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Part 2 ~ Advocating for Victims at the District Attorney's Office during the Pre-prosecution Phase

The following are step-by-step questions and guidelines that should help you monitor and evaluate your case as it comes into the district attorney's office and moves through the pre-prosecution phase.

1. Has your case been sent to the DA? What is the status of your case in the DA process?

Pick up the phone, call the DA's office, and ask. Getting information about the status of a case at the DA's office is easy. Once the case enters the DA's office, information on the case status is on the public record and usually kept current on a daily basis. The DA front desk person generally has a computer in front of the them and can answer basic case status questions for anyone who calls, whether they're connected to the case or not. (The one bit of case information that will not be given out is the name and other personal information of the case victim.)

Don't ever be shy about calling and asking for any and all the information in the questions listed below. This is all public information, and your taxes pay these people to make this information available to you.

Before calling the DA's office, be sure and have as much case identifying information in front of you as possible. In addition to needing the suspect's full name and the correct spelling of the suspect's name, you also usually need the suspect's date of birth. You should also have at hand any other case identifying information you may have, such as the offense date or arrest date, the arresting police agency, the police case number, etc. If you don't have this information, ask the front desk person for that information, too, in addition to asking the questions in the list that follows.

Basic Case Status Questions:

* Has the case been logged into the DA's office? (In other words, has the DA officially received the police report from the police?)
* What's the DA office case number? (Cases are usually assigned a new number, a DA case number, when they're logged into the DA's office.)
* To which deputy district attorney has the case been assigned? (Cases often move from one attorney to another in the course of the case, so you may have to update this information more than once as the case proceeds.)
* Is the suspect in custody? What is the bail set at?
* Has the DA yet made any decision on the case?
* What decision has the DA made? Has the DA, a) rejected the case, b) filed charges in the case, or c) sent the case back to police for further investigation?
* What charges were filed? For each and every charge always ask for and write down:
         The penal code section number, (eg., PC 273.5)
         The crime category name, (eg., domestic violence)
         The number of counts, (eg., one count)
         and Whether the charge is a felony or misdemeanor. (eg. misdemeanor)
* What is the date, time, and courtroom of the next court appearance on the case?
* What is the purpose of that next court hearing? (i.e. arraignment, bail reduction hearing, settlement hearing, preliminary hearing, pre-trial hearing, trial, sentencing, etc.)
* Is there a criminal court protective order in place? What is the termination date of the order, if any? In addition to the victim, are the victim's children covered by the order?  (The victim should get a copy of this order in hand as soon as possible.)

Write it all down! Having this basic case information at hand in writing is invaluable for both victims and advocates. If nothing else, it helps you talk more knowledgeably about your case, and that alone will get officials to treat you and the case more seriously, both inside the criminal justice system and when dealing with any other social services.

In addition to being treated more seriously, this information on case status also provides the basis for your evaluation of whether or not the case is being handled properly.

Generally, there is much more additional information you can obtain about the case from the front desk person, over and above what's listed in the questions above. The computer data bases they're consulting usually contain extensive information on the case, the suspect, and related court proceedings, including such information as detailed minutes of the last court hearing, details of plea agreements, probation conditions, and much more.

But, beware! Front desk people vary greatly in their abilities to access and properly interpret the information they're looking at. So, unless you know the person, when talking with front desk persons it's best to stick to the more fundamental questions listed above. Then get the more in-depth information from the attorney assigned to the case, from an experienced victim advocate assigned to the DA's office, or by looking it up yourself in the courthouse records department.

NOTE 1: If you are told by the DA's office that the case hasn't yet been logged in, but police have told you that the case has been sent up to the DA, you'll need to check further into what's wrong. There shouldn't be any more than a 24 hour delay in the transition, since police reports are generally sent daily to the DA by a special courier. Furthermore, cases are usually logged into the DA computer as soon as they arrive at the DA's office. Unfortunately, there are some police who will tell you the case has been sent to the DA when it's simply not true. Some do this as a way of brushing you off.

NOTE 2: If police have arrested a suspect, and the suspect is in custody, there's time pressure on the police to get the report to the DA's office quickly. And there's time pressure on the DA to make the all-important charging decisions on the case. This is because any suspect who is in custody has a right to appear before a judge and be informed of the charges filed against him within 48 hours (in California) (not counting days when the courts are closed). (The time frame may vary slightly in other states.) This suspect appearance before the judge to be informed of the charges is called the arraignment. If this arraignment doesn't happen within 48 hours of arrest, then the jail must set the suspect free. 

This means that if the suspect is in custody, the DA must review the police report and decide which, if any, charges to file well within the 48 hour period, or the suspect will be set free. 

NOTE 3:   If a suspect is released from jail because police failed to get the report to the DA on time, or because the DA failed to review the case on time, this doesn't necessarily mean this is the end of the case. The police can always re-arrest and the time frame starts over. However, the unexpected release of a suspect from jail because the DA has failed to meet the deadline for filing charges is always an especially dangerous time both for the victim as well as for the community. It can also be an indication of sloppy handling of the case by either the police who arrested without sufficient evidence, or by the DA who didn't review the case on time. Or it may simply be that, in fact, there wasn't sufficient evidence and it is no one's fault. Whatever the cause, it's not time to give up on the case. Talk to the DA and the investigating officer as soon as possible to determine what went wrong.

NOTE 4: When a suspect bails out of jail before the arraignment, the 48 hour time pressure on the DA to decide on charges is lifted. When the suspect bails out, he will be given a court date within the next couple weeks for the arraignment. Sometimes in these cases, a defendant's lawyer can get the arraignment date postponed again and again. One way to prevent this kind of delay is for the victim and advocate to get in contact with the district attorney assigned to the case as early as possible to make sure the attorney knows you want the case to move forward.

2. Make contact as early as possible with the attorney assigned to your case. Stay in communication with the attorney throughout the case.

Once police complete their investigation and send their report to the District Attorney's Office, many women wait passively to hear from the DA assigned to their case. Sometimes weeks go by without communication only because women aren't quite sure how it's all supposed to work. But key decisions about the case are usually being made within the first couple days after the case arrives at the DA's office. Early and ongoing communication with the district attorney can prevent many problems from occurring in the first place. Also, just knowing that a victim is interested in the case can often bring out the best effort of any attorney.

So it's worth repeating. Make contact with the DA assigned to the case as early as you can. This doesn't necessarily mean you have to speak to the  attorney directly. In fact, since these attorneys are often in court you frequently have to leave voice mail messages. But don't worry. A concise voice mail message can usually accomplish what you need. So unless there is something complex you need to discuss, always be prepared to leave a full content message. Not a rambling message; a full content message, concise and to the point.

This means you should always take a few minutes to prepare before you make these calls. Have a quick written list of the points you want to make and questions you want to ask. Be brief, complete, and to the point. And give full information for the attorney to connect back with you. Leaving a good voice mail message, in itself, has the added benefit of assuring the attorney that he or she will be able to partner effectively with you on the case.

Either the victim or the victim advocate can make these calls. Naturally, there is an advantage for the attorney to hear directly from the victim. On the other hand, an experienced advocate can usually lay out the information much more clearly. It's up to you and the victim. As always, we assume that before you make any call to the attorney, you have carefully informed your client about the process, and talked over her options and wishes.

If the victim decides she wants to make the calls, be sure and help her put together her message. Rambling, emotional messages from victims can unfortunately have the opposite effect of souring the attorney to the case.

Examples of the kind of early message you may want to leave the district attorney on your case:

a) When the victim wants the case prosecuted:

If this is your first early communication with the attorney, here is a typical message you might leave, assuming this is in accordance with your client's wishes:

Identify yourself, the victim, and the case. (If you and the attorney don't already know each other, be sure you give enough specific information to validate your relationship to the case.) Communicate that: the victim wants the case prosecuted. The victim is willing to testify. The victim wants a criminal protective order covering herself and her children. (Don't forget to give full names and ages of the children. The DA can't go into court and get the order to cover the children without that information.) The victim wants the bail raised because she fears the defendant will seek to harm her if he is freed. The victim also believes he will flee to Mexico if he gets out of jail.

Leave full contact information for both yourself and the victim.

Many times just by leaving this kind of basic but essential information on the attorney's voice mail, the attorney will then gone into court and secure all the requests made. This without you ever having to talk directly with the attorney in person. This kind of concise voice mail can be particularly beneficial in the day or two before an arraignment, when any other contact between the attorney and victim would be very unlikely.

Naturally, as the case goes on, the content of your communication will cover a range of other issues, questions, and concerns. But just the fact of keeping the attorney aware that the case victim and advocate are paying attention, and are available and willing to cooperative, is a huge incentive for the attorney to do his or her best.

b) When the victim is uncertain if she wants the case prosecuted:

If you've ever worked with victims of violence against women you're no doubt already familiar with the many fears and anxieties that make some women reluctant to push the case forward. Naturally, it's important to explain to her that ultimately, it's the district attorney, and the district attorney alone, who makes the decision of whether or not to file charges and pursue prosecution. Nonetheless, victim input can significantly influence these decisions. In fact, all too often, as you've probably also experienced, too many district attorneys will grasp at the first possible excuse to keep from working the case. So when you're client is uncertain about going forward with prosecution, it's critical to have a heart to heart discussion with your client, focusing on that issue alone.

When victims are initially uncertain about prosecution, as so many are, often just by providing information and identifying and addressing these fears the victim will decide she wants to go forward.

For example, some women say that they just want the court to order the perpetrator into counseling. What they need to understand is that the criminal court cannot order the perpetrator to do anything (except to show up to court) unless there is first a conviction.

Another thing many women don't understand is that unless the perpetrator is at least charged with the crime, there won't be anything on his public criminal record, despite the arrest. Getting the perpetrator at least officially charged with the crime by the district attorney, even if the victim doesn't want to go beyond that, can be vital to her future safety, her children's future safety, and the safety of other women.

We can't tell you the number of times women come to us in the tragic situation in which her abuser has gotten, or is in the process of getting custody of the kids because there is nothing on the criminal record indicating the abuser's violence. Yes, she has told the family court about the long history of domestic violence, she says, and they don't believe her. Yes, she called the police a few times in the past, she says, but she told them, or she told the district attorney, that she didn't want to file charges. So now it's her word against his in a family court custody battle, a near impossible venue to prove domestic violence on her word alone. If only she had at least allowed the criminal system to get those domestic charges filed and on the record. The family court will nearly always believe the criminal court record, and almost never simply take her word alone.

This unnecessary tragedy occurs over and over and over again. Do everything you can to show your client how a criminal prosecution, or at least a filing of formal criminal charges, can be the best protection she can have against her present, or future loss of custody of her children to the abuser. (See Beware Family Court, What Victims and Advocates Should Know )

Another common source of vacillation is that the woman feels she wants to get back together with the perpetrator.  We usually advise women that if she does want to get back with the perpetrator, holding him accountable for his actions can be the most powerful lesson in prompting him to change. A common variation on this theme is that the perpetrator promises to change if she agrees not to testify. This is clearly not only one more self-serving manipulation by the abuser, it is also a crime. It is a crime to in any way attempt to dissuade someone from testifying in a criminal case. No force is necessary, just the verbal attempt to dissuade is a crime. Many times women are so heartbroken and traumatized in these situations, they don't see the manipulation unless you take the time to explain it.

c) The victim is adamant that she wants the charges dropped.

If, after giving your client all the information and options, she is still adamant that she wants the charges dropped, we generally ask that the victim make this call to the attorney herself. This is because, even though we see our job as her advocate to do only what she asks, we tell her we cannot take action that we believe will be detrimental to her safety.

Before the victim calls the DA to say that she wants the charges dropped, always advise the women that, at the very least, she shouldn't give false statements to the DA about what occurred or didn't occur. Explain that any statements she makes that contradicts her earlier statements or contradicts the evidence, can seriously hurt her credibility in the future.

d) Always remember, the district attorney is not the victim's attorney. This is a good point to remind you that the district attorney is not the victim's attorney. There is no client/attorney confidentiality between a crime victim and the district attorney. In fact, if the case is charged, and if the victim has ever said anything to the district attorney that detracts or points away from the defendant's guilt, the district attorney is obligated under law to turn that information over to the defense as 'exculpatory evidence'. Also, be aware that many so called 'victim advocates' that work for the district attorney do not abide by, or are not covered by, standard victim/advocate privilege. Anything you or the victim may say to anyone in the district attorney's office which detracts from the defendant's culpability will likely be turned over to the defense.

This is another reason it's important to think ahead, educate your client well, and prepare a couple notes for exactly what you want to communicate with the district attorney before you or the victim pick up the phone to make the call.

NOTE: When to meet with the District Attorney in person. It's appropriate at any point in the process to ask for a meeting with the case attorney whenever you feel things can be better communicated or resolved in person. This includes meeting the attorney assigned to handling your case, as well it applies to meeting with the attorney's supervisor, or meeting the head district attorney, especially when you haven't been able to resolve a problem with the case attorney.
(For discussion of how to prepare for these meetings see Face to Face Meetings with Authorities)

It is also important for the victim and case attorney to always meet in person before the victim testifies. These meetings are covered in Part 3 of this text

3. Is the district attorney's decision on your case appropriate given the facts and circumstances of the case? And given women's right to equal justice and protection?

A. When the district attorney hasn't yet made any decision about whether to file charges on the case, or to reject the case for prosecution. 

Once the police report has been logged into the district attorney's office, there are times when a lack of a decision by the DA is within an appropriate time span. There are also times when a lack of a decision is cause for alarm, as it may indicate that the attorney is dragging his or her feet out of laziness, or worse yet, is purposely withholding action on the case in hopes the victim and the case will go away. In any situation, communicating with the attorney assigned to the case as early as possible, as discussed in the previous section, is a first step in determining whether or not a case is being allowed to go dormant or not. Whenever an attorney hasn't yet made a decision on the case, ask when that will happen. And ask why it hasn't happened yet.

Whatever the attorney's response to your questions, you still need to come to your own evaluation of whether or not you think you're getting straight answers. In general, if you think about it, there usually is no good reason for any case to sit in the district attorney's office more than a couple days before the attorney makes some kind of a decision on the case. The attorney should read the case as soon as possible after it comes into the office. And once having read the case, there's little reason not to make an immediate decision; whether to file the case, reject it, or send the case back for more investigation.

When any case is sitting around without a decision for more than a few days, you and the victim need to start asking questions. Justice delayed is justice denied. Any case that drags on at any point without action has a tendency to go stale and dangerous at the same time. Tensions between the victim and perpetrator, and within their social environment inevitably escalate without the remedy of justice. Victims feel increasingly demoralized as time drags on. Officials shift their interest to new cases, and advocates do too. Keep your case alive and moving. When a case first moves into the district attorney's office, it's a time to be particularly watchful the case doesn't get bogged down.

Here are the three main time frames that the district attorney has for deciding whether or not to file charges:

* If the suspect is in custody, the district attorney in California has 48 hours (not counting weekends) to file charges or the suspect will be set free. Sometimes the DA will fail to make a decision within this time frame for the legitimate reason that he or she sees the need to strengthen the case with more investigation before filing charges. If that's the case, however, the district attorney will usually make an on-the-record decision to send the case back to police for more investigation. The one other option the district attorney has in this circumstance is to assign a district attorney investigator to do follow up investigation. That decision, however, often does not get formally recorded. The bottom line is that whenever a district attorney fails to take action within a couple days on an in-custody case, you need to find out why. Remember, also, that whether a defendant is released because of failure to make a decision or because the case was rejected by the district attorney, these cases can often be revived and reinstated. Don't give up on a case just because the suspect has been released without charges having been filed!

* If the suspect is out of custody, either on bail or on his own recognizance, and has been cited to appear in court on a specific date, the district attorney has until that date to file charges. One thing to watch out for here is the situation in which suspect hires a defense attorney. The defense attorney may then begin to negotiate behind the scene with the district attorney to keep pushing back the date of the arraignment. This can go on and on, postponing one date after another, until the victim is exhausted by the wait, everyone loses interest, and the case fades into forever. In most such situations, the district attorney has passively and purposely allowed this to happen by simply failing to put up a fight in court when the defense asks for yet another postponement. If you confront the district attorney on this, you'll often hear the district attorney start parroting the defense excuses to you.

If this is happening in your case, you need to put a stop to it. Remember, it's the district attorney's job to go into court and fight for the case to heard in a timely manner. In California and in many other states, once charges are filed, the law (PC 1048) requires that most violence against persons cases be given precedence over other cases, and that they be heard within a given amount of time. The reason these laws were passed is precisely because so many district attorneys were using one or another delay tactic as a way of dumping these cases. Unfortunately, this law does pretain to the time prior to the district attorney making a decision of whether or not to file charges. Nonetheless, it is unacceptable for the district attorney to allow the defense to repeatedly postpone the arraignment, and you have every right to protest vigorously.

* If the suspect is neither in custody nor has a citation to appear, the only time limit on the district attorney in deciding whether or not to file charges is the statute of limitation corresponding to the crime itself. (Most misdemeanors have a statute of limitation of one year. Most violence against persons felonies have a statute of limitation of six years.) Not surprisingly, these cases in which a suspect is neither in custody nor cited to appear are especially vulnerable to a district attorney who would withhold a decision as long as possible in hopes the victim will fade away. Don't let this happen in your case. Don't let even a week go by without pressing the attorney to get moving. This includes going to the attorney's supervisor, and up, if necessary. Justice delayed is justice denied. 

In sum, stay in touch with the district attorney. Don't allow a case to sit dormant in the district attorney's office without a decision. No matter which timeframe the attorney is working under, there really isn't much cause for an attorney not to quickly read the case as soon as it comes into the office, and then to make a decision immediately following the reading. Don't be shy about repeated asking calling and asking the attorney for explanations about why a decision hasn't been made. And don't automatically believe every explanation you're given.

If you're not satisfied with the answers you're getting, don't wait to begin looking for answers elsewhere. The attorney's supervisor is an obvious place to start. Another very good place to seek answers is from the police officer who investigated the case. Many times, as you'll see in the case example that follows a few paragraphs further on, investigating police officers are as frustrated as you are when the cases they've worked on are going stale up at the district attorney's office. These officers often have more restrictions on their ability to confront a district attorney than you do. So, play your cards right, and these investigating officers will often give you information about the case in the hopes you'll use it to fight for the case up at the DA's office. (See case example that follows in the note below.)

NOTE 1: Sexual assault cases are especially vulnerable to being allowed to go stale on a district attorney's desk before a decision is made. In part, this is because sexual assault investigations generally take days or weeks during which time the suspect is not placed under arrest. Even after sexual assault investigations are complete, police often send their completed report to the DA before making the arrest. This is because there are often legal complexities attached to sexual assault evidence, so police may want an attorney review of the case before making an arrest. This unfortunately can create an opportunity for an unethical district attorney to sit on the case for long periods of time without the victim being alerted to concern.

We have known some attorneys who routinely let rape cases pile up in their office and sit in limbo undecided for months. The strategy works, as these attorneys know, because rape victims almost always feel very unsure of themselves. So even if the victim calls the attorney to find out why things aren't moving, the attorney gives her some legal mumbo jumbo reason. The attorney knows that after a couple such calls, most victims will end up feeling like they're making too much of a fuss of themselves. They'll stop calling altogether rather than to protest up the ranks. These attorneys would only get to work on a rape case when a victim or advocate pushed very hard to protest. The rest of the rape cases would just languish in the pile on their desks.

At this point you might be asking yourself, why would a district attorney use this strategy of letting the cases pile up in the office? Wouldn't it be easier to just reject the cases outright and be done with them once and for all? While some may prefer to just reject a case outright, the sad answer to the question is that the shelving tactic is often most effective with cases that are usually full of evidence. The attorney doesn't want to take the chance of outright rejecting these cases because the victims, and even the police, are much more likely to protest.

Here's an example of how this pile-up tactic played out in a case of child sexual assault.

Case Example: The mother of a 12-year-old rape victim came to us saying that the case had been at the DA's office for over three months, and the DA still hadn't made a decision about the case. Added to the obvious alarm raised by the time delay was the description the mother gave of a meeting she had had with the DA early on. At that meeting, she said, the DA had not provided the family with an interpreter, despite the fact the family spoke only limited English. The DA also had not called a victim advocate into the meeting, in fact, had made no attempt to connect the family to a victim advocate at any point. In addition, the family said the detective had treated them well and that he had put a lot of effort into the case. All of this together, and, of course, the fact that the family hadn't heard from the DA in the three months since, made it pretty clear the DA was shelving the case in hopes the victim, the family, and the case would fade away.

What the DA didn't count on was that this family would spend those next three months looking for help. After hearing the mother's story we decided it wouldn't be much use talking to the case attorney. His intentions were obviously malicious. So we decided to call the case detective instead. We figured the detective might also be frustrated about the time lag on the case; frustrated enough, we hoped, that he would give us the kind of information we would need to fight for the case with the DA's boss.

The detective gave us more than we'd hoped for. Not only was there abundant evidence in the case, but the suspect, the detective told us, had made a full confession to raping the 12-year-old girl. Imagine the nerve of this district attorney, knowing the suspect had confessed, and then letting the case sit on his desk for three months without filing charges. We immediately set a meeting with the chief deputy district attorney. Within a day of the meeting, the case was filed and the suspect arrested. In the days to come, we discovered that this same district attorney had a pile of such rape case files sitting on his desk, cases that had neither been rejected nor filed. And for this the attorney was earning over $80,000 a year of public money and operating under oath to provide justice.

NOTE 2: Some District Attorney Offices have 'charging attorneys' whose sole assignment is to review cases that come into the office, make the charging decisions, and then to pass the case on to the appropriate prosecution unit if charges are filed. Other district attorney offices have what's called 'vertical prosecution' of all violence against women cases. Under the 'vertical prosecution' system, the aim is to have the case stay in the hands of the same attorney from the initial review through to the sentencing. Whichever system your county works under, the time frames for decision making are the same, and the same advise applies. Don't let cases sit dormant and grow stale in any attorney's office.  There's no good excuse for having a case sit around without a decision being made about how to handle the case.

B) When the district attorney has reviewed the case and decided to RETURN THE CASE TO POLICE FOR FURTHER INVESTIGATION:

If the district attorney has made a decision to return a case to police for futher investigation, this is usually a good sign. It usually means the district attorney hopes to file charges, but he or she sees gaps in the case investigation that need to be filled in. For example, the attorney may ask police for a more thorough interview of a particular witness, or more follow through on one or another lead. If the district attorney has made this decision to return the case to police, that decision is placed on the public record, and you will be informed of this decision when you ask the district attorney receptionist for case status information.

The main thing to watch out for in this situation is that the case doesn't end up sitting in a pile on the police officer's desk. Some officers much prefer working fresh cases, rather than having to tie up loose ends in old cases. Others may resent the district attorney implication that the officer didn't do a thorough job the first time around, and the officer may sit on the case for that reason. So try to get an idea of what more the attorney is looking for, and watch that the officer isn't taking weeks to do something like simply re-interview a witness.

NOTE: District Attorney Investigators ~ Sometimes when the district attorney wants further investigation, he or she will choose to turn the case over to a district attorney investigator, rather than sending the case back to police. Often this decision does not appear on the public record because it is an internal hand off of the case. If this is what's holding up a decision being made in the case, the attorney in all likelihood will give you that information.

The option of a district attorney to use a DA investigator to investigate, instead of going to police, is useful for you to know about. If you have a case going stale back at the police station at any point you can sometimes solve the problem by asking the district attorney to order the case back and turn it over to one of their own investigators to do the follow up.

C) When the district attorney has reviewed the case and decided to REJECT THE CASE for prosecution.

So often when victims hear that the district attorney has decided to reject their case, the women are completed devastated, and they give up all hope. But just because a district attorney has rejected a case, it is nowhere near time to give up on the case.

It's crucial to explain to your client that district attorneys frequently reject perfectly viable cases. Sometimes they do this with cases that have way more than enough evidence right in the file to get a conviction. Sometimes they do it when the evidence isn't all wrapped up in a neat package in the file, but it's clear that with just a little more work the case would come together. But sexism is alive and kicking in most district attorneys offices, so they just reject the case.

Many, many attorneys simply don't feel like doing violence against women cases. They don't like dealing with victims. Or they believe there are too many domestic violence cases clogging up the courts. Or for one reason or another, they resent having to treat violence against women as crime. Instead of telling victims the truth, the attorneys lie. They tell you or the victim, and their supervisors, "there's not enough evidence" to go forward with the case, hoping the victim will give up and the case will go away.  Or they say, "there are problems with the case". This is very, very common in district attorney offices around the country. Don't give up on any case just because an attorney says, 'there's not enough evidence'. That's always the rationale, whether it's true or not.

If your case has been rejected by the district attorney, it's at this critical juncture that it's so important for you and your client to dig into the case and, as best you can, decide whether or not it's true that there's not enough evidence. Is there enough evidence in the police report? Or is there a real need for more evidence? And, if so, are there obvious leads already in the case that weren't properly pursued? Or is the case truly evidence thin. And if the case report is evidence thin, is this because there really wasn't sufficient evidence? Or is it because the investigating officer didn't bother to properly investigate the case, or didn't bother to document the evidence that was right there? Any and all of these possibilities happen with frightening frequency on a daily basis in DA offices around the country.

Fortunately, determining whether or not there is sufficient evidence to prosecute a case is frequently a matter of common sense. Once you've read the police report, if possible, and talked in-depth with the victim, it's often obvious whether or not the case is viable.

If there were bruises on the victim's face, which match the victim's description of how she was beaten, which matches the ten-year-old daughter's statement to the officer, which matches the neighbor's story of the victim running to his house to make a 911 call, you don't need a law degree to know this case should be prosecuted and should not be rejected. Much of the time it is just that obvious.

So even if you don't have a lot of experience, listen carefully to your client, review the police report, and use your common sense. And don't be afraid to argue for the case if the evidence seems sufficient to you, or if you feel that there is unexplored evidence that can be added to the case.

At the same time, it's critical for advocates to continually fine tune your knowledge of evidence. Evaluating evidence is one of the most valuable skills you can develop. It can save your client's life. Trying to advocate for victims of violence against women without understanding the evidence in the case is like trying to play poker without understanding the cards in your hand.

For a more thorough discussion of evidence in violence against women cases see Monitoring, Uncovering, and Entering Evidence into a case Yourself.)

Once you and your client have put together your ideas on why you think this case should go forward, give the attorney a call, or better yet, put together a meeting with the three of you. Listen to the attorney's reasoning. Then try to persuade the attorney to file the case, or to send the case for more investigation. Sometimes, this kind of intelligent discussion is all it takes to get the attorney to change his or her mind. If at first you don't succeed, it's still not time to give up. You may need to go to the attorney's supervisor, or higher up, or back to the investigating officer, or even launch a protest in the community.

For more discussion on applying more pressure, see Strategies for Correcting Inadequate Criminal Justice Response)

D. When the district attorney has reviewed the case and has decided to FILE CRIMINAL CHARGES against the defendant. The main thing you need to consider once charges have been filed is whether or not the district attorney has filed the appropriate charges. The most common problem that occurs at this point in violence against women cases is that the district attorney undercharges the case.

Nonetheless, just the fact that the district attorney has filed any charges at all is a good start and a good indication that at least the attorney intends to seek a conviction in the case.

The filing of charges is also a significant judicial landmark in any criminal case, and, by itself, is immensely helpful to victims. No matter what happens next, whether the defendant is ultimately convicted on the charges or not, the fact that he was charged with the crime will remain a permanent part of his record, a record that is open and available to anyone in the public. Even if the defendant in your case is not convicted, the public will know, and the victim will be able to prove, that a district attorney review of evidence concluded that there was sufficient evidence for the state to formally accuse the defendant of the crime.

This is not the 'proof beyond a reasonable doubt' required for a conviction. But it is proof that the case has risen to a sufficient level of evidence that the accusation will remain permanently on the defendant's criminal record. This record of the formal filing of charges will usually be sufficient for a family court judge to make a finding that the defendant is a perpetrator. This is because family court operates on a much lower standard of evidence than criminal court. Family court operates on the 'preponderance of evidence standard', sometimes called the 'more likely than not' standard.

So, if the defendant has been charged with domestic violence in the criminal system, that is usually sufficient for the family court to hold that the defendant is a perpetrator of domestic violence. As such, the formal filing of criminal charges, in and of itself, can be used by victims wherever they may need to prove she was a victim of the defendant's violence, whether in family court, with child protective services, immigration, in housing and property disputes, in school or at work, or for obtaining victim services. Once charges are filed, all victims should be informed how to obtain a printout of this important information for her needs now and in the future.

Also, once the district attorney files charges, the victim becomes a witness to the court case against the defendant. As such, she is now eligible to be covered by a criminal court protective order, a protective order that has many advantages over a family court domestic violence protective order. It's at this point that you or the victim should double check to make sure the attorney knows that the victim wants a criminal court protective order, and then double check again to be sure the attorney obtained the order at the first possible court hearing on the case. For more discussion of criminal court protective orders, see Criminal Protective Orders)

Despite having arrived at this judicial landmark of charges filed, it's still critical that you and the victim evaluate whether or not you believe the case has been properly charged. Undercharging a case can be every bit as dangerous to victims as any other failure of justice. Perpetrators are emboldened when they get no more than a slap on the wrist. They get the message that his violence towards women is no big deal, and the community does too.

In order to determine if the case was appropriately charged, the first thing you need to do is make sure you have the full information on the charges that were filed. Remember! Write down all the charges: the penal code numbers, the crime category corresponding to the code sections, the number of counts for each code section, and whether those counts are felony or misdemeanor charges. Make sure your client has a written copy of this information, too.

Many times the fact that a case is undercharged is obvious, even to someone who has no training or experience. Here are some examples from real cases. In each of these cases, at the time of undercharging, there was sufficient evidence to support the full charging.

* A beating results in a woman having a fractured skull and bruises from head to toe. The district attorney filed the case as a misdemeanor simple assault. The case should have been filed as a felony domestic violence.
* An adult male sexually fondling a child is charged as misdemeanor indecent exposure. It should have been filed as felony child molestation.
* A man beats his wife, threatens to kill her, rapes her, and pulls the phone out of the wall when she tries to call the police. The case is charged as misdemeanor domestic violence. It should have been filed as a felony rape, one count of misdemeanor domestic violence, a felony threat to kill, and a misdemeanor blocking a call to police.
* A man beats his girlfriend while she's holding the baby. The case is charged as misdemeanor domestic violence. It should be charged as one count misdemeanor domestic violence, and one count misdemeanor child endangerment.
* 10 violations of a restraining order were charged as one count of violating a restraining order. It should have been charged as 10 counts of violating a restraining order.
* A man holds up a knife to his girlfriend while he kicks her and threatens to kill her. The case is charged as one count misdemeanor domestic violence. It should be charged as one count felony brandishing a weapon, one count misdemeanor domestic violence, and a felony threat to kill.

Many times it is just that easy to see that the case is undercharged. Other times it takes more knowledge and experience. If you make every case a learning experience, it doesn't take long to fine tune your skill at knowing which charges are appropriate, and which are an unacceptable injustice.

Every time you're not certain how a particular case should be charged:

* Find out as much as you can about the evidence in the case. See Monitor, Uncover, and Enter Evidence into the Case Yourself.
 * Read the Penal Code sections most related to the crimes you believe have been committed,
* Check the recommended charges on the police report, or check the booking charges. If the charges filed are less than the police recommended charges, you need to question why this is so,
* Talk to the investigating officer on the case. (See NOTE 1 below.)
* Ask! Ask! Ask any one of the many professionals in your community for their opinion. Ask someone not connected with the case, someone you trust, and someone who trusts you; a police officer, probation officer, a criminal defense attorney.
* Call a district attorney in another county.

NOTE 1: Getting an opinion from other officials. Getting other officials to give you their opinion on what a district attorney should charge is very helpful and educational. It's also a skill you need to develop. For obvious reasons none of these officials are going to want their name being attached to the opinion and then thrown around the courthouse to come back and bite them. So they have to trust that you know how to handle whatever opinion or information they give you. If you are faultless in protecting your sources, you'll soon develop many of these officials who will take the time to help educate you.

One tactful and very useful approach for getting this kind of help is to try to reduce your question to a specific point of information, rather than asking for a decision on a particular case which then puts the official in much more of a bind. For example, instead of detailing a sexual assault case and then asking if the case should be charged as rape or a felony sexual battery, you're much more likely to get an official to open up if you simply ask, 'in general, what factors determine whether a case should be charged as a rape versus a felony sexual battery'?

E. The District Attorney has reviewed the case and decided to handle the case as a violation of probation.

More comprehensive information on probation/violence against women issues is provided in another part of the handbook. Here we deal only with the very specific situation where a district attorney decides to handle a violence against women crime as a violation of probation. 

When a person is on probation and commits a new criminal offense, the district attorney has the choice of filing the case as a new criminal charge, as a violation of probation, or as both. Unfortunately, in too many of such cases, the district attorney chooses to file the case as a violation of probation only, and fails to file any new criminal charges. This decision is often unjust and frequently poses great danger to the victims. It often results in the absurd outcome that the defendant gets off easier for his second violent offense than he did for his first offense, as you'll see in the example a couple paragraphs down.

Whenever a district attorney decides to treat a crime of violence against women as a simple violation of probation, you should examine the situation carefully. (The same is true when a violence against women case is treated as a violation of parole.  A violation of parole is similar to a violation of probation but with some significant differences. See the NOTE at the end of this section.)

If there is enough evidence to file new criminal charges against the defendant, the district attorney should always do so. Do not let the district attorney file your case as a simple violation of probation, unless a) no crime was committed, or b) there truly is not enough evidence to support a criminal charge.

Here's just one true life story of how this decision can lead directly to the woman's murder.

Example: Jason was convicted of misdemeanor domestic violence against Jenna. The judge sentenced Jason to one year in jail, suspended the sentence, and ordered that Jason be on probation for three years. This is a typical sentencing for a first time misdemeanor domestic violence conviction in California.

While on probation Jason was arrested again for domestic violence against Jenna. This time the police arrested and booked Jason on three domestic violence felonies. There was more than enough evidence in this new case for the district attorney to now file three felony criminal charges. Given that Jason's violence was obviously escalating, and especially that he was escalating while on probation, it was urgent that Jenna's safety be treated seriously, and that Jason be fully held to account.

What happened next is where Jenna's life was treated as a joke. Instead of filing new criminal charges, the district attorney filed the case as a violation of probation. This decision saves the district attorney all the work of having to prove a new criminal case. A violation of probation (VOP) hearing is a much less formal affair than a criminal proceeding, and it requires a much lower standard of proof. After joking around for a few minutes in the VOP hearing, as can be seen in the transcript of this case, the judge let Jason out on bail, and extended his probation by a few months. That was the sum total consequence of Jason's escalating violence against Jenna. Within days, Jason found Jenna and shot her to death.

Unfortunately, this is a true story, and it is not an isolated story.

Here are a couple things that should help you understand why charging domestic or sexual violence solely as a violation of probation is so unjust and dangerous:

** Being on probation means that a person has already been convicted of a crime. They've been sentenced to a jail term. But the judge suspends the jail sentence, and instead, the judge gives the person a 'chance' and allows the person to go free under strict conditions of probation. In other words, being on probation means you are being allowed back into society on a very tight leash with which you can be pulled back to serve out your jail sentence for the slightest infraction.

** While on probation a person can be arrested for the most minimal infraction of the law, or for any violation of the terms of probation. This can be anything from failing to report to their probation officer, to hanging out with the wrong people, to harassing the victim in any way, to committing new crimes.

** Whenever a person is arrested while on probation, whether for a new crime or for simply violating the terms of probation, the person can be (and should be) booked into jail on a 'no-bail hold'. (Remember, a person on probation has already been proven guilty of a prior crime and has been sentenced, so there is no presumption of innocence attached to the prior crime. The jail sentence on the prior crime was suspended, not eliminated. The perpetrator blew the one chance the judge gave him. So he has no right to bail.)

** If a new crime leads to an arrest while on probation, the district attorney can decide to file a new criminal charge corresponding to the new offense, handle the case as a violation of probation, do both, or file no charges. It's at this point that so many district attorneys take the easy way out. Instead of filing a new criminal charge, which would require he or she do the work of a new prosecution in criminal court, they simply file a violation of probation.

** A violation of probation charge is not a criminal charge. Violation of probation hearings are not criminal proceedings. Unlike a criminal proceeding, violation of probation hearings are very informal and non-rigorous. The standard of evidence in a violation of probation hearing is the lowest standard of evidence, the 'preponderance of evidence' standard. Under this standard the prosecutor only needs to show that it's 'more likely than not' that the offense was committed. This is a far cry from the 'beyond a reasonable doubt' standard required for proof in a criminal proceeding. This is the main reason many district attorneys choose to file a violation of probation only, rather than to file a new criminal charge. It saves them a heap of work. But read on to see what this costs in terms of the safety of the victim and the community.

** At the conclusion of a violation of probation hearing, if the defendant has been found to have violated probation, even if that violation was a new criminal offense, the defendant cannot be sentenced to a new jail term - because he has not been convicted of a new crime. To be sure, the judge has the option of remanding the defendant to jail to serve out the sentence that had been previously suspended. But what so often makes matters worse is that even when the violation was an act of violence against women, judges rarely even reinstate the suspended sentence, and the district attorney at these hearings rarely fights back. What is most common is that the judges give the perpetrator a lecture and merely extend the probationary period by a few months.

In addition, no matter how serious the new offense, the perpetrator's criminal record does not indicate the nature of the new criminal offense. The record will only indicate that there has been a violation of probation. It is not uncommon for perpetrators of violence against women to be dangerously escalating their violence, while the record only shows repeated violations of probation. Anyone looking at the public criminal record cannot tell whether the defendant violated probation for jaywalking or for holding a knife to his girlfriend's throat.

** So you can see the terrible injustice that is done. A perpetrator commits a second offense of domestic violence while already on probation for a first offence, and ends up getting a lighter consequence for the second offense.

Not surprisingly the defendant is likely to see it all as a big joke. The second time he beats his wife is treated less seriously than the first time, and it doesn't even show on his record. Amazingly, this sequence can sometimes go on for offense after offense after offense. It's as if in reward for his first conviction for domestic violence, the system now gives him a kind of immunity to keep on committing domestic violence without serious consequence.

In sum, if someone is arrested for a new criminal act while on probation, especially for a crime of violence, the district attorney should charge that person with a new criminal charge (assuming, of course, there is sufficient evidence), as well as handling the case as a violation of probation. If the district attorney files the case solely as a violation of probation, you should protest to get this corrected, for the sake of the victim, the community, and justice.        

NOTE: Violation of Parole. Probation and parole are similar in that a person on probation or a person on parole have both been convicted of a crime. Probation, however, refers to someone who has been convicted (of a misdemeanor or felony) and has been sentenced to the county jail. This usually means a sentence of one year or less. If someone is on parole it generally means that they have been convicted of a felony, been sentenced to prison, served some of that sentence, and then been let out early on the conditions of parole.

If someone commits a new crime while on parole, the district attorney, similar to the probation situation, has the option of filing new criminal charges or of turning the defendant over to the parole agent for a parole hearing similar to a probation hearing. If found guilty of the parole violation, the defendant, at worst, has to fill out the sentence on the original conviction.

Go to: Part 3 ~ Go to Part 3, Advocating for Victims at the District Attorney's Office During the Prosecution Phase