September 30, 2013

Maine prosecutor, attorney clash on domestic violence issue

District Attorney Maeghan Maloney draws fire for her tough policy pursuing domestic violence cases.

By Michael Shepherd mshepherd@mainetoday.com
State House Bureau

(Continued from page 1)

click image to enlarge

Maeghan Maloney, left, and Darrick Banda, right.

Rod Underhill, the attorney who oversaw domestic violence prosecution in Multnomah County while Maloney worked there, said her Maine policy sounds similar, if a little weaker, than the policy his office had then.

A CHANGE IN STRATEGY?

Attorney Lisa Whittier, a frequent court-appointed lawyer in Augusta, said that under Maloney, the average plea deal for someone accused of misdemeanor domestic violence assault hasn't changed much.

The district attorney's office is usually willing to offer defendants 364 days in jail but suspend all of it, with two years probation and conditions mandating participation in batterer's intervention programs and no contact with the victim, she said.

But the atmosphere around prosecuting strategy has changed, Whittier said.

She represents Ruiz, the Chelsea woman who spent 17 hours in jail after authorities arrested her earlier this month as a material witness in the case of Robert Robinson Jr., 45, of Chelsea, who allegedly beat Ruiz in April.

The district attorney said it was a drastic move she would only authorize in a dangerous situation, and Ruiz had shown signs that she may not testify.

"I don't think there's many prosecutors in the state that would have gone and arrested their victim," Whittier said. "It does traumatize victims much more than testifying. The threat of jail is a big thing."

Maloney said if Ruiz didn't testify, Robinson could have gone free, a sentiment Whittier and Robinson's attorney have contested, since he's jailed on a probation violation.

"Not having the victim, without a doubt, that's the number one reason we lose cases," Maloney said. That happened in the Hall case. Maloney's office lost another notable case, a felony domestic violence assault case against Todd Overlock, 30, of Vassalboro, with the alleged victim on the stand. Overlock was convicted of domestic violence in 2010.

According to a report filed by a sheriff's deputy, the alleged victim, Overlock's girlfriend, said he kicked her in the groin with his boot heel in May.

But Overlock's attorney, James Billings, said just after that, the victim lost a civil protection order case -- with a lower burden of proof than a criminal trial -- when a judge found the alleged victim unpersuasive.

Maloney said her office was less certain that a crime had been committed in this case, but she decided to proceed after the victim gave photographic evidence of injuries.

"I didn't feel like she was being untruthful; I thought she had a hard time explaining herself," Maloney said.

That's why Maloney proceeded with the case, even though a jury trial would be hard to win. Overlock was acquitted after three hours of jury deliberations, and Billings wondered why it was tried at all.

"That would seem like a case where you'd have grounds to decline if you would decline any cases," he said. "What cases are they going to decline?"

'WE NEEDED HER'

Maloney admits she has tried difficult cases. Her win-loss record doesn't bother her, she said.

If a prosecutor believes a crime is committed, the case should be brought whether it's a likely win or not, said Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis and Clark University in Portland, Ore., where she's a law professor.

Julia Colpitts, executive director of the Maine Coalition to End Domestic Violence, said the organization thinks all or nothing policies on domestic violence would be inappropriate.

It supports prosecutorial discretion, as "cases are often complex and prosecutors routinely evaluate a range of factors in determining how and whether prosecution will go forward."

Garvin favors aggressive prosecution of domestic violence cases, but only when the alleged victim of violence has a similar say in the prosecution as the prosecutor does.

Speaking about the Ruiz situation, she said "no policy should include the incarceration of a victim," as there are other ways to collect evidence in cases, such as police records, medical records and law enforcement calls.

Underhill, in Portland, Ore., disagrees. His office has perhaps arrested five victims in 25 years, he said.

He said he hates to do it, but the victim is needed in certain circumstances.

Maloney said her office tried to prosecute Hall with other evidence. "We needed her," Maloney said of Isbell, the alleged victim.

But Banda, Hall's lawyer, challenged Maloney on her tactics.

"There are creative ways to prosecute cases without a victim," he said. "If she doesn't understand that, that's a flaw in leadership and a flaw in her ability to be district attorney."

Michael Shepherd can be contacted at 621-5632 or at:

mshepherd@mainetoday.com

 

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