Prosecutors, defense attorneys differ on jailing domestic violence victims who don't appear in court

Becky Campbell • Sep 6, 2016 at 8:47 PM

A prosecutor and judge showed no empathy for a Johnson City woman who couldn’t get a ride to court to testify against her abusive spouse, then ended up jailed where she was beaten worse than what her husband had done.

In the eyes of General Sessions Judge Robert Lincoln and the district attorney general’s office, the issue is black and white: the woman didn’t show up as ordered by a subpoena, so therefore she should have been — and was — arrested on a contempt of court charge. 

Donna Oliver appeared before Lincoln Thursday afternoon with her attorney, Nikki Himebaugh. They were ready for a trial and to present Oliver’s defense for not appearing in court earlier this year for her husband’s domestic violence case. But Oliver never got the chance because Assistant District Attorney General Leon Marshall, who asked a different judge to issue the arrest warrant, dismissed the contempt case.

Part of the reason, Marshall told Lincoln, was that Marshall was likely to be called as a witness and there was no substitute prosecutor present that day.

“On the state’s own motion, we move to dismiss the case today,” Marshall said. “The issue judge, there’s a potential conflict there with our office,” in that he or someone from the local DA’s office could be called as witnesses. “It’s something we’re going to address in future prosecutions for contempt ... on this particular case, we’re going to dismiss it.”

Himebaugh, however, wasn’t satisfied with just the dismissal. She asked the court to order Marshall to apologize to her client for the woman having to endure two days in jail and an assault while locked up. Himebaugh held up two photographs for the court and Marshall to see that showed bruises on Oliver.

Himebaugh said her client had been in court several times on the contempt case, but Marshall was absent at the previous setting.

“Now she is here, again today, and General Marshall cares so little about this case he had my client thrown in jail for two days,” Himebaugh said. “This is what happened to her while she was in jail,” she said, holding up the photos. “The beating was worse in the jail than it was by her husband. She did not willfully fail to appear in court. My client would like an apology from General Marshall. While we respect that General Marshall is now going to dismiss this case, it is offensive to my client that he cares so little about this case. He made himself a witness to this case and because he did so ... now he’s going to dismiss it.”

Marshall gave Lincoln an overview of what’s happened in the case. He said he hand delivered a subpeona to Oliver at a December hearing for her husband on the assault charge. She was to appear for a hearing in February.

“The case was dismissed because she didn’t appear. Later, Judge (Don) Arnold signed a contempt warrant,” Marshall said. Oliver was arrested on the warrant in May and also appeared in June and August, according to Himebaugh.

Lincoln said he didn’t see what the issue was based on Oliver’s failure to appear at the February hearing.

“This court continues cases a lot,” Lincoln said. “We have a huge volume of cases, and we’re slow to issue subpoena, and when we do, the law is you follow the subpoena. I don't know your circumstances. I know the outcome. You were not here on the day you were ordered by this court to be here, and that means you become arrested. You subjected yourself to arrest by your non-compliance for whatever reason.”

Lincoln went on to tell Oliver that “other people were here for your benefit of that trial date, and as I said, we’re slow to issue subpoenas cause at that point it’s serious enough that all parties are present … and you were given that subpoena in your hand to be there and chose not to. And I don’t know the reason why and I will never. That’s what brought you to jail, and for that, I don’t have any other explanation but that you brought yourself to the jail for the lack of following the court’s order.”

After the hearing, Himebaugh said that Oliver didn’t have a ride to the February hearing and called the clerk’s office, assuming the message would be delivered to the courtroom. She had also made the same argument to Lincoln, but didn’t get the opportunity to tell him that her client was disabled, doesn’t drive and had no ride to court for that February hearing.

“It still doesn’t change the circumstances of her being arrested and her ability to have a trial, or in this case it’s being dismissed,” Lincoln said. “It doesn’t change the action of the court to enforce its orders when they’re not followed.”

Himebaugh isn’t the only defense attorney to represent a client in a similar situation, or the only one with an opinion on the matter. 

"I think that the hypocrisy of it is galling,” defense attorney Patrick Denton said. “These lawyers in the district attorney's office are ostensibly devoted to championing victim's rights, so much so that their office sits adjacent to a Victim's Rights' Garden right outside of the Washington County Justice Center. And yet, here they are, threatening those same victims with incarceration. How the irony of that could be completely lost on them is beyond me.”

Sometimes witnesses don’t appear because they don’t want their abuser prosecuted, but even then, Denton said putting those victims — usually women — in jail simply re-victimized them.

“Of course, ideally victims are able to obey subpoenas and show up to court, but where this starts from is the assistant district attorneys, particularly the ones tasked with prosecuting the domestic violence cases, ignoring the wishes of the victims in these cases and choosing to go forward even over their protests,” Denton said.

“And so you have people — typically women — who've been placed in extremely stressful situations, often times concerned about disrupting what's left of a tenuous family situation, and these victims are told that the state, not them, knows what's best for their family. It's the most paternalistic example of big government I can think of, and it should stop. Absent some kind of extenuating circumstances or a verified record of similar past behaviors from the accused, a victim's wishes not to prosecute a case should be respected. End of story. On the other hand, throwing that victim in jail — or even threatening to — typically does more harm than the harm that domestic violence laws are designed to protect against."

District Attorney General Tony Clark said in response to questions about Oliver’s case that “there was nothing filed with the jail” about her being assaulted. “There was no offense report. As a prosecutor for 22 years, I understand the problem we have with domestic (assaults),” he said.

“I have seen, over the years, domestic violence victims who don’t come to court, or come to court and don’t want anything done. I’ve seen victim’s hospitalized, I’ve seen (domestics) lead to homicides. We have more domestic violence cases than any other kind of case we deal with.”

Clark said his goal is simply to get the necessary witnesses in any case to show up for court. Defense attorneys have said no such action as serious as arrest is taken against police officers who don’t show up for court — Clark said that is addressed within the officer’s department — or loss prevention employees for large retail stores in a theft case, or any other type of case, for that matter.

Another defense attorney, Gene Scott, said the DA’s office has a way to deal with domestic violence cases in which witnesses are reluctant to testify.

“I wish the DA’s office would ask for a summons for these people instead of an arrest warrant,” Scott said. “There’s no reason they can’t use a summons. In a majority of cases, making bond is a financial hardship for these victims. Unfortunately, a lot of them have no choice but to go back to their abuser for financial support even though on the night they called for help, they were in desperate need of that help.”

Clark defended what his office does to compel witnesses to appear in court because “we can’t (prosecute) without the victims participating in some fashion. I don’t want to see anybody go to jail that is a victim, but if we can help another 100 victims not be assaulted by their husbands or boyfriends or girlfriends, I’m sorry but it’s part of the system. You can take one or two of these and say you’re putting the victim in jail and that’s not what the system is for ... but it might be saving someone’s life.”

In Oliver’s case, Clark said the woman’s abuser “pleaded to three years on aggravated assault on this victim. While that case was pending, he picked up another charge. I look back and say there’s a history here. For whatever reason they’re back together and he assaults her again. At what point does the state say we have an obligation to prosecute this case, then she doesn’t show up and that felony charge was dismissed,” he said. 

“I don’t have to justify it,” Clark said. “You have a court order to appear in court (and don’t), they will issue an arrest warrant. We’re trying to alleviate the number of domestic violence cases we have. In the last five or six months, the number of victims appearing in court has increased 70 to 80 percent.”

Victims who are afraid for their safety are directed to Safe Passage, a shelter for abused women.

“We’re always learning and we’re always reacting to situations. In this particular situation we were desperately trying to address the issue of people thumbing their nose at subpoenas,” Clark said. He said his office is discussing how to take a softer approach toward victims of domestic assault.

“We’re working on looking at doing this on a summons the first time,” Clark said. “We first started doing show cause hearings on victims and defense attorneys argued we couldn’t do that. Then we went to contempt orders and said you’ll be held in contempt … we have done that for a while and some people have been arrested. I’d like to see if we can get the judges to issue a summons for someone who has not appeared in court. If they fail to show up for that, then go to the arrest stage.

“I don't want to see anybody re-victimized, but it’s a necessary tool,” Clark said. “I think the stats show people are showing up to court now. It’s unfortunate for the very few people who went to jail, but we improved substantially the number of people showing up to court.”


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