Some members of the CourtWatch program, which observes domestic violence, sexual assault and protection order cases in Jo Daviess County, have had quite a change of heart since their first quarterly report.
"I think this court is completely dysfunctional," said Vicky Simone, who gave the system mixed praise when the first report was published in February. "I just think that it's like the Keystone Cops up there."
To be fair, little of the CourtWatchers' criticism was actually directed toward police officers, whom they did not observe. The watchers were primarily irate about high dismissal rates, a low number of convictions, and the haphazard way in which hearings were run. In fact, a few law enforcement officers agree that cases they think are solid are sometimes thrown out.
A number that surfaced often during the Court Watch meeting on May 16 was 83 percent-the portion of cases concerning violations of protection orders that were dismissed without making it as far as a plea bargain. Out of the six cases that CourtWatch observed to completion, only one resulted in a penalty: a $100 fine.
Out of four sexual assault cases concluded between March and January, three were dismissed, and the fourth led to a not-guilty verdict through jury trial. If all of the eight cases charged in 2007 and 2008 are included, two convictions and two more recent dismissals are added to the list, though some of those cases may be re-filed.
Domestic battery cases had a somewhat higher prosecution rate. Of the eight cases completed, only two were dismissed, though of the remainder, five of the charges were reduced to simple battery or disorderly conduct. A single case led to a conviction for domestic battery.
The numbers for domestic violence in 2007 were similar. Of the 31 domestic battery cases logged on the court's online records, 38 percent were dismissed, and another 29 percent were pled down to battery or disorderly conduct. Seven cases resulted in jail time, with the average convicted offender sentenced to 69 days in jail, often with a concurrent fine.
Jo Daviess County State's Attorney Terry Kurt agreed to meet with CourtWatch to discuss their concerns on June 2. He is legally barred from discussing the details of ongoing cases on the record, but agreed to talk about general problems with trying domestic violence, sexual assault and order of protection cases.
CourtWatcher Christine Baxter asked the question that seemed to be on everyone's mind. "Why do we dismiss so many of them? Do we just not want them cluttering up the court?"
Getting the evidence
According to Kurt, the problem comes down to a lack of evidence. In sexual assault cases, they may have the word of one person, often times a child, against the testimony of an adult.
With domestic violence, the situation is even more difficult. Victims often decide not to cooperate with prosecutors, either because they still care for their alleged abusers, they are financially dependent on the perpetrator, or they are too intimidated by the prospect of more physical punishment.
"Our main evidence disappears, or isn't as credible as it was when it first walked in the door," Kurt said. "Now the things that are said on the witness stand aren't exactly what they told the police."
Kurt says he is reluctant to press the issue because it may make things worse for the victim. "The worst thing that's going to happen is, the victim's going to go home with that perpetrator, and have to live with them," he added.
The prosecutors often have a written statement from the victim taken at the time of the incident. However, Kurt is hesitant to use them if they contradict the testimony of the victim in court.
"If we get to that point where I'm impeaching my own witness, we don't have a very good case," he said.
Under their current protocol, the police and sheriff's department collect corroborating evidence in every domestic battery case. Officers write down their own impression of the scene, get written statements from both parties involved, and take the statements of any witnesses, including children, or neighbors who may have heard something.
Each officer carries a camera in their squad car, so they can take pictures of victims who have visible signs of abuse, such as black eyes or bloody noses. Galena investigator Lori Huntington thinks this can be the most powerful evidence available.
"If you get a picture of someone bleeding after a big fight, it's hard to say it didn't happen," she said.
They can also photograph the condition of the scene if it looks like there's been a struggle.
"If there's dishes, the house is all torn apart, we can take pictures of that, that something did take place," said Galena Chief of Police Jerry Westemeier.
"Sometimes the phone's torn out of the wall," added Huntington. In that case, the perpetrator could also be charged with interfering in the reporting of domestic battery, a separate crime.
If the victim is injured, police will help them seek medical treatment. Afterwards, those medical records can be used at trial as further evidence.
According to Brian Melton of the Jo Daviess County Sheriff's Office, officers approach each domestic violence situation with the goal of collecting enough evidence to do a "victimless prosecution," or prosecute the case without the help of the victim.
"Sometimes there's not as much evidence as we would like," Melton said. "Of course, on the other side of that, there's sometimes a lot of evidence, and more evidence than necessary."
Westemeier estimated that in about half of the domestic violence calls his officers respond to, there's plenty of corroborating evidence. In the other half, police may believe that something happened, but the physical signs of abuse are subtle or invisible. Without witnesses, a statement from the victim is pivotal in those cases.
If police arrive before any physical contact takes place, law enforcement officers simply try to cool down both partners and defuse the situation. It is not reported as a domestic battery.
Both Westemeier and Melton say that they alert their officers or change their protocol if the prosecutor's office says there are consistent problems with the evidence they collect. In relatively recent cases, for example, Westemeier says the Galena police have been particularly diligent about getting detailed and lengthy statements from victims and witnesses in response to complaints about vague reports.
'Whatever happens, happens'
When the investigation is finished, officers collect their evidence, package it up, and send it to the state's attorney.
"Once we do our reports and we send them over to the courthouse, whatever happens, happens," said Westemeier.
"We do what we can do," said Huntington, "and even if sometimes we think we have a great case, (the prosecutors) don't think it's a great case."
Melton said the same is true in the sheriff's department.
"While we work as much as possible and as much as we can with the state's attorney...sometimes we just don't agree," he said. "I think law enforcement county-wide sometimes believe cases aren't prosecuted when we certainly believe there's enough evidence."
"Of course," he added, "every law enforcement official thinks that every arrest they make is good."
Kurt said he can understand the sentiment, but he thinks that officers are underestimating how much it takes to successfully carry out a victimless prosecution. In his opinion, he would need at least one eyewitness, and photographs of obvious injuries. In domestic violence cases, which usually occur in private, that kind of corroboration is rarely available. Kurt has never seen a case where he felt he had enough to go ahead without the victim's help.
"Unless you're up here every day and seeing the reasons why cases are being dismissed, you can't understand it," he said. "The system isn't broken. It's working."
Another route
According to Stephenson County State's Attorney John Vogt, the system there was in the same boat only a few years ago. "I looked at what we had, and we were probably dismissing 65 percent," he said. "So we decided to go this other route."
Like Kurt, he says the victim changes sides in over half his domestic violence cases. Now, Vogt treats victims more or less as hostile witnesses, if necessary.
Just as in Jo Daviess County, the law enforcement officers in Stephenson County will get a statement from the victim, along with any other evidence, as soon as they arrive. At that point, Vogt says, the victims are usually cooperative. Sometimes officers get a signed written statement, and other times they use recorders kept in every squad car to get the story on tape.
If Vogt thinks he has a strong case, he'll move forward with the charges even if the victim changes their mind. Vogt still has to call the victim as a witness so that they can be cross-examined by the defense, but he can also enter the statement as evidence, and the judge or jury can decide who they believe more: the victim a few minutes after the incident, or the victim on the stand. If the victim skips town or is unavailable for the trial, special statutes for domestic violence cases allow the previous statement to be used alone.
Vogt says that with the help of the police, he can build a solid case on a victim's statement, preferably recorded, and the testimony of the officer who arrived on the scene soon after. If the victim won't even give a statement and there's no physical evidence, they can still charge the case as disorderly conduct based on officers' observations.
And the system seems to be working. According to statistics from Choices, an advocacy group for domestic violence victims, 184 domestic violence cases were filed in Stephenson County in 2007. Of those, 159 have been concluded, 66 percent of which ended in convictions for domestic battery, and only six (around four percent) in dismissals. Of the remainder, six ended in acquittals, and 41 (26 percent) were either pled down to a lesser charge or resulted in a withheld judgement.
For the cases concluded so far in 2008, successful prosecution is even higher, with 90 percent of cases leading to prosecution as domestic battery, and 85 percent ending in conviction.
Vogt said that in most of the cases he pursues, he doesn't actually have to go to trial because defendants plead guilty. If the case has to go before a jury, success isn't guaranteed, but many still result in a guilty verdict.
Carroll County also uses victimless prosecution, though in fewer cases. Of the 25 cases filed and completed there in 2007, 11 were dismissed. However, of the 10 that were prosecuted as domestic battery, all ended in guilty verdicts. Another four cases were pled down to lesser charges.
The procedure in Carroll County is much the same as in Stephenson, though Carroll County State's Attorney Scott Brinkmeier requires more evidence before he'll pursue a case.
"It's tougher to do (a victimless prosecution)," he said. "A lot of the jurors feel, if the victim doesn't want to come forward, then why should we punish the person?"
Choices Executive Director Carrie Melton knows that it's a tough call.
"I understand the barriers to trying to do victimless prosecution," she said. "I guess in an ideal world, you're going to have a victim who's going to be able to be a witness in a trial."
