Legal Defense

Statesman Posted on Jun 10, 2019 at 7:52 PM

Updated at Jun 11, 2019 at 10:22 AM

By Ryan Autullo

Last September, Travis County deputies responded to a Wells Branch address where a witness reported a fight between a woman and a man who was trying to access her phone.

Deputies found the woman with an injury: a bloody, broken fingernail that she reported as a “one” on a pain scale, court records show. Her boyfriend, then 20, was arrested and charged with Class A misdemeanor assault family violence. His case is pending.

Many local defense attorneys say domestic abuse cases with minor injuries should be resolved quickly through plea deals or dismissed altogether. Instead, many cases drag on and clog up Travis County’s only misdemeanor family violence court, something that defense lawyers and victims advocates agree — albeit for different reasons — creates unwanted delays.

As of May 1, the court had 3,154 pending cases — 981 more than the average caseload in the six county courts that handle other misdemeanor offenses, like drunken driving, marijuana possession and theft. The family violence court’s rate for clearing cases — a formula that subtracts cases disposed from new cases filed — was 80% in April. The other courts were over 100%, meaning they disposed more cases than they received.

“The model is broken,” said defense attorney Daniel Wannamaker, who has a client with a case that’s been pending in the court for three years. “Get a new program, get a new policy, get a different regime in there. This just ain’t getting it done.”

Betty Blackwell, another defense lawyer, called the court’s functionality “unsustainable,” and defense attorney Charlie Baird said the logjam is the result of prosecutors “exercising very poor judgment in the initial screening of cases.”

But leaders in the County Attorney’s office say stiff prosecution is necessary to deter future violence in a relationship that can escalate into homicide.

“There are serious consequences on both sides,” though “the consequence for the victim could be life or death,” said Vicki Ashley, head of the County Attorney’s criminal division.

The swelling caseload in Court-at-Law Judge Mike Denton’s court — the only handling misdemeanor family violence cases in the county — has been a long-standing issue. Of all misdemeanor courts, Denton’s had the most new cases in all but one month over the past year.

To ease Denton’s load, district judges agreed three years ago to take over the felony family violence cases that were lingering in his court. District Attorney Margaret Moore soon came into office and launched a family violence unit, assigning a prosecutor to each of the eight felony courts to handle family violence cases. As of last week, each district court had an average of 112 felony family violence cases.

But the backlog in Denton’s court has persisted, raising concerns from victims advocates as well.

Coni Stogner, vice president of prevention and community services with SAFE, said delays can be challenging for victims who must wait years after an attack to relive the events at trial.

“Survivors would like to have some closure to know the outcome,” Stogner said. “For some survivors it makes them feel their case isn’t a priority.”

Defense attorneys bear some responsibility, Stogner said, because they often intentionally slow-play a case in hopes of attracting a more favorable plea offer.

Specifically, defense lawyers say they often counsel clients to reject any offer that would require them to admit an act of family violence occurred. That finding means the charge cannot be expunged from a defendant’s criminal history.

The County Attorney’s office has acknowledged inefficiencies and since the beginning of the year has made tweaks. The presence of longtime prosecutor Mack Martinez, who directs the office’s family violence division and is criticized by many defense attorneys for establishing a culture of overzealous prosecution, has been diminished. Dan Hamre, the first assistant to County Attorney David Escamilla, stepped in and beefed up the unit with two more paralegals and three more prosecutors. The positions came from existing employees in the office.

The additional staffing has freed prosecutors to review cases quicker and make more informed plea offers, Hamre said.

The number of cases set for trial when the year began was 610. After modest drops in the first three months, prosecutors in April disposed 56 cases that were set for trial, bringing the total to 499.

Defense attorney David Chambers said he has seen changes.

“I got a rejection notice two weeks ago that they declined to prosecute a case. That didn’t happen before,” he said.

Still, some believe the changes are merely a Band-Aid and the real solution will only come with the addition of a second family violence court. Denton, who has been on the bench for 20 years and is considering running for County Attorney next year, said “it would certainly help.”

“I’m not saying we shouldn’t,” County Judge Sarah Eckhardt said. “But I want to be transparent. There is a cost associated with that.”

Eckhardt, who earlier in her career prosecuted family violence cases with the County Attorney’s office, said she supports strong prosecution in many family violence cases, believing the county owes it to “the next person who gets involved with that person.”

But Eckhardt also believes prosecutors must use discretion.

“You can’t just try everything,” she said. “You’ll end up with a backlog and at some point there will be a tipping point where you won’t be serving justice.”

Autullo, Ryan. “Defense attorneys, victims’ advocates agree: Family violence court is too slow” Statesman, Austin American-Statesman, 10 Jun 2019, https://www.statesman.com/news/20190610/defense-attorneys-victims-advocates-agree-family-violence-court-is-too-slow.