The planning and the teaching of the session changed my life. Working with the dedicated people from the Coalition opened my eyes to the very complicated issues concerning abused women. I realized that we, in the criminal justice system, were actually aiding abusers and failing victims. We were failing our judicial responsibility by solely judging the victim. After all, if someone is robbed, we do not or should not focus solely on the behavior of the victim. Why were we, as a society, focusing only on the behavior of the victims in domestic violence cases? Why were we focusing on why she returns? Instead, why weren’t we focused on the behavior of the abuser? Why were we judging violence caused by strangers by a different standard than violence caused by those in an intimate relationship? These questions and more were addressed in the session at the Conference.
Based on the momentum I gained from the Conference, a few of us within the criminal justice system formed the Phoenix Interdisciplinary Taskforce in 1985. The point of the Taskforce was to determine what processes in place were effective, what processes failed victims, and what processes were needed. Phoenix was fortunate in having Detective Charlie Masino volunteer to take all of the domestic violence cases, especially because no officers wanted to waste their time on them. He was the first specialized domestic violence detective tackling an almost insurmountable caseload. Bonnie Black was the executive director for the agency in charge of the batterer intervention services for Phoenix. Anyone convicted of a domestic violence offense was and still is required by law to complete such a program. The final members of the committee were a prosecutor and me.
We knew we did not have much, but knowledge and passion were our motivation. We offered free training for judges, prosecutors, defense counsel, the advocacy community, the community in general, and anyone who would attend our sessions. Sessions were held at any location we could identify. They covered the police investigations, judicial roles, attributes of abusers, inefficiencies in the system, and hopes for the future.
In 1980, restraining orders were replaced in Arizona law with our current protective order statutes. Justices of the peace had always handled all requests for restraining orders prior to that date. Around 1985, our court and other city courts started sharing the judicial responsibility for issuing protective orders. For Phoenix, we were able to design a process for victims to report to one single location within the court and be fast tracked to a judge for their request. Once cases were concluded in our court, if it appeared the facts warranted the filing of a felony as opposed to a misdemeanor in our court, that information was forwarded to Det. Masino for further investigation.
About 1992, Arizona Chief Justice Stanley Feldman was developing a strategic plan. Penny Willrich, a managing attorney at the time with Community Legal Services and director of its Domestic Violence Project, now a retired superior court judge and currently the associate dean of Academic Affairs at Arizona Summit Law School, chaired a committee to which I was appointed. We identified many changes necessary for our protective order and domestic violence laws to become more effective. When our Committee finished its work in 1993, we had developed a fairly comprehensive product. Unfortunately, we were unsuccessful in convincing any entity to take the proposed legislation to a sponsor and usher it through the legislature. It was especially frustrating as we could not identify why no one would help us. Penny and I convinced the Administrative Office of the Courts, the administrative arm of the supreme court, to obtain a legislative sponsor for the legislation on the condition we obtained sponsors from the community. We designed a road show to have many diverse organizations co-sponsor the legislation.
One important aspect of the legislation was any victim could go to any court to seek a protective order. We wanted to stop “victim schlepping”: the process of victims being sent from one court to another with each court saying: You do not reside in this jurisdiction, the defendant does not reside in this jurisdiction, or the event did not occur in this jurisdiction. We found the task of convincing judges to support this concept much easier than convincing law enforcement to serve any order from any court. The organizations representing law enforcement threatened to block the entire legislation containing mandatory service for all protective orders. Our major comprehensive bill was “stuck” at the legislature until a compromise was brokered on service. Unfortunately, the service issues existing in the 1990s still plague Arizona today. City law enforcement agencies do not leave their city limits to serve orders in other cities. Victims many times have to travel to a city where the defendant is located, thereby putting her- or himself in danger just for the order to be served.
A major turning point for Arizona was the sending of a multidisciplinary team to a Confronting the Families national Conference in San Francisco in 1993. Many of us heard for the first time Sarah Buel, a passionate, inspiring domestic violence survivor. Sarah identified the creative processes she instituted in Massachusetts, newly created services for victims, and partnerships with those in the community. She also has a very personal, compelling story about her travels from a domestic violence situation to attending college and eventually Harvard Law School. The thousand people in attendance were captivated by Sarah. She is currently a clinical professor at Arizona State University Sandra Day O’Connor School of Law (yes, Arizona “stole” her from Texas!). There was no one who left that conference without being inspired by her story, energy, and passion. Arizonans in attendance vowed to bring Sarah to Arizona to be the keynote presenter for our 1994 Annual Judicial Conference. We knew others would be infected with her enthusiasm. Her presentation and ideas were heard by all Arizona judges on the first day of the Conference.
About the same time, many judges had begun approaching the supreme court encouraging them to establish a supreme court interdisciplinary committee on domestic violence issues. Chief Justice Feldman signed the order creating the Committee on the Impact of Domestic Violence and the Courts on March 3, 1994,1 just prior to Sarah’s first appearance in Arizona. Prior to CIDVC’s formation, I sent a letter to Chief Justice Feldman on November 2, 1993, outlining many discrepancies in Arizona’s domestic violence law and practices. I had just returned from teaching a statewide conference to judges and was distressed by so many inconsistencies expressed by judges. Some comments attributed to judges in my letter included the following statements made to plaintiffs: “You are only entitled to one order. Why do you stay? Why don’t you leave? This order applies to you even though it is issued against the defendant.” Arizona banned mutual orders in 1991. We had no uniformity in Arizona on processing protective orders. This is one of those scenarios where the familiar adage applies: Be careful about what you complain about or you may be tasked with correcting the situation. After CIDVC was created, the chief justice advised me to address the concerns in my letter as the new chair of CIDVC.
The supreme court formed a subcommittee of CIDVC to develop a protective order Benchbook. It seemed like an impossible task. We had to consider the clerks of the courts with their record-keeping concerns, judges, plaintiffs and defendants, and the laws. Members of the subcommittee came and left throughout the three-year period of drafting. We continuously had versions being circulated throughout the criminal justice partners, receiving feedback and making revisions. Though it took three years, the final result was approved as policy for all Arizona courts on June 4, 1996.2 The Benchbook was elevated to Arizona Rules for Protective Order Procedure (ARPOP) effective January 1, 2008. In 1992, we created mandated protective order forms for the state.3 These were the first mandated legal forms in Arizona law. Though the forms were revised and mandated many times, one critical revision occurred in 1997.4 The revision of the forms complied with national standards to facilitate entry into NCIC (National Crime Information Center, through the Federal Bureau of Investigation). These changes provided for our Arizona protective order forms to be verified and enforced nationwide. Our forms changed again effective December 31, 2007, with the implementation of Project Passport,5 a national initiative to have the first page of every protective order have the same basic information in the same position. Arizona has been very fortunate to have the support of the supreme court behind many of these initiatives. Not only has an Arizona supreme court domestic violence specialist position been funded since the 1990s, but many educational broadcasts and educational materials have been designed and implemented.
In 2003, I was appointed presiding judge for Glendale City Court, leaving my initial judgeship with Phoenix Municipal Court after serving 24 years. Though many enhancements were implemented in Phoenix, the largest municipal court in Arizona, I felt I might be able to have more of an impact in Glendale. Glendale is a much smaller jurisdiction with a population of about 220,000. After forming the Glendale Domestic Violence Taskforce, I wanted to implement a Treatment Court for all convicted domestic violence offenders. Specialty courts with judge-based monitoring of incentives and sanctions had been documented in producing positive results for drug courts, DWI courts, domestic violence courts, etc. My concept was not received warmly. Judges, staff, and prosecutors felt it was a waste of time to have defendants report in person to judges for judges to evaluate their progress on counseling. So began the process of sending judges, court staff, and others to all kinds of specialty courts in Maricopa County Superior Court. In 2004, we started our first treatment court for all those convicted of DUI and domestic violence offenses. Our numbers were large, 50 defendants on a docket, and we constantly revised matrixes for sanctions, preparation time, and court schedules. We were convinced we needed a full-time compliance specialist to review the progress reports and make recommendations to the judges if we were going to continue with the process. We applied for and received a $400,000 Department of Justice (DOJ) Office of Violence Women Grant in 2005. This grant funded a full-time master’s level compliance specialist (we have no supervised probation officers), a court advocate from a nonprofit to assist victims obtaining protective orders, a comprehensive website with domestic violence information in Spanish and English, overtime for the Police Department to actively serve domestic violence warrants, as well as a few other activities.
One of the more important aspects of the grant was a modification we obtained to fund a needs study and partial implementation of a case management system for Glendale’s Prosecutor’s Office. We determined that the Prosecutor’s Office required a case management system. They were still utilizing a basic computer system, not one that met their needs. In 2007, we received another DOJ $400,000 grant. In 2009, we received another $400,000 grant with a new important feature. This grant funded a full-time protective order coordinator in the Glendale Police Department. Glendale initially had three partner cities with the coordinator. Currently, Glendale has a partnership with 10 other cities in the county to coordinate the service of protective orders. If the defendant resides or can be served in a city other than the issuing city, victims are still saddled with the responsibility of going to the other city close to the abuser, calling the local law enforcement agency, and waiting for the agency to retrieve the protective order paperwork from the victim to serve on the defendant for the protective order to become effective. With the grant partnership, victims do not have to place themselves in a position of danger to have the protective order served to be in effect.
In 2012, we received a $300,000 grant. In addition to continued funding for the nonprofit partner court advocate for protective orders, continuing funding for the protective order coordinator, we added a new feature: a high lethality advocate in the Police Department. Signs of strangulation were routinely missed by officers. Many of these cases were not even filed as misdemeanors, much less as felonies. This advocate has focused on strangulation cases and working with victims whose cases may be elevated to felonies based on the facts. Also during this decade in Glendale, the Police Department with the court’s assistance successfully obtained state S.T.O.P. (Services, Training, Officers, and Prosecutors, Violence Against Women Formula Grants to States) funding to present to statewide multidisciplinary conferences. We were emulating in Glendale what we first saw in the early 1990s at the Confronting the Families Conference.
With all the progress we have made, problems remain. We have tried to verify the effectiveness of our treatment court. Though we were able to discern the court was making a difference in success rates and lower recidivism rates for domestic violence offenders, we were not able to quantify the difference treatment court made because of missing data. The minimum battered intervention program for a person convicted of domestic violence in Arizona is 26 weeks. That gives individuals lots of opportunities to fail. Substance abuse programs for DUI offenders can be as short as 16 hours. A few years ago, we moved DUI offenders to a lesser monitoring program. However, we have found domestic violence offenders cannot be reset for a future court date more than 60 days away. The six-month minimum program requires vigilant monitoring on the part of the court and the counseling agency. A piece of paper returned to the court from the counseling agency indicating noncompliance requires that the court take further action to summons a defendant into court. This process is not as effective as requiring the defendant to appear in person in front of the same judge for routine status updates.
The Brady firearm prohibition and the Arizona state firearm prohibitions statute on protective orders have little enforceability. Systems do not exist to ensure defendants have surrendered firearms pursuant to a protective order. All Arizona protective orders meet the standard in Brady6 automatically if the requisite relationship exists and the order is in effect after a hearing in which the defendant had the opportunity to participate. Our forms contain the exact language from Brady.7 In Arizona, we issue only one protective order. Once it is served, it is in effect for one year. Only the ex parte hearing is required unless the defendant requests a hearing to contest the order. This means Arizona has fewer Brady-prohibited possessors than other states. Arizona does have a state statute whereby judges can prohibit the possession of firearms even at the ex parte stage.
General jurisdiction courts experience a higher rate of hearings than limited jurisdiction courts in Arizona: 50 percent compared to 30 percent in limited jurisdiction courts. This means only a portion of those defendants meet the Brady prohibited status. In many states, a temporary order is issued, followed by a second hearing at which another order is issued for a longer period of time. Regardless of whether a defendant is prohibited from possessing firearms under a state statute or the federal Brady prohibition, few firearms are actually seized. Firearm prohibitions in protective orders do not require a judicial finding of possession of firearms. In Arizona, because the bulk of the orders issued never have a hearing meeting Brady standards (a hearing at which the defendant received notice and had the opportunity to participate), there has been little support to elevate the order to a search warrant. I am not suggesting the ex parte order serve as a search warrant to allow law enforcement to seize firearms. However, if firearms are going to continue to be prohibited in protective orders, an effective method to protect victims must be developed.
We continually struggle with cases filed at our misdemeanor level that appear to be of a felony nature. Record checks of prior domestic violence convictions (unlike DUI charges) are not routinely conducted by law enforcement, allowing cases to be initiated as misdemeanors though they qualify for felony charging. County attorneys are still hesitant to file felony aggravated domestic violence charges because they feel they have little jury appeal if the third offense is “merely contacting victim in violation of a protective order” or a mere “slap or hit.” The nation has a long way to go before the zero tolerance of domestic violence offenses reaches the proportion of the zero tolerance for driving under the influence charges.
In addition, criminal history records are often inaccurate. They are created by the taking of fingerprints. Law enforcement, with limited resources, cannot always fingerprint on demand but sets hours for defendants to voluntarily report to be fingerprinted. Courts are unable to forward criminal history dispositions without law enforcement first taking the fingerprints. Many criminal justice agencies have studied this issue and proposed solutions through the years. However, we are still plagued with a system reliant on courts constantly checking and reordering defendants to be fingerprinted. It would be simple to just “book” defendants to accomplish this process, but law enforcement would be overwhelmed. We do all try to work as a team to resolve these issues, but no one solution can always be identified.
This is the system we have: Victims facilitate the service of their protective orders to become effective and we rely on defendants to voluntarily appear to be fingerprinted to create their criminal history record. However, we are still plagued with a system that is reliant on courts constantly checking and reordering defendants to be fingerprints. It would be simple to just book defendants to accomplish this process but law enforcement would be devastated. We do all try to work as a team to resolve these issues.
We still have victims not appearing for trials and criminal cases being dismissed. For years, the expanded use of “excited utterance”8 was common in domestic violence cases relying on the officer testifying as to the victim’s statements. The officer would testify the victim was hysterical, crying, and exhibiting signs of the stress of the incident. Judges would find the victim was still under the stress of the situation and, therefore, had little opportunity to fabricate. The U.S. cases of Giles and Crawford9 effectively halted this practice based on a violation of the Confrontation Clause. However, the forfeiture by wrongdoing doctrine is still in existence. This is an exception to the Sixth Amendment right of criminal defendants to confront the witnesses against them. Supreme Court Justice David Souter stated in Giles:
[T]he element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.10
The prosecutor may be able to prove to the court’s satisfaction the defendant has forfeited his or her right of confrontation by preventing the victim from appearing for trial. Though a case can successfully be prosecuted without a victim being present, law enforcement must be trained to collect the evidence and prosecutors trained on how to use evidence effectively.
There are two words to remember in this article. The first important word is “we.” No one person is responsible for effecting positive changes in the domestic violence arena. One looks around the circle making sure there is representation from the court, prosecutor, defense, police, the advocacy community, and others. It takes the strength created by leveraging all those partners to make effective changes. The second word is “passion.” When one asks those involved in domestic violence issues to identify their most important strength, universally the response will be “passion.” It only takes one passionate person to start the movement. I am the recipient of the passion of many others who have preceded me and feel fortunate to have found my passion as a judge. My charge to all of you is to go forth, find your passion, and make a difference.
Endnotes
1. Comm. on the Impact of Domestic Violence and the Courts, Ariz. Sup. Ct. Admin. Order 94-14 Mar. 3, 1994).
2. Adoption of Policies Regarding Protective Orders in Domestic Violence Cases, Ariz. Sup. Ct. Admin. Order 96-37 (Aug. 6, 1996).
3. Adoption of Forms for Orders of Protection, Ariz. Sup. Ct. Admin. Order 92-6 (Feb. 13, 1996).
4. Adoption of Forms for Protective Orders in Domestic Violence Cases, Ariz. Sup. Ct. Admin. Order 97-29 (July 3, 1997).
5. Adoption of Protective Order Forms, Ariz. Sup. Ct. Admin. Directive 2006-01 (Nov. 21, 2006).
6. A prohibited possessor of a firearm per 18 U.S.C.A. § 922(g)(8) is a person who is subject to a court order that
(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury[.]
7. Arizona forms contain the following preprinted statements:
THE COURT, finding reasonable cause to believe that Defendant may commit an act of domestic violence or has committed an act of domestic violence within the past year (or good cause exists to consider a longer period),
HEREBY ORDERS: NO CRIMES. Defendant shall not commit any crimes, including but not limited to harassment, stalking, or conduct involving the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury, against Plaintiff or Protected Persons.
8. Fed. R. Evid. 803. “Exceptions to the Rule Against Hearsay. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.”
9. Crawford v. Washington, 541 U.S. 36 (2004); Giles v. California, 128 S. Ct. 2678 (2006).
10. Giles, 128 S. Ct. at 2695.