Meeting Information

Protocols

Justice and Courage Project
Protocols Committee
January 14, 2004
Meeting Minutes

Place:   Bay Area Legal Aid, 50 Fell St., San Francisco

In attendance: 
Oli Sadler, Dept. of Technology and Information Services
Rosario Navarrette, Department on the Status of Women
Justine McGonagle, Department on the Status of Women
Susan Fahey, San Francisco Sheriff's Department
Barbara Kempster, Emergency Communications Department
Ken Theisen, Bay Area Legal Aid
Mary Twomey, Institute on Aging
Sharon Woo, San Francisco District Attorney's Office

Art Faro, Adult Probation Department
Introductions/Roll Call

Ken Theisen called the meeting to order.

Approval of Agenda
The agenda of the January 14, 2004, meeting was approved.

Select Recorder for Next Meeting
Sharon Woo will serve as recorder at next meeting

District Attorney’s Office – Prosecution Presentation
Sharon Woo presented the protocols of the District Attorney’s Department.  The protocols were created in 1999 and are being revised as legislation is expanded, there are new law readings.  As these changes are made the policy and protocol are not changed but the law of how to carry out the policy changes.

Case Review:

• DVRU presents case with initial police report, chronological of investigation, criminal history (SF, CA and Fed if applicable) of victim, defendant and witnesses, current stay away order printout, computer printout of any probation or pending charges, photographs and taped interviews.   Case reviewed by managing attorney (or designee) for appropriate charges.  Can be charged as a felony, misdemeanor, probation violation, parole violation or discharged.
• Forms:   Cases charged as misdemeanor or felony currently filed on handwritten pleading sheets.   Felony motions to revoke are completed on Felony MTR sheets in triplicate.  Cases discharged or discharged to parole only the record of investigation is completed.
• At the time of initial review, misdemeanor motions to revoke and criminal stay away orders are completed to be filed in court.
• Charged cases are given to the clerical staff for typing and processing.   Assistant District Attorney’s retrieve the completed files along with discovery packages for court. Assignment of cases are determined by the Department the case is assigned for arraignment.  Each arraignment court is assigned a domestic violence ADA.  The initial ADA assigned will vertically prosecute the case.

Court Procedures:

• At the time of arraignment, the ADA will make bail requests, stay away order requests and file any misdemeanor motions to revoke probation.
• After arraignment, the ADA will complete initial referral forms.  Those forms include:
• Letter to victim regarding stay away orders and copy of the stay away order.
• List of services available to victim
• ADA’s name and contact information
• ADA will fill out referral to Victim Services form to match victim with an advocate.
• Initial Case work-up.   ADAs will complete a work-up checklist to initiate additional materials needed ie. SDT of medical records, request of CAD printout, request of additional police reports.  Case worksheets are also completed for brief summary of case, nature of injuries, criminal history and potential offer.
• ADAs file notice of various pretrial motions ie (EC 1109 – Prior Conduct;   EC 1107 – Expert Witnesses)
• Cases proceed through preliminary hearing and trial to sentencing.   Sentencing is governed by PC 1203.097 requiring specific conditions of a defendant is granted probation.  Applies to both felony and misdemeanor convictions.  Conditions include:  formal probation; 52 week domestic violence counseling; fine to DV fund; community service, protective orders.
• Conclusion of case, ADAs complete a disposition memo with original charges, ultimate disposition and sentence.   Included are reasons for the disposition. ADA keeps one copy, copy to managing attorney and copy to the file.

Discussion Areas: 

• Statistics:  All statistics are currently tallied by hand.
• Motions to Revoke:   Often will file MTR in lieu of charges because of evidentiary concerns.  Ie no observed injuries/ no independent witnesses.  Proof of a MTR based on preponderance of the evidence not proof beyond a reasonable doubt.
• Discharged cases: Sharon will list reasons why the DA’s office did not file case on record of investigation.  Some examples are evidence of mutual combat, prior reports where victim is agressor, no observed injury with uncooperative victims etc.
• Warrant reviews:   Managing attorney reviews cases for issuance of warrants.  Same standard applies for rebooking of cases.  Review time for warrants generally within week given for review.  After warrant authorized, judge signs warrant and warrant entered into CLETS.  Timing of defendants arrested on warrants uncertain.  FRET (Fugitive Retrieval Enforcement Team) is generally contacted by DVRU so active search for defendant begins.
• Other timing issues:  Rebooking within 2 court days (48 hours); Parole picks up within 5 days.
• Criminal Stay Away orders almost always granted at time of arraignment.  Children may be added if present when assault occurred or are victim of assault.  Stay away can be lifted if the victim petitions the court.  The Court may lift the order.  DA generally objects to lifting of stay away until the conclusion of case and some counseling for the defendant.
• Criminal Stay-Away protects victim, any person present (even strangers) children, parents, anyone witnessing, location of home, incident occurred, school of children present and their workplace.  Initially interviews w/child custody or dr.

Precipitant witness address not listed for safety.  Often gives school a copy.

Court can lift Stay-Away orders.  IN-camera interview by court.  Order a modification of Stay-Away order and it becomes a protective order.  Difficult to enforce. Violation on no – harassment.

Trial/ Proof Considerations:
In lieu of testimony

• Tape recording 911
• tape to inspector
• prior DV abuse
• Expert witness why women recant type of situation.

Currently with US v. Crawford reconsidering proving DV cases.   No longer use 1370 evidence code.

DV Fund

There was a discussion around domestic violence fines and where the money goes.  Committee members thought that the City General Fund receives the money and then a portion of it is sent to the state.  Part of the money then goes to the DVRO Clinic for restraining orders and part of it goes to training.

Sharon Woo will look into and provide further information. Art Faro, APD, stated that he has an annual report of the money and will bring that to the next meeting.

Art Faro stated that perpetrators must have an ability to pay or they do not pay fines.

There was a discussion about probation.   Art Faro stated that he reports back to the Courts on his clients’ status and that probation can make recommendations. 

Possible Recommendation

• There was a discussion around community service being granted to domestic violence perpetrators and that this is not appropriate.
• MTRs:– Possibly establish criteria on motion to revoke and sentencing
• Stay Away orders in different languages (currently in English, Spanish and some Chinese)
• Warrant declination memo – give something to domestic violence.  Victims want the criteria for processing and or not processing and this as training to community groups.
• Stalking: If at any time period want to charge for staking and they contact for stalking.  Weakens case if the victim is having active contact with the defendant.  A credible threat is when victim has taken action to address threat such as avoiding contacting perpetrator.  Victim often contacts perpetrator and this weakens the case. Rec to list this criteria re: stalking

ECD Update
Barbara Kempster gave an update on domestic violence training issues at ECD.  She stated that she has not been contacted by Training Manager Carol Bernard.  She stated that she has not worked on developing domestic violence training to date.  Ms. Kempster stated that the Premise Hazard issue has been coming up lately too.

Next Meeting
At the next meeting the Sheriff’s Department will continue with its presentation.  Sharon Woo will continue with the DA Presentation at the March meeting.  The next meeting is scheduled for February 18, 2004, 12:30p.m. – 2:30p.m.