in place. Grocery stores are still not allowed to sell wine, and can only sell beer on Sundays after noon.

Liquor store groups have lobbied on both sides of the issue. The Distilled Spirits Council of the United States, which lobbied hard for a lift of the Sunday ban in New York, sponsored a study finding that Sunday openings could bring in an extra $26.7 million a year in taxes and fees for New York State, because Sunday has become a big shopping day. “This is all about choices,” said Lisa Hawkins from the Distilled Spirits Council, who once told Business Review that she should have the right to “have margaritas with my fajitas on Sunday night.”

Small owner-run liquor stores have often campaigned to keep Sunday closings, saying that they don’t have the staff to open every day, but would be forced to open in order to compete with larger stores.

The new law answers some of their concerns, by mandating that all stores close at least one day a week. Francisco Maracallo, the manager of the Washington Heights store Sandy Liquor, is looking forward to the good sales that he thinks Sunday will bring, and hopes to work out a plan with other liquor stores in the neighborhood, so that each one closes on a different day.

Religious groups have said that not only does banning liquor sales on Sunday limit alcohol abuse, it is a way to preserve the &#14



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