Sunday, December 8, 2013
By Michael Shepherd email@example.com
State House Bureau
AUGUSTA - In August, Corey W. Hall, charged with domestic violence assault and obstructing the report of a crime, appeared in court represented by Darrick Banda.
Maeghan Maloney, left, and Darrick Banda, right.
Authorities said Hall, 29, of Oakland, shoved Nicole Isbell, 21, to the ground in March, which led to the charges.
Yet Isbell didn't show up at his trial, defying a subpoena.
After Hall's case was dismissed by a judge, Isbell spent a weekend in jail. Ignoring the subpoena violated conditions of a suspended sentence she got on a theft conviction.
"Good job hunny," Hall commented on an online version of a Kennebec Journal story about Isbell's jailing. "Now we can get married!!!!!! :)"
That result stuck with District Attorney Maeghan Maloney, whose office prosecuted Hall.
Maloney counts it and a change in office policy as reasons that she made the most scrutinized move since she took office: jailing Jessica Ruiz, an alleged domestic violence victim who never missed a court date but made prosecutors worry she wouldn't testify at the trial of her accused abuser.
But defense attorney Banda, who says he may run against Maloney next year, said comparing that case to Hall's is a "fallacious argument."
"You can't assume that this woman is going to act the same way as a different person in a different case," he said.
It's not the first time Banda and Maloney have been on different sides of the tricky issue of prosecuting domestic violence.
Maloney beat Banda in the district attorney's race last November after pledging zero tolerance on domestic violence.
In a debate before the election, Maloney, a former Democratic state legislator, and Banda, a Republican defense lawyer, wrangled over the idea.
Maloney advocated prosecuting domestic violence cases if the office believes a crime has been committed, even if the victim doesn't want the case to go forward.
Banda said that policy could invite acquittals. If the office forgoes a plea deal early in a case, he said that with time, domestic violence victims may struggle with conflicting feelings about their alleged abuser and could refuse to testify, jeopardizing the case.
WHAT'S ZERO TOLERANCE?
Maloney, who took office in January, said the district attorney's domestic violence policy is to not drop cases when there is a dangerous mix of factors, including severe injury to a victim, hospitalization, threats to kill a victim, strangulation and a defendant with many encounters with police.
But it isn't totally inflexible, she said.
"There are times when a misdemeanor domestic assault happens where we can't try the case without the victim and if the case does not have a high lethality rating, we're not going to force the victim to testify," Maloney said last week.
Domestic violence policy marked her campaign for district attorney of Kennebec and Somerset counties, in the midst of a wave of increased public awareness of the issue. In 2012, 10 of Maine's 23 homicides were domestic violence-related. In 2010 and 2011, 21 of 48 homicides were linked to it.
Maloney's policy isn't the no-drop policy many prosecutors nationwide have, under which domestic violence cases won't be dropped once brought. Maloney calls hers a "soft-drop" policy.
In the 2012 debate, Maloney said as an assistant district attorney in Oregon's Multnomah County, she saw a zero-tolerance policy on domestic violence work. She worked there from 1998 to 2000 in the trial and civil forfeiture units.
On Wednesday, Maloney said she had mixed feelings on the policy. She said while it helped that the community knew all cases would be tried, "there were cases when I felt like I knew the jury was wondering why we were going forward with it" for lack of proof.
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: