April 01, 2014

The Trials, Tribulations, and Rewards of Being the First

By John M. Leventhal, Daniel D. Angiolillo, and Matthew J. D’Emic

PART I: The First Felony Domestic Violence Court

The Brooklyn Domestic Violence Court’s list of accomplishments is long. This pilot project, which turned into a national model, has had many successes, including the establishment of the Family Justice Center.

What’s more, its probationers have one-half the violation rate compared to the general probation population.

By John M. Leventhal

PART II: The First Integrated Domestic Violence Court

The “one family/one judge” concept has simplified the court process for litigants, reduced the number of appearances in multiple courts, and addressed conflicting orders of protection.

By Daniel D. Angiolillo

PART III: The First Mental Health Court

The first mental health court in New York has reaped many rewards while dealing with the intricacies of mental illness and its effect on families and relationships.

By Matthew J. D’Emic

Part I: The First Felony Domestic Violence Court

By John M. Leventhal

I am now an appellate judge hearing civil and criminal appeals from courts in 10 counties, namely Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, Rockland, Putnam, Dutchess, and Orange Counties, comprising nearly half of New York State’s population and litigation. Up until January 2008, I had presided for nearly 12 years over the nation’s first felony domestic violence court in Brooklyn and the first domestic violence court of any kind in New York.

Prior to this assignment, I had presided over only one domestic violence case, and, as did many of my cases, it involved murder. Boris killed his in-laws with a hunting knife, duct taped his son to a chair, and attempted to rape his estranged wife, culminating in a hostage situation where Boris unsuccessfully tried to orchestrate his “suicide by police.” This introduction was an eye opener and scared me to become super vigilant so that this situation would not easily arise with any of the cases that I would come to preside over as a judge in a dedicated domestic violence (DV) part.

It is not an easy task to start a “domestic violence court.” In the aftermath of a celebrated New York case and the O.J. Simpson case, not too many judges wanted to sit in a dedicated DV part. Let me tell you why. Galina Komar was killed by her boyfriend in February 1996. As sometimes happens, the boyfriend then committed suicide. The then-governor and mayor of New York called for the impeachment of the judge, who had reduced the bail set on the case for the boyfriend’s previous assault of Ms. Komar. Although a judge cannot be impeached for a discretionary bail determination, he was nonetheless universally criticized in the media. He became a magnet for disapproval and the judicial conduct commission called for his removal, not for the bail decision in this case, but for a finding, after hearings, of an anti-prosecutor and anti-woman bias.

In June 1996, just four months after Ms. Komar’s murder, I was asked to preside over the “Brooklyn Domestic Court,” the first court of this kind in New York and the first felony domestic violence court in the nation. My first trial in the specialized court involved a man who was convicted of attempted murder. He had shot his girlfriend two times in the back of the head while she was asleep. His motive was to prevent her from testifying against him when she refused to drop the pending felony assault charges where he cut her across her upper lip with a jagged tobasco sauce bottle. I wanted to take steps to avoid any violence on my pending cases so incidents like this would not happen.

Trying to Meet the Challenge of Domestic Violence

By tradition, courts are somewhat remote, passive adjudicators. Our role has been to receive a case presented to us, impartially evaluate evidence of past acts, and render judgment. We award damages in civil cases and punishment in criminal cases as the deterrent to future unlawful behavior and then move on to the next case. With more than three million new filings each year in the New York State courts—and growing—we consider it a significant achievement just managing to do that fairly and efficiently. By tradition, courts have not been aggressive problem solvers—that is, courts generally have not taken the lead in reaching out to other institutions to fashion creative solutions for the social-behavioral problems that so often underlie our cases.

Only within the last 20 years have we also come to see that our overflowing dockets include a great deal of repeat business that can perhaps be more effectively handled. Recycling the same human beings, with the same problems, through courts is not good for us, it’s not good for the parties, and it’s surely not good for society.

With domestic violence cases, for example, we know from experience, as well as from the literature, that the parties are likely to be back in court again and again and that the violence typically escalates in intensity, frequency, and duration. The recidivism rate for crimes of violence against intimate partners is enormously greater than for crimes committed against strangers. We know that unlike victims of random attacks, battered women often have compelling reasons—such as fear, economic dependence, family pressures, sometimes even affection—to feel ambivalent about cooperating with the legal process. In a system that often depends on a victim’s willingness to cooperate, this ambivalence frequently results in dismissal of court proceedings.

We know that when they go forward, domestic violence cases are more volatile and harder to prosecute. These characteristics raise the risk that traditional case-processing methods will fail to deter abuse. Without substantial coordination or communication between police, prosecutors, the defense bar, victim advocates, probation officers, corrections personnel, and the courts, for starters, the chances are good that some of these problematic cases will slip between the cracks—and that battering will continue, sometimes with tragic outcomes.

Because of these significant differences, it became clear that the courts needed to design a new structure for domestic violence cases. If victims remain in abusive situations due to fear for their own and their children’s well-being, then why not provide access to services and safety planning that may expand the choices available to them? If domestic violence defendants present a particular risk of future violence, then why not enhance monitoring efforts to deter such actions? If cases slip between the cracks of a fragmented criminal justice system, then why not work to improve coordination and consistency? If domestic violence cases do not fit the traditional paradigm of court cases, then why not change the mold?

We did change the mold. There are now 24 dedicated domestic violence courts throughout New York modeled after the Brooklyn DV court and 38 integrated domestic violence courts with at least one in every judicial district serving over 90 percent of the state’s population. These integrated domestic violence courts process not only all aspects of domestic violence cases, but also any matrimonial or family court issue such as custody, visitation, abuse, or neglect. The concept is one family, one judge.

Are we successful? Over a decade, our probationers in the Brooklyn felony domestic violence court had one-half of the violation rate when compared to the general probation population. We had far fewer dismissals than there have been historically when domestic violence crimes had been processed in conventional courts. Our court fulfilled the traditional role of courts in protecting the constitutional and procedural rights of the defendants, but we also worked as a problem-solving court to ensure the safety of the complainants while the cases were pending and even after the cases were adjudicated through monitoring of probationers and parolees who had to return to court by appointment. This was the predecessor of what then–Attorney General Janet Reno had championed and is now termed a “reentry court.” This is where we deviated from a traditional court. We engaged in intensive judicial supervision and monitoring, returning defendants to court in front of the judge every few weeks even though there may be no hearing to be held on motions or no trial. The trial court reinforced to the defendant the concept that the order of protection was the court’s order and the name of the case was the state (not the wife or girlfriend) versus the defendant. This reinforced the message often said or sometimes unstated that the “court was watching.” We developed a partnership or what some call a coordinated community response. We held scheduled meetings with our partnership—police, prosecutors, the defense bar, victim advocates, probation and parole officers, corrections personnel, the family court, drug and alcohol abuse programs, and elder abuse organizations. We offered regular training programs for the defense bar and prosecutors on issues such as immigration and domestic violence, teen dating violence, same sex violence, elder abuse, etc.

When I first started as a “domestic violence” judge, I had very long wish lists that over the years shortened as some of our goals have been realized, including the establishment of the Family Justice Center. The Family Justice Center brings together all sorts of civil support for battered women such as housing, employment, benefits, immigration, etc., in one site. I am gratified that New York has passed legislation similar to 18 U.S.C. § 3142 and laws in other states where the safety of the complainant in a domestic violence case is an issue, thereby permitting a judge to consider two additional factors in setting conditions of bail: (i) any violation of an order of protection against a family or household member as so defined issued by any court, regardless of whether the order is still in effect, and (ii) the accused’s “history of possession of a firearm.”

Yet as far as we have come, we have so much farther to go and so much more to do. I envision a system where a judge can have access to the victim’s emergency room record at the initial arraignment so that better and more informed bail determinations can be made. We must build more and better shelters where a mother will not face the agonizing choice of leaving her abuser or being separated from her teenage son. We must help develop safety plans for women who want to leave their batterer to empower them and to protect them. When we see a woman who doesn’t leave the man who abuses her, we should not judge her; she may be smarter than we think because a woman is 75 percent more at risk of being killed when leaving an abuser than if she had remained.

The rewards in presiding over a dedicated domestic violence part have been many. As a result of this work, I have gained a better understanding of the law involving the right to counsel; confrontation, in particular in the aftermath of Crawford v. Washington; evidence in general; double jeopardy (punishment in civil family court violations of order of protections and subsequent criminal prosecutions); and the battered woman syndrome as part of the justification defense. This expanded knowledge has made me a better lawyer and, consequently, I like to think, a better judge. As a presiding justice of domestic violence cases, the “up-close” view I sadly endured of the elder abuse component of domestic violence, stood me in good stead when I was given the added assignment of presiding over guardianship cases where often an elderly person was thought to be mentally incapacitated. When I accepted the assignment to preside over the state’s first domestic violence court, little did I know that I would be able to turn (with a lot of help) a pilot project into a national model. This chain of events was probably the most significant factor that influenced the decision of two governors to designate me to serve on one of our state’s intermediate appellate courts. In retrospect, I realize that my life goal of helping people, which brought me to law school’s door in the first place, was fulfilled by my work in the Brooklyn Domestic Violence Court.

Part II: The First Integrated Domestic Violence Court

By Daniel D. Angiolillo

I remember the day as if it were yesterday—St. Patrick’s Day, March 17, 1999, when my law clerk, court clerk, secretary, and I sojourned to Brooklyn, New York, for a field trip to the Kings County Domestic Violence Court, the first domestic violence court in the country, to meet the court’s presiding justices, John Leventhal and Matthew D’Emic. I had recently been designated by my administrative judge to preside over New York State’s first felony/misdemeanor domestic violence court, and what better place to visit, observe, and learn firsthand the rudiments of operating a domestic violence court than conferring with the judicial pioneers in the area of domestic violence. On that day (in addition to enjoying a St. Patrick’s lunch at a spirited local establishment), we had the opportunity to shadow Justice Leventhal, a gracious, caring, compassionate jurist who answered our many questions about the philosophy and purpose of a domestic violence court as well as its operation.

Shortly thereafter, the Westchester County Felony/Misdemeanor Domestic Violence Court had its ceremonial opening and New York Chief Judge Judith Kaye presided. At the official opening, we embraced the overall purpose of the court—to improve the criminal justice system’s response to domestic violence through collaboration of criminal justice and community agencies—and the court’s specific goal—to ensure victim safety and defendant accountability. The chief judge asserted, “this new court will provide victims of domestic violence the special attention and support they so critically need and help to insure an effective response to domestic violence.”

The Westchester County Domestic Violence Court was unique in that both felony and misdemeanor domestic violence cases were prosecuted in one court. The court provided continuous judicial supervision of all domestic violence cases from arraignment through disposition, and post-disposition for offenders sentenced to probation or conditional discharge. The continued oversight of the domestic violence offenders ensured ongoing victim safety and offender accountability to achieve an immediate and comprehensive response to domestic violence. The court collaborated with many agencies, known as partners/stakeholders, including the Department of Probation, batterer’s intervention programs, and victim-oriented organizations. These collaborative efforts along with the efforts of the Westchester County district attorney and the defense bar, including the Westchester County Legal Aid Society, helped make the court a success.

A little over two years later, New York’s first felony/misdemeanor domestic violence court evolved into the state’s first integrated domestic violence court. The planning and implementation of New York’s first integrated domestic violence court took nearly a year. In the fall of 2001, pilot integrated domestic violence courts were opened in Westchester, Rensselaer, and Bronx counties. There was no existing integrated domestic violence court for my staff and I to visit and learn from. We had, however, the assistance of the Center for Court Innovation and the cooperation of the pilot courts in Rensselaer and Bronx counties.

This process took nearly a year because we were changing an institution, the New York State court system. Never before had the court system integrated the trial courts in the state. New York State has a complex trial court system with different courts for family, criminal, and matrimonial cases. With an integrated domestic violence court, the litigants on domestic violence cases no longer appear in two or three different trial courts to address the myriad issues that may arise in the context of domestic violence but rather one court, sometimes referred to as the “one family/one judge” court. No longer do litigants appear in multiple courts before multiple judges to address multiple issues. As the “one judge,” the judge presiding in the integrated domestic violence court, I heard all domestic violence issues involving the “one family.”

The myriad issues that may arise often extend beyond the determination of criminal responsibility. Where the parties have a child or children in common, issues often arise over the custody, visitation, and support of the children, and, in some instances, the preliminary question of paternity. If the parties are married, questions of dissolution of the marriage and equitable distribution of their property may be added to the list of issues that may require judicial resolution.

During the many months of numerous planning and organizational meetings within the court system and with the various partners/stakeholders, we attempted to address the concerns and issues raised by each and every interested party. We were exploring uncharted waters. Therefore, to ensure success it was imperative to have the cooperation and the vested interest of all the partners/stakeholders. Some of the issues raised included, for example, the district attorney’s concern that a criminal case might be “bargained away” in settling a matrimonial case if the two cases were heard together by the court. Some family court practitioners were concerned that the substantive and procedural rules in the Family Court Act might be overlooked if a family court case were merged with the criminal case. Challenges within the court system included computer databases that were not compatible, many administrative obstacles, and at times provincial thinking rather than mindfulness of the overall objective of integration.

The goals of the integrated domestic violence court are not limited to victim safety and offender accountability, but also include the safety and well-being of the parties’ children, the sharing of information between the related cases, and ensuring the most informed decisions and consistent orders of protection.

Ordinarily there was little communication among the judges presiding over related family court, criminal, and matrimonial cases, and rarely would a criminal court judge exchange information with a family court judge about a related domestic violence case and vice versa. As the presiding justice of the integrated domestic violence court, there was no need to contact a family court judge to coordinate an order of protection on a related domestic violence case or share other information because I had both cases in the integrated domestic violence court and all the available pertinent information on the related cases.

From its inception, the benefits of the integrated domestic violence court became strikingly obvious. The “one family/one judge” concept has simplified the court process for litigants, reduced the number of appearances in multiple courts, addressed conflicting orders of protection, and provided an extraordinary amount of information for the court and the attorneys. Examples of the benefits of the court were numerous and occurred on a daily basis. It was an innovative time for the New York State trial courts and especially exciting for me to participate in and witness the benefits of the court and its successes.

Part III: The First Mental Health Court

By Matthew J. D’Emic

Like my co-authors, Justices Angiolillo and Leventhal, I am a judge in a domestic violence court and have been for 15 years. My work in that assignment is not, however, the focus of this article. You see, I came second to the domestic violence court—after Justice Leventhal—and so cannot speak to the gains and ills of “being the first.” My contribution to this article is as the first mental health court judge in New York State.

Domestic violence courts fit into the category of problem-solving courts. Their focus, however, is offender accountability and victim safety. Mental health courts, another form of problem-solving courts, have an entirely different focus. They are therapeutic courts seeking to use the authority of the court for the betterment of those appearing before them. Mental health courts, unlike domestic violence courts, are alternatives to incarceration courts. By using principles of therapeutic jurisprudence, they attempt to achieve two separate but interrelated outcomes—improved psychiatric stability for the offenders and improved public safety—by linking offenders with mental health treatment. Mental health courts work with mental health agencies, families, housing providers, and others to help offenders suffering with a mental illness lead productive, crime-free lives in the community.

Despite the differences between these two varieties of problem-solving courts, my experience in handling cases of intimate partner violence provide invaluable training in the intricacies of mental illness and the effect it has on families and relationships. While no diagnosis causes the violence associated with a felony caseload, nonetheless, mental illness can be a factor.

So, in March 2002, while continuing my domestic violence docket, I became the first mental health court judge in New York.

There are about 200 mental health courts in the United States as of this writing, but only a few are felony courts. The Brooklyn court was planned as a nonviolent felony court for adults, but that soon changed. One of the first cases sent to the court involved a man in his early 20s arrested for two street robberies. He began acting bizarrely in jail and was taken to a hospital for mental observation. It turned out he was in the throes of his first psychotic break. I have learned since then that this is not unusual because the onset of mental illness often occurs between the ages of 16 and 24. Although the charges were violent, the district attorney agreed with the defense attorney that mental health treatment was appropriate and evaluations were done. I am fortunate because the Brooklyn court has a treatment team. A social worker on the team performs a psychosocial evaluation while a consulting psychiatrist conducts a psychiatric one. In the case of this young man, the diagnosis was schizophrenia. A treatment plan was formulated and, as is the practice in my court, a conditional plea entered. The defendant agreed to a felony prison sentence if he failed the mandate and a dismissal of the indictment if he succeeded. He did indeed succeed, he graduated from the court, and his case was dismissed. The last I heard, this young man went on to obtain a master’s degree and has remained in therapy and on medication. I believe this is one good practical example of the theory behind the court. Public safety was safeguarded by treatment overseen in the mental health court. The alternative would have been a prison term followed by the release to the community of a still-young man with a serious, untreated mental illness. It is also an example of the expansive types of cases the court accepts. After 12 years of operation, 17 percent of its cases are misdemeanors and 44 percent of the caseload involves violent felonies, even though, as mentioned, the court was originally only intended to accept nonviolent felonies.

In keeping to the theme of this article, I would have to describe the young man as both a trial and a reward. As one of my first cases in the mental health court, it was a trial that required a lot of learning. The reward of his graduation with parents present speaks for itself.

As for tribulations, there have been plenty of those. One such case involved a middle-aged pharmacist who was addicted to benzodiazepines and suffering from major depressive disorder. Already twice convicted of driving under the influence, he was referred to the mental health court with another, similar charge. As with the prior case, he was evaluated, a treatment plan developed, and a conditional plea taken. Unfortunately, he could not stop his drug use. Upon his arrest for driving while high on drugs, I determined that public safety was too greatly jeopardized and sentence was imposed. This was not the result anyone wanted, and it was made more difficult by his elderly parents’ plea to give him another chance.

Although failure of the defendants and the imposition of sentence are always difficult, it was a foreseeable part of the job. The tribulation I was not prepared for is suicide.

The first of these was a man in his 50s. Mentally ill and in a completely enmeshed dysfunctional relationship with his mother, he wound up assaulting her. Referred to the mental health court and diagnosed with depression, his progress was halting. An extremely emotive person, he cried easily. At almost all of his weekly court appearances, he would sing “It’s Too Late to Turn Back Now” to the courtroom. After several months of court-mandated treatment, we learned that he jumped off the roof of his apartment building. Another younger defendant took an overdose of pills, leaving his mother a note that he could no longer live with mental illness. There are others as well. These terrible tragedies are not something most judges experience. They also leave you wondering what you missed or could have done differently. In the end, however, the only answer is the one Lucille Jackson, the court’s project and clinical director, gave me—that mental illness is often a terminal illness.

There are other dilemmas for certain. On a busy day last December, about 80 defendants and their attorneys in various phases of treatment waited their turn. A gentle buzz associated with this sort of human interaction permeated the courtroom—from a distance, innocent and mundane. Hanukkah and Thanksgiving had passed. Christmas and New Year were on the horizon.

When Malachy’s case was called, he had a good update. Soon the mood changed. Malachy, 18 and unable to return to his grandparents’ home because of an assault charge against him, had been discharged from his homeless shelter. It was a cold New York day and he needed a referral to another shelter. Diagnosed with bipolar disorder and suffering from cerebral palsy, he needed a warm place to stay. Of course, judges and mental health courts are not housing programs and we could not help with this problem. Yet standing before me was a kid who had to spend this day looking for placement in a shelter while other kids were looking at wrapped gifts under a tree. Other kids’ eyes reflected Christmas tree lights while his reflected nothing, not even the people in front of him. His eyes were sunken with anxiety. My fear was that he would sink into that darkest cave—depression.

Malachy will stay in the mental health court and hopefully have his criminal charges dismissed. Although there is not much more a criminal court can do for an accused, it is not a very satisfying answer—not at Christmas.

So there are my examples of trials, tribulations, and rewards of a mental health court judge—first one or not. I would like to end my piece of this article on a much brighter note though. Several years ago, I received a letter from a man whom I placed in drug and mental health treatment over his initial reluctance. His case had been dismissed after successful completion of his mandate several years earlier. The note read:

Dear Judge D’Emic,

A few short years ago I stood before you in shackles, a broken man. I had lost all love for myself and those around me. I saw nothing in myself worth salvaging, but you did. You offered me treatment instead of prison but I refused. You, in your mercy and wisdom, sent me back to Riker’s Island to reconsider. We went through this for several months. You could have washed your hands of me but you didn’t. I relented and went to treatment. For this I owe you my life. I have a home and a family. I am healthy and happy. You, sir, are the definition of humanity.

How’s that for a reward?

The authors dedicate this article to the Hon. Judith S. Kaye, former chief judge of the State of New York, who envisioned and established these problem-solving courts under her tenure and displayed the confidence in each of us to preside over them. We would also like to acknowledge the Center for Court Innovation for aiding each of us in setting up the initial protocols for our respective parts and helping us to fulfill our mission of doing justice for the defendants and complainants.