National District Attorneys Association

Challenges of Prosecuting Child Abuse Cases -- Understanding Recantation

NDAA Moderator — Tue, 12 Feb 2008 14:10:00 GMT

ALLISON L. TURKEL - As a Senior Attorney at the National Center for Prosecution of Child Abuse, Allison Turkel trains child abuse professionals across the country on the investigation and prosecution of child abuse, including issues related to victims with developmental disabilities, computer facilitated crimes against children and maltreatment cases as well as on domestic violence and juvenile issues. She also provides technical assistance to prosecutors, law enforcement, child protection workers, social workers and others engaged in the investigation and prosecution of these cases. She also researches and writes on a variety of issues. Ms. Turkel is also the Chief of Training.

Prior to coming to the National Center, she served as an Assistant District Attorney in the Manhattan District Attorney’s Office for nine and a half years. She then was an Assistant State’s Attorney in the McLean County, Illinois State’s Attorney’s Office for a year and a half, where she prosecuted felony domestic violence cases. Ms. Turkel has also taught on the college level. Ms. Turkel graduated from Temple University School of Law in 1987. She is a member of the Pennsylvania, Illinois and New York Bar.

CHILD ABUSE CASES POSE UNIQUE PROSECUTION CHALLENGES --

WHY ABUSED CHILDREN TAKE IT BACK – UNDERSTANDING RECANTATION

By Allison Turkel, Senior Attorney -- Chief of Training,

American Prosecutors Research Institute, National Center for Prosecution of Child Abuse

When is it a good day for a child to tell someone that she/he has been sexually abused? Especially if the abuse strikes frighteningly close to home?

Despite the common public perception that children will immediately run and tell someone if they are being abused, this is simply not the reality. There are many, many reasons that children refrain from telling someone what is happening to them; some of which are part and parcel of the inherent dynamics of the abuse syndrome and some of which are the result of skilled perpetrator manipulation or “grooming”. These are complicated relationships with which a child simply has neither experience nor ability to extricate themselves. Therefore, they often feel understandably helpless, and many simply learn to accommodate the abuse.

Once the abuse is disclosed – be it purposefully or accidentally – the wheels of the civil and criminal justice system start rolling and the impact can be profound and overwhelming for the child victim and their family. Often, the consequences that perpetrators warned of or threatened about do, in fact, come true – the perpetrator may be arrested; the child may be removed; the non-offending caretaker or siblings may blame the child for a change in status; there may be threats or violence; they may be embarrassed; and, they are often confronted with disbelief. The child may attempt to put the world back the way it was, before anyone found out – and one way they see to do this is to retract or recant their original report of abuse.

This behavior is often misunderstood by adults who wish to believe that the abuse never occurred in the first place or who might begin to question whether the child actually wanted the abuse to end. In fact, the child typically does want the abuse to end, but never imagines the consequences of disclosure. With little or no support and not knowing any other way to “make things right” for everyone else, a child will resort to saying it never happened in the first place. Recantation should not surprise anyone, given the pressure placed on these young victims. These situations must be thoroughly investigated and the temptation to drop a case simply because the child recants must be resisted. Our first goal must be to put the child first – consider what his or her needs might be – and then to continue to pursue justice.

It is only with support, respect, therapy, love and a responsive legal system that children can heal and the possibility of reassertion and participation in the process can become a possibility. The child being able to speak about abuse must be the goal – thwarting the perpetrator’s efforts to keep it a secret. This can only happen when adults are informed and educated about the dynamics of abuse and the challenges young victims face in finding the courage to tell.

Why Prosecutors Care About Driving Under the Influence Cases

NDAA Moderator — Wed, 16 Jan 2008 16:22:00 GMT

WHY PROSECUTORS CARE ABOUT

DRIVING UNDER THE INFLUENCE CASES

by Joanne E. Michaels and Mark M. Neil.

Joanne Michaels is the Director of the of the National District Attorneys Association in Alexandria, Virginia. The NTLC provides technical support and legal research to prosecutors and law enforcement across the country. Prior to this position, she was a Senior Assistant District Attorney for the Onondaga County District Attorney’s Office in Syracuse, New York. She was the Bureau Chief of the DWI Unit from April 2000 - August 2006. The DWI Bureau is responsible for the prosecution of all alcohol - related crimes and all vehicular fatalities. Ms. Michaels was previously a member of both the Special Victims and Violent Felony Bureaus within the Onondaga County District Attorney’s Office.

Ms. Michaels is a graduate of Salem State College and Vermont Law School. She was the President of the Onondaga County Bar Association in 2003. Ms. Michaels teaches at continuing legal education seminars across the country on all issues pertaining to impaired driving and vehicular crimes prosecutions. In addition, she lectures to law enforcement agencies and other traffic safety personnel on all issues pertaining to impaired driving and highway safety issues. She is one of the authors of the New York Prosecutors Training Institute’s Vehicular Homicide Manual for Prosecutors.

Mark Neil is the Senior Attorney for the National Traffic Law Center (NTLC), a program of the National District Attorneys Association. The NTLC benefits prosecutors and their traffic safety partners by increasing the awareness of highway safety issues through the compilation, creation and distribution of legal and technical information and by providing training and reference services. In this position Mr. Neil is responsible for conducting or participating in training conferences and seminars around the country, providing technical assistance to prosecutors and law enforcement officers, and representing prosecutors at national meetings. Prior to coming to the National Traffic Law Center, he was the Traffic Safety Resource Prosecutor for the West Virginia Prosecuting Attorneys Institute, a position he held from March 2004 until August 2007. A graduate of Vanderbilt University and the West Virginia University College of Law, he was a practicing attorney in West Virginia for over 24 years, 17 of which were as an Assistant Prosecutor in Raleigh and Fayette Counties. Mr. Neil handled felony and misdemeanor cases of all types at both the Circuit Court and Magistrate Court levels.

Why should prosecutors care about driving under the influence cases? Aren’t we just picking on social drinkers who haven’t hurt anyone? After all, they’re just misdemeanors, they take a lot of time away from other cases and they are a royal pain to handle. However, always remember they are incredibly important and are some of the most technically difficult cases to prosecute.

So, why should prosecutors care about driving under the influence cases?

Well, consider the fact that motor vehicle crashes are the leading cause of death in the United States for people between the ages of 4 and 34, the second leading cause of death for toddlers ages 1 to 3, and the third leading cause of death for adults ages 35 – 44. They are the eighth leading cause of death of all ages, currently killing over 42,000 people each year.

In addition, motor vehicle crashes injury more than 2.6 million people, all at a cost of over $230 billion.

Consider that nationally 41% of the total motor vehicle fatalities were alcohol-related in 2006; that’s 17,602 people.

Are national figures or statistics just too remote? Consider these figures as applied to a specific state, for example, West Virginia. Those figures represent the entire town populations of Martinsburg, Clarksburg or Beckley and all of the counties of Barbour, Braxton, Morgan or Taylor killed every year in alcohol related crashes.

Think of it in terms of your family and neighbors. 410 West Virginians were killed in motor vehicle crashes in 2006, 161 of them in alcohol-related crashes. 133 of those fatalities involved blood alcohol levels of .08 or higher. Put another way, that’s more than one West Virginian killed every day on our highways, more than one every 3 days because of impaired drivers.

The WV Regional Jail and Correctional Facility Authority reports that bookings for alcohol related charges for calendar year 2006 totaled 48,285 (this number may include multiple bookings of the same person). That added up to 23.6% of the total bookings into the regional jails. Of those numbers, 7080 were for 1^st Offense DUI. 1266 were for 2^nd Offense DUI while 561 were for 3^rd Offense DUI. There were 207 bookings for DUI with Injury and 37 for DUI with Death. In sum, all but 23 of the alcohol-related bookings dealt with driving offenses.

So now you know why prosecutors care about impaired driving cases.

Why shouldn't you?

CSI EFFECT -- DOES IT REALLY EXIST?

Joshua K. Marquis — Tue, 16 Oct 2007 19:50:00 GMT

CSI EFFECT -- DOES IT REALLY EXIST?

By: Joshua K. Marquis, District Attorney, Clatsop County, OR

and Velva M. Walter, Director of Media Relations, NDAA

WHAT IS THE CSI EFFECT?

Shows like CSI and its spin-offs, Law & order and its spin-offs, NCIS, Cold Case, Bones and other forensic crime programs depict actors using the most advanced forensic equipment and techniques available to solve crimes. These types of shows are ranked among the top 20 in America. While these shows can be educational concerning forensic science, they are – first and foremost –entertaining fiction. Unfortunately, some viewers think the science, equipment and techniques used on these shows are infallible and readily available to all law enforcement. Because of this, there is evidence that the outcome of some trials (conviction/acquittal) has been based upon a juror and/or juror’s unrealistic expectation of being presented with an abundance of forensic evidence that will prove the guilt or innocence of a defendant – far beyond a reasonable doubt In fact, it seems as if a new standard is beingcreated where jurors will soon expect evidence that will prove BEYOND ALL DOUBT, the guilt or innocence of a defendant.

IS THE “CSI EFFECT” HAVING AN IMPACT ON OUR CRIMINAL JUSTICE SYSTEM?

Is there really a CSI effect? Yes. Prosecutors are increasingly encountering the “CSI Effect” among jurors even when they have strong cases, with eyewitnesses and confessions by defendants. If they don’t have forensic evidence there have been jurors who will not convict a defendant even if no such evidence was available, and the defendant was caught “red-handed.” When these defendants are found “not guilty” because of the “CSI Effect” and a juror/jurors blind faith and belief in the truth of popular forensic crime shows -- they are released back into society to continue in their life of crime. Many of the cases in which juries demand “CSI Level” evidence are often less serious cases, and therefore they rarely make the news.

How Much Forensic Evidence is enough? There are even cases where prosecutors present the results of DNA evidence which positively proves that the defendant committed the crime, beyond a reasonable doubt. But, a juror may have seen a forensic crime show where there was more evidence than DNA. For example, in the show there may have been carpet fibers from a criminal’s home – or other materials from a crime scene were found on the victim. The juror(s) may insist that more evidence should have been tested, even if virtually none existed. These types of juror expectations have resulted in finding defendants not guilty – even with irrefutable DNA test results. Ironically, some of these tests are really only valuable to give opinions about whether fibers or hair are consistent with a particular theory. But, based on what juror(s) see on TV, they expect an expert to give an opinion with certainty, when that is not possible with that kind of evidence.

Do TV forensic crime shows include technology that is questionable or not readily available? Yes. Some jurors expect certain scientific technology to be available because they’ve seen it used on a TV forensic crime show. In many instances, this is used to create a “WOW—I didn’t know that” factor. Because these shows are “entertainment” they may include highly advanced or experimental scientific technology to make the show more interesting. Some of the technology shown on TV may exist somewhere, but often only in research labs or in a few very advanced and sophisticated laboratories. The technology may well exist, but not in many jurisdictions.

How does an “Actual Crime Lab” compare to those depicted in forensic crime shows? Some jurors may believe that all state forensic laboratories are as well equipped with the most advanced technology as they see in CSI Las Vegas, Miami and New York – and other forensic crime shows. This could not be further from the truth. Some of this advanced equipment is cost-prohibitive in many cities and states. While most state forensic labs make every effort to keep up-to-date on technological advancements and improved equipment, they don’t have the resources to match what audiences see being used on the CSI and other forensic crime shows.

For example, how long does it realistically take to get results of forensic tests like DNA, etc.? Unlike the shows on TV, results of DNA and other forensic tests can not be available within the blink of an eye, an hour, a day, or even weeks. This just does not happen! First, DNA and many other test results take much longer in real life, and second, many state crime labs have such a backlog that it can take several months, or longer, to receive results from evidence sent to be tested. It’s certainly understandable that a TV writer needs an ending to the show in 45 minutes, and few viewers would watch eight episodes just to find out a DNA result. But, in reality that is, in many instances, just about how long it would take to get those results.

Have Forensic Crime Shows Caused an Increase in the Number and Type(s) of Evidence Being Tested? Yes. The fact is thatb ecause of these forensic crime shows there now exists a much higher bar for police and prosecutors to reach in proving the guilt of defendants. Expensive tests are run on evidence such as fingerprints, DNA, etc. -- even when the defendant was “caught in the act” of committing the crime for which he/she is being tried by police and eye-witnesses.

Are defense attorneys using the CSI effect to their advantage? Yes. They do so by letting the jury know when prosecutors have little or no forensic evidence available to convict their client. They are telling the jury, that without hard forensic evidence – there can be no proof that their defendant is guilty. Defense attorneys claim the “CSI Effect” is a good thing because it places a higher standard for investigators. Yet, jurors should never forget that the defense attorney’s job is to sow doubt whether it really exists or not.

How can, and are, prosecutors responding to the “CSI Effect”? If evidence exists, but there is a question as to the need to have it tested, within reason, prosecutors are doing so anyway. When in doubt about what evidence needs to be tested, it is important to anticipate the “CSI Effect” on potential juror questions. Then, by using their best judgment, and recognizing the fact that many forensic labs have backlogs of evidence and are pushed to their limits – make their decision concerning the evidence they want to have tested.A study conducted by the Maricopa County Attorney in Arizona found that, “More than 61% of Arizona prosecutors who ask jurors if they watch forensic crime TV shows feel jurors ‘seem to believe the shows are mostly true’.” One prosecutor said, “I have been asking to have evidence submitted for fingerprints and DNA on a regular basis, sometimes even with admissions of guilt, just to show the jury we are all doing our jobs.”

Prosecutors are using Voir Dire (the jury selection process) to weed-out “True Believers” in the infallibility of TV forensic crime shows. During voir dire, or the jury selection process, prosecutors are asking jurors if they watch CSI and other forensic crime shows. They are also asking if a juror believes what they see on these shows is mostly entertainment – or largely based on fact. Prosecutors can then better determine who to strike, or eliminate, from becoming a member of the jury based on the probable high expectation by such candidates for a large amount of forensic evidence.

Prosecutors are educatingthe Jury concerning when forensic testing is – and is not – needed. Prosecutors are making every effort to explain to jurors why certain types of evidence was not available or – if available – was not tested. They work with the police, detectives and outside experts to help educate the jury about evidence that is, or is not, available in cases, and explain the importance of such evidence. Prosecutors are also clarifying why eyewitnesses and being caught while committing a crime would negate the need for forensic testing.

Prosecutors are u sing opening & closing statements to let jurors know what to expect concerning forensic evidence during a trial. I n opening and closing remarks, prosecutors are increasingly explaining to the jury why they do – or don’t – have forensic evidence. They are telling the jury what this means, in terms of deciding the guilt or innocence of the defendant.

More judges should instruct jurors to base verdicts ONLY on testimony and evidence (if any ) presented at the trial – NOT on what they’ve seen on forensic crime Shows. Prosecutors are working with judges to impress upon them the importance of countering the “CSI Effect.” They are stressing the importance of adding language to a judge’s jury instructions that warns jurors not to base any of their decisions on what they’ve seen on TV forensic crime shows but, only on the evidence and testimony they heard during the trial. The recent Maricopa County Attorney’s report found that, “88% of prosecutors felt that judges rarely address the issue of overcoming the CSI Effect.” One prosecutor indicated that, “Most judges think it’s silly I even address these questions in voir dire.” Most people who serve on juries take this responsibility very seriously. They don’t want to convict the wrong person, but they feel an equal responsibility to hold defendants they find to be guilty accountable for their actions. If prosecutors talk rationally about the “CSI effect” and why forensic evidence is not needed for a conviction in a specific trial, most jurors will respond in a reasoned and responsible manner.

ARE THERE ANY POSITIVE ASPECTS TO “CSI” AND OTHER FORENSIC CRIME SHOWS?

Absolutely. Among the positive results of forensic crime shows – more people are interested in forensics as a career. Before these shows became popular, there was a shortage of qualified candidates to become forensic technicians, scientists and pathologists. And, while the numerous TV forensic crime shows may somewhat glamorize these positions, many more students entering college are interested in pursuing careers in these heretofore understaffed professions. In fact, it should be noted that people who serve in these positions ought to be the best and the brightest. They have an enormous responsibility within our criminal justice system.

Viewers of these shows do learn about techniques and equipment that are revolutionizing the accuracy with which we can determine who did – or did not – commit a crime. When you have jurors use of terms like “mitochondrial DNA” – you have jurors who may take as “gospel” what they see on TV forensic crime shows. However, it’s important that you remind jurors to remember that these shows are primarily “entertainment.” Again, we must take the time to help jurors understand the type of evidence they will be considering during a trial.

Are forensic crime shows making police, prosecutors and other law enforcement officials work harder? In certain cases, yes. The “CSI Effect” may be making police, criminal experts, prosecutors and others do more forensic testing – even when such testing might be unnecessary. Is this a bad thing? From an economical standpoint perhaps, however, there may be instances where additional testing of evidence makes it far easier for the prosecutor to convince the jurors to convict a guilty defendant. But, more testing costs more money. And when there is NO evidence, but a significant amount of hard facts, and/or trustworthy eyewitnesses who can identify the person who committed a crime, common sense – not TV fantasy and fiction – should prevail. If forensic crime shows like CSI had existed before the trial of O.J. Simpson, a more forensically educated jury may have seen no way out but to find him -- and other defendants of that era -- guilty.

SOCIETY WILL BECOME MUCH MORE SAFE AS TECHNOLOGICAL ADVANCEMENTS CONTINUE TO BE MADE AND THERE BECOMES LITTLE, IF ANY, DOUBT ABOUT WHO COMMITTED A CRIME. PROSECUTORS ARE STRONG PROPONENTS OF ANY SOUND TECHNOLOGY THAT HELPS TAKES THE GUESSWORK OUT OF THE GUILT OR INNOCENCE OF A DEFENDANT. A WELL-EDUCATED PUBLIC IS A FRIEND – NOT A FOE – OF JUSTICE WITHIN OUR CRIMINAL JUSTICE SYSTEM. AND, IT’S UP TO PROSECUTORS TO HELP EDUCATE THE PUBLIC TO DIFFERENTIATE BETWEEN FACT AND FICTION.

"ELDER ABUSE" -- THE CRIME OF THE 21st CENTURY

Paul Greenwood — Fri, 14 Sep 2007 17:55:00 GMT

“ELDER ABUSE” – THE CRIME OF THE 21^st CENTURY

We are being reminded constantly that the older generation is the fastest growing section of the U.S. population. As prosecutors, we need to take heed of the various statistics so that we can prepare now to meet the challenge of responding to the needs of a graying society. For example, experts say that for every one elder abuse case reported – 14 more cases are not reported, and projections are that America’s 65+ population will nearly triple to more than 70 million by the year 2030. More than 2 million elder Americans are victims of neglect or mal treatment every year.

Within five years, the term elder abuse will be as familiar as spousal abuse and child abuse are now. Historically, law enforcement has largely ignored cases involving elderly victims. Police officers have tended to stereotype elderly victims, prosecutors have been reluctant to allow seniors to testify and judges have underestimated the impact of the crime of elder abuse upon the victim. This article is intended to shatter some of the myths associated with elder abuse and prosecuting crimes against the elderly.

Most states have specific statutes in their criminal codes that provide for “elder abuse” crimes; yet, few prosecutorial agencies take advantage of such laws because of outdated perceptions about seniors. Some classic stereotyping of seniors is :

Elders make poor historians

Elders are senile

Elders are fragile

Elders are long winded

Elders are grumpy

Very often, police officers write incomplete crime reports where the alleged victim is elderly because of an unfounded belief that the victim is incapable of providing sufficient information that can lead to a successful prosecution. Prosecutors have the responsibility to train and educate officers about the need to thoroughly investigate all cases of suspected elder abuse and to prepare law enforcement agencies for the anticipated influx of such cases in the next five years.

Elder Abuse takes two basic forms – that of physical and financial abuse. Within those two broad categories lie other subcategories. The main branches of physical Elder Abuse are :

Assault and battery – primarily inflicted by either :

a. Opportunists who target the elderly in the streets by muggings and robberies

b. Family members [typically sons, daughters and grandchildren] who systematically wield aggression against the elderly relative or

c. Careproviders who out of a sense of frustration lash out in anger against the victim

Neglect – caused by a willful or deliberate failure by the careprovider to provide basic services of hygiene, medical support or nutrition to the victim

Sexual assault – usually against a female Alzheimer’s patient in a facility by an employee of that facility.

Psychological abuse – normally in the form of verbal threats by a family member. Such threats can include hints of personal violence if the victim fails to deliver on financial “commitments”.

Financial Elder Abuse includes:

Theft of personal effects – usually, jewelry and antiques [by a careprovider]- which inevitably end up in the local pawn shop

Theft of individual checks from the back of the checkbook [by a careprovider]

Misuse of the ATM Card by the perpetrator after gaining the trust of the victim

Credit card fraud – after the perpetrator has successfully forged the victim’s details in a new credit application that has been obtained without the victim’s consent or knowledge

Theft of assets such as savings, stocks, or real property by use of a power of attorney or quitclaim deed

Scams by professionals who target the elderly – using such methods as:

a. Telemarketing fraud such as bogus charity schemes, illegal sweepstakes, and false investments

b. Door to door salespeople who convince the elderly victim to engage in labor services for a new roof, driveway or other home improvement

c. Exchanging the senior’s assets in return for a false promise of “life time care”

Prosecutors are learning to establish successful and effective Elder

Abuse prosecution units, that address the following:

1. Training of police to perform thorough investigation of all suspected elder abuse crimes.

2. A public awareness campaign which informs the community as to the correct channels for reporting suspected cases of abuse.

3. Educating key personnel such as Adult Protective Services caseworkers, emergency room nurses and doctors, paramedics and fire officers.

4. Performing outreach to such financial institutions as banks, credit unions and stock broker firms.

Police training:

Law enforcement should be encouraged to treat any suspected cases of elder abuse with the same amount of enthusiasm and dedication as any other serious crime. Training should be given in the area of interviewing techniques, the importance of photographs and videotaped victim interviews, and in spotting red flags and indicators of abuse. Officers need to understand their duty to cross-report to Adult Protective Services and to make enquiries from neighbors, relatives and close friends of the elderly victim. In financial abuse investigations, officers should not dismiss the matter as “civil” simply because of the existence of a Power of Attorney.

Public Awareness Campaign:

Most counties throughout the United States have a 1-800 telephone number that is reserved for reporting suspected cases of elder abuse. However, the majority of the public does not know of this number and have never heard of Adult Protective Services (APS). Prosecutors should orchestrate community efforts to create billboards and posters and public service announcements on local television and radio. Slogans such as “abuse is getting old” are an effective means of getting the message out to the public. The number of calls being reported to APS will undoubtedly increase after such a public campaign.

Educating Key Personnel:

Prosecutors have a unique opportunity to train personnel who find themselves dealing with elders in need.

APS workers – after the initial referral is made via the 1-800 number a caseworker is assigned to pay an unannounced call upon the senior. This worker needs training in the area of red flags of abuse so that it will be known when to bring in law enforcement.

Emergency Room personnel – sometimes an elderly patient will appear at a hospital suffering from injuries sustained from an assault or because of neglect. Medical practitioners need to be able to differentiate between accidental and intentionally inflicted injuries. The victim may be unwilling to explain truthfully the cause of such injuries and it will be up to the triage nurse to obtain as many details as possible regarding the patient’s living conditions and the events leading up to the patient’s arrival at the hospital.

Paramedics – sometimes these personnel are the first responders to a domestic call for assistance where an elderly person is in need. If the paramedic is not trained to observe certain indicators of abuse or neglect, there is a danger that the police will not be called to the scene.

Fire officers – like paramedics, fire personnel are often the first responders to the home of an elderly victim. They also require training to spot potential abuse or neglect.

Outreach to financial institutions:

The venue for many crimes of financial elder abuse is the bank, credit union or stockbroker firm. The perpetrator will often take the elderly victim into the financial institution in order to prepare a Power of Attorney or arrange for a transfer of monies. The staff at these institutions should be made aware of the various techniques that are used to exploit seniors and should be encouraged to be more vigilant in approving alterations to existing financial arrangements. For example, staff members should learn to discuss such alterations with the elderly customer in private, away from the elder’s companion. Some states have already established protocols – notably Massachusetts and Oregon – and these protocols provide excellent resources for other states. Several states are enacting laws that provide immunity to banks when reporting a suspected case of financial elder abuse to Adult Protective Services or to law enforcement.

Seniors and the court system :

For many seniors, this will be their first exposure to the criminal justice system. They often have fears, misconceptions and feelings of reluctance. Prosecutors are helping seniors by taking care of their special logistical, medical, and personal needs as well as providing a comfortable environment for the elder while waiting in court.

Profile of a physical abuser.

In many cases, the physical abuser will be the son of his widowed mother. He is either divorced and has come back to live at home with Mom because of financial pressures borne by the divorce or he is single and has never left home. He tends to be aged late thirties to mid-forties while his mother is usually in her mid to late seventies. In the majority of cases, the son is lazy and unemployed. He will have used a variety of excuses as to why he is unable to work, and his mother has accepted such excuses. He is addicted to either alcohol [normally beer], narcotics, or gambling. In order to feed his habit, the son extracts money from his mother. There may come a time when the mother refuses to provide any more money, and this tends to be the flash point for violence. The son may grab his mother’s arms and shake her, or may push her into furniture or may throw an object at his mother. Typically, the mother will not immediately call the police out of a sense of failure or shame. Often, it is neighbors who hear the altercations between the son and his mother but they may also be reluctant to involve the police.

Red flags/indicators of elder abuse:

The victim may become increasingly withdrawn from the community and much more dependent upon the perpetrator. If an unannounced visit by a caseworker from Adult Protective Services is made, the perpetrator may insist that “this is not a good time.” An excuse that the victim is sleeping or is unwell may be given. Even if access is given, the suspect may try to prevent a private conversation between victim and social worker by leaving the door open or by hovering over the victim. Family and friends who attempt to make telephone calls are prevented from speaking directly to the victim.

In financial transactions at a bank, the suspect will attempt to control the conversation with the bank official and will endeavor to speak on behalf of the victim. The bank clerk may be told that the elderly customer is unwell or hard of hearing. The suspect will justify the need for a power of attorney or will insist that any withdrawals are made in cash.

Over the next few years Elder Abuse will become one of this country’s major crimes. Prosecutors are (or are in the process of) preparing now to meet this challenge and develop an expertise so that we can aggressively prosecute the escalating group of criminals who are preying upon our elderly population.

We also encourage the public, if they suspect that an elder neighbor or friend is the target of abuse, to call their APS or the police in their area and report their suspicion.

Animal Abuse & Its Association with Other Violent Crimes

Joshua K. Marquis — Tue, 14 Aug 2007 20:04:00 GMT

Prosecutors, law enforcement professionals, advocacy groups who work on behalf of victims of elder abuse, child abuse and domestic violence all recognize the undeniable association between crimes against animals and crimes against people.

Animal Abuse and Its Connection to Serial Killers, Kids who Kill Kids and Other Violent Criminals

Mahatma Gandhi said, "the greatness of a nation and its moral progress can be judged by the way it treats its animals." The truth in this statement should prompt police, investigators and prosecutors to vigorously investigate and prosecute – to the fullest degree possible – those who abuse animals in America. While cruelty to animals is a crime in all 50 states, and carries a felony sentence in 43 states plus the District of Columbia for severe animal abuse and 48 states for felony level dog fighting offenses – has, in the past, been a crime that is rarely investigated and prosecuted. Fortunately, this is now changing. The well-worn excuse by many law enforcement officials – that “it’s just a dog,” and “we should be focusing on crimes against people” -- shows a frightening lack of understanding of the ramifications of animal cruelty and its insidious affects on the animal’s “human family,” and other law abiding citizens. Animal cruelty can be linked to the vast majority of serial killers, many habitual violent offenders, and most children and teens who kill.

If we pay attention to children and youth who perform acts of cruelty on animals and take immediate action to stop their behavior, future crimes can be prevented and lives may be saved. Here is a very short list, that’s part of a very long list, of examples of adult serial killers – and young killers -- who predicted their futures by torturing and killing animals in their early years. Their behavior seems to have been ignored. Had someone helped them by taking their animal abuse seriously, and sought the help of law enforcement and others who understand the seriousness of this behavior, who knows how many lives could have been saved?

The school shootings that took place between 1997 and 2001 in: Pearl, MS; West Paducah, KY; Jonesbobo, AK; Springfield, OR; Littleton, CO; Conyers, GA; and San Diego, CA ALL contain a common element. Prior to killing their classmates and teachers, ALL of the boys involved in these school shootings had performed acts of animal cruelty such as: shooting dogs, setting cats on fire, blowing up cows and killing other small animals, prior to killing humans.
Albert DeSalvo, The Boston Strangler killed 13 women. When he was a boy he put cats and dogs into orange crates and shot arrows through the slats to kill them.
Ted Bundy, was a serial rapist and killer of at least 30 women. As a youth he tortured and killed animals.
Jeffrey Dahmer, killed and cannibalized at least 17 people. As a boy, he killed and impaled the heads of cats and dogs on sticks.
Dennis Rader, the BTK killer in Wichita, KS, killed at least 10 people. He abused and killed animals for practice prior to killing people.

The lesson is that many potential killers can be recognized in their youth. Boys who torture and kill animals are not just “boys being boys” or “going through a phase.” Animal abuse is a serious warning sign. As anthropologist Margaret Mead once noted, “One of the most dangerous things that can happen to a child is to kill or torture an animal and get away with it.” As shown above, the results of doing little or nothing are chilling.

When acts of animal cruelty are known or suspected, they should be reported to the proper authorities, such as police, local animal control agencies, humane societies and animal shelters. In most instances, these officials have the authority to enforce state and local laws related to animal abuse. Reporting can be done anonymously. By early reporting suspicion of animal abuse by a youth, and providing appropriate punishment and treatment, the number of lives that could be saved is literally incalculable.

Animal Cruelty and its Link To Domestic Violence, Child Abuse and Elder Abuse

We need to recognize the strong link between people who abuse animals and also commit acts of domestic violence, child abuse, elder abuse and other violence.

There is an alarming association between people who torture, abuse and kill animals – and also torture, abuse and kill their spouses and/or partners, children and the elderly. The abusers seek to control the animals they abuse and likewise want to control the people that they abuse.

In one national and other statewide studies – 71 to 83% of women entering domestic violence shelters reported that their partners also abused or killed the family pet.

Researchers found animal abuse in 88% of those families in which there was child abuse, and numerous other studies indicate there is a high statistical link between animal abuse and child abuse.

According to the Humane Society of the United States, “a 1997 survey of 50 out the largest shelters for battered women in the United States found that 85% of women and 63% of children entering [these] shelters discussed incidents of pet abuse in the family.”

Some women will not leave their abusive spouse and/or partner because they fear for the life of the companion animal they would have to leave behind. Fortunately, by recognizing this problem, there are increasing numbers of organizations that will work with the victim of domestic violence to either shelter the pet or partner with another group that will provide care and protection to the family pet. This then enables victims of domestic violence to be more willing to leave their abusive environment – secure in the knowledge that their pet will be safe.

There is also a strong link between those who abuse elders, generally their caretakers, and abuse of the elder’s companion pet. Caretakers frequently threaten to injure the elder’s pet in order to get something from them.

The threat of, or act of, animal abuse is also used by the abuser to keep their victims silent about the abuse taking place in their homes. The threat of animal abuse is frequently enough to make a child, adult and elder victims keep quiet about any abuse taking place. The fear that their pet will be tortured or killed keeps them from seeking help – or reporting the abuse.

Therefore, when a police officer and/or animal control official receives a report of animal abuse it should raise a red-flag. When the official responds they should not only investigate the charge of animal abuse but also know how to evaluate and check for signs of spouse/partner, child and elder abuse that may be taking place a well. If animal abuse or family violence is taking place – the abuser should be arrested and prosecuted.

Other Forms of – and Facts About – Animal Cruelty

Dog fighting and cock-fighting is taking place across America. Dog fighting is banned in all 50 states, but is a felony in 48 states. The fights can be well-organized and take place in facilities equipped with a pit and space for spectators, or at neighborhood schoolyards, dead-end streets in the middle of town, or in rural area barns and other like places. It is important that prosecutors work with police to investigate and prosecute those who organize and participate in these blood sports. These fights not only promote and foster animal abuse, but create an environment that spawns other crimes such as drug trafficking and drug use, gun trafficking, money laundering and other types of both high and lower level criminal activity. The dangers associated with dog and cock-fighting are notorious and frequently children are present at these events. Additionally, with cock-fighting, there is the added new fear of spreading “avian flu.” Prosecutors and police are committing themselves to ending these cruel and illegal blood sports and the criminal activities associated with them.

The Internet is being used to show and promote animal cruelty that reaches to the level of criminal activity. For example, according to the American Society for the Prevention of Cruelty to Animals, “The Federal Government’s ‘Crush Act” “ provides punishment ranging in severity from a fine to five years in prison, for the display of acts of cruelty and sexual abuse intended for commerce. ‘Crush’ videos generally depict women, in stiletto heels, stepping on small animals such as kittens and rodents.” Prosecutors are allerting alert federal agents if they are aware of Internet activity that depicts cruelty to animals, that is criminal in nature, and is being created and disseminated in their jurisdictions.

Many Puppy Mills thrive because of they are owned and operated by people who practice animal abuse and torture. They keep bitches in cages all of their lives, and breed them from the onset of their first heat until they die from over-breeding. The dogs are rarely let out of their cages. They are kept in filthy conditions. They lack adequate food and water. And, they receive virtually no affection or veterinary attention. Puppies born at Puppy Mills are stuffed into unheated and non-air conditioned trucks. Many die before they reach their destination – Pet Shops. A large number of these puppies are sick and die in the Pet Shop or after they’ve been purchased by unsuspecting customers. Prosecutors and police who live and work in jurisdictions that have Puppy Mills are becoming more vigilant concerning the welfare of the dogs being housed within them. If animal abuse and cruelty is occurring – the Puppy Mill will be shut down and the owners will be arrested and prosecuted.

Animal hoarding, or people to take in large numbers of animals (from a few dozen to hundreds of animals), while believing that they are helping “stray” animals – ultimately end up keeping them in deplorable and squalid conditions – without adequate food, water and medical care. If there are children or elders in the home – the animal hoarding is a danger to them as well as the animals. In many instances, when the hoarding is discovered, a large number of the animals have been dead for long periods of time. Those animals that are alive usually need a great amount of medical care and many are beyond help and must be euthenized. Animal hoarding is now a crime that is being investigated and prosecuted regularly.

To quote Albert Schweitzer, “Anyone who has accustomed himself to regard the life of any living creature as worthless is in danger of arriving also at the idea of worthless human lives.” Domestic animals are the only friend some people may have. Pets protect and guard families. They provide independent living for many disabled people who otherwise would be institutionalized or totally dependent on their family or friends. Dogs tirelessly serve disaster sites for signs of human life, they work with firefighters and police to save lives as well as search for drugs, bombs and other types of dangerous materials. Throughout history, there are stories about animals who have saved the life of their owners. They bring comfort and laughter to children adults and the elderly both at home and in hospitals, hospices, and homes for the elderly. Studies prove that people who own pets are healthier, have lower blood pressure, and live longer than those who don’t. Pets ask little in return for their loyalty and love – just food, water and affection. These are reasons enough to investigate, arrest and prosecute those who abuse, torture and kill anmals. However, the recognized link between those who abuse animals and go on to commit violent and heinous crimes against people further heightens the need to investigate and prosecute these crimes.

No, "It's Not Just a Dog" -- Animal Abuse and Beyond

Joshua K. Marquis — Wed, 13 Jun 2007 13:38:00 GMT

NO, “IT’S NOT JUST A DOG!” . . .

ANIMAL CRUELTY AND BEYOND

By Joshua Marquis, District Attorney, Clatsop County, OR,

Vice President of NDAA’s Board of Directors and

Vice Chair – Animal Legal Defense Fund

Albert Schweitzer said, “Anyone who has accustomed himself to regard the life of any living creature as worthless is in danger of arriving also at the idea of worthless human lives.”

There is a well established and recognized link between animal cruelty and serial killers, violent criminals, young killers, domestic violence including spouse/partner, child and elder abuse.

For example prior to the students involvement in school shootings between 1997 and 2001, such as: Littleton (Columbine), CO; Jonesboro, AK; Springfield, OR etc., all of the boys had performed acts of animal cruelty. These acts included shooting dogs, setting cats on fire, blowing up cows and killing other small animals. Serial killers such as Albert DeSalvo, the Boston Strangler who killed 13 women; Ted Bundy who killed at least 30 women; Jeffrey Dahmer who killed and cannibalized at least 17 people; and Dennis Rader, the BTK killer in Wichita, KS who killed at least 10 people, all tortured and killed animals prior to killing people.

There is also an alarming association between people who torture, abuse and kill animals and also torture, abuse and kill their spouses and/or partners, children and the elderly. The abusers seek to control the animals they abuse and likewise want to control the people that they abuse.

Also, there are many people involved in other forms of animal cruelty that prosecutors, police and others within law enforcement are actively pursuing. These are in the form of dog and cock fighting (one of the most dangerous environments for law enforcement to infiltrate), Internet use that depicts and promotes animal cruelty, puppy mills and animal hoarding.

The following is a case that I tried about animal hoarding and its effects.

Vickie Rene Kittles, also known as Susan Dietrich, was convicted on 42 counts of Animal Neglect in Astoria, Oregon in February 1995 after five weeks of trial, months of delay, and years of suffering for the animals she claimed to love.

I was in charge of Kittles' case which concluded with what some called the world's longest dental appointment without anesthesia. Kittles was able to drag the case out almost two years through endless manipulation of people and the legal system. She was afforded nine different court-appointed lawyers - none of whom met with her satisfaction, and went through six judges. The judge who tried the case was so traumatized that he refuses to have anything further to do with the case or Vickie Kittles.

Kittles, who has a long criminal record of assaultive conduct dating back to the late 60s, surfaced most publicly in Broward County Florida in the early 1980s when she was charged with various crimes after neighbors complained about the scores of dogs and two horses she kept in her mother's suburban house. Kittles claimed then - and now - that she is the victim of a massive government conspiracy, somehow tied to the Drug Enforcement Administration, that sought to poison her and "her" dogs.

She was eventually run out of one part of Florida only to surface in another with her aged mother, Jean Sullivan, who has not been seen since living in filth with her daughter in rural Manatee County, Florida. From there Kittles (alone) went on to Mississippi, where she convinced some good-hearted souls that she would "save" scores of dogs by taking them to a "no-kill" shelter in Colorado.

From Mississippi she fled to Colorado where she once again claimed persecution. She left a wake of well-meaning vets with unpaid bills and sponsors whom she turned on when they failed to give her everything she wanted. From Colorado in the late 80s she traveled to rural Washington where she and "her" dogs were delivered by a semi-truck. True to form, she was successful in conning some wealthy backers to send her $15,000 which she used to buy a school bus that became her home, and the prison for over 100 dogs. She once again wrung every bit of kindness - and money - out of her would-be benefactor before accusing her too of being involved in a plot.

She then moved across the Columbia River to rural Clatsop County Oregon where she was finally confronted by Animal Control Supervisor Tommi Brunich on April 16, 1993. Brunich found a positively surreal scene in which Kittles shrieked threats at officers and neighbors while grasping a dog that was continually convulsing. The dog, which had received no veterinary care but that "special knowledge" possessed by Kittles, died despite the best efforts of local vets. When the dog was autopsied there was absolutely no food in its system or ANY body fat - a sign of long and painful starvation.

The scene on board the bus was worse - 115 dogs, four cats, and two roosters crammed into a bus caked with urine and feces, stinking so bad that officers used gas masks to go inside. Kittles boasted at trial that she had not let any of the dogs off the bus for weeks to prevent them from getting fleas. The dogs were, however, suffering from almost every other parasite, including hookworm, whipworm, and in at least 16 cases, deadly heartworm.

After Kittles was arrested she threatened to sue anyone who touched "her" dogs. Despite her claims of love for the dogs she visited them only once and actually convinced a judge to FORBID the state from getting medical treatment for any of the dogs.

When I took office in the spring of 1994 Kittles was merrily holding the whole court system hostage, alternately ranting and raving, and filing literally hundreds of self-styled legal motions. Eventually we got the dogs treated for heartworm and fostered out many of them to loving homes. Despite Kittles best efforts to delay the trial, it was finally scheduled to go to court on August 2, 1994. Despite strong objections from my office the judge had permitted Kittles to live out of state - just across the river, and when the trial date came, Kittles refused to show up, requiring an extradition fight which took 3 months just to get her back to Oregon.

In a trial that should have taken two days, Kittles berated the judge, me, the witnesses, the jurors, and the audience, and only later in the trial was finally sentenced to spend a total of 71 days in jail for contempt. Kittles used every artifice available to endlessly question witnesses about irrelevant material and when her turn came to give her side, she talked steadily for two and a half days. The jury - often the target of her accusations of being genetically deficient - took only a couple hours before unanimously convicting her on all 42 counts.

The case drew huge attention from regional media who sent satellite TV trucks to cover the more spectacular parts of the bizarre trial. Kittles is an animal collector, a title she now proudly wears despite the testimony of Humane Society of the United States Vice-President Randy Lockwood that animal collectors are much like drug addicts in their pathology, and much more interested in themselves than "their" animals.

As D.A. I usually handle murder cases, and Kittles is in my opinion one of the most dangerous, evil people I have ever encountered. She has enough psychosis to be exasperating, and enough cunning to bend the system to her will. Like any really nasty virus, she needed to be confronted and stopped before she could ruin more lives - of people and dogs.

After spending more than a year in Oregon and Washington jails, Vicki Kittles was released from the Clatsop County Jail after serving her jail sentence for neglecting 115 dogs. But with her history of animal abuse and hoarding, she is likely to begin the same distructive cycle again.

Although we could have kept her in jail even longer for her continuing refusal to be evaluated or treated for her "animal addiction," to continue jailing her would just inflict cruel and unusual punishment on her jailers and Oregon taxpayers (in fact one fellow inmate had begged to be sent on to the state woman's prison rather than suffer another night in a cell with Vickie Kittles).

Our main concern was that she not bother the brave people who cared for the dogs and brought them into their homes. So on a rainy November morning, Kittles who had enjoyed jail food so much she couldn't wear the clothes she came into jail with, called a cab and loading two huge boxes of what she calls her "critical legal papers" she ordered the cab to take her to McDonalds. We haven't seen anything more of her, and hope it continues that way. If she violates her probation, particularly by harassing the people who helped the dogs, she is eligible to serve at least 5 more years in county jail.

On a cheerier note, some good has come from this mess. As the result of hard work by the Oregon Humane Society's Sharon Harmon and former U.S. prosecutor Charlie Turner and the sponsorship of State Representative Tim Josi, the Oregon legislature passed House Bill 3377, named the "Kittles Bill" by the media. HB 3377 makes particularly aggravated animal abuse a felony and, more directly relevant to the Kittles case, allows a court to care for and foster animals seized while a criminal charge is pending.

The overwhelming majority of the surviving dogs have been happily adopted and are living wonderful Kittles-free lives. I have genuinely been moved by the number of people who have volunteered their time, homes, and money to help out helpless animals victimized by Vicki Kittles. One note I received in particular was so poignant that I asked and received permission from the family who sent it to share their words and pictures .

The bottom line, though, with regard to animal abuse is that when people observe animal abuse taking place it should raise a “red flag” that the abuser may also be abusing their family members or may be involved in the commission of violent crimes. These people should be reported to the police or other appropriate authorities.

DTAP: A Prosecutor's Safe and Cost-Effective Alternative to Incarceration

Charles J. Hynes — Wed, 16 May 2007 19:12:00 GMT

by
Charles J. Hynes

(Mr. Hynes is Vice President and Member of NDAA's Board of Directors)

At last year’s graduation ceremony of Brooklyn’s Drug Treatment Alternative-to-Prison (or “DTAP”) program, a successful participant told the audience:

I’m 45 years old and spent 21 years in prison . . . . Now, I’m a substance abuse counselor. I love the job that I do, I do it with all my heart. I believe in DTAP . . . this saved my life.

Another graduate, a forty-four-year-old who now works as a traffic flagger for an electrical company, confided that he had been in and out of jail since he was eleven and had never thought he could ever stay clean and sober. Year after year, at DTAP graduations, we hear of such men and women who, having spent five, ten, sometimes twenty years of their lives incarcerated -- half a lifetime behind bars –- finally acquired the strength and tools they needed to land a job and remain drug-free. These were people who had hurt themselves, their families, and their communities with criminal conduct driven by a voracious drug habit. But now they could stand proudly before an audience which included police officers who had arrested them, assistant district attorneys who had prosecuted them, and judges who had sentenced them, and look them straight in the eye as productive citizens of Brooklyn.

Why did we, as a society, not reach out to these people sooner? Why were they locked up again and again, even though imprisonment seemed to have little long-term deterrent effect? The quick response from members of the law enforcement community, including prosecutors, is usually pretty simple: Because these addicts posed a threat to public safety. Their drug-related criminal activity was damaging our communities and we had to incapacitate them by locking them away.

While incarceration might have once seemed a reasonable short-term solution for this non-violent, drug-addicted population, it was, and is, in fact, misguided. As many jurisdictions have come to realize, incarceration is extremely expensive. Additionally, pouring money into corrections siphons funds from other critical social services. Research shows that between 1985 and 2004, states increased their spending on corrections at a far greater rate than on other social services such as Medicaid, education, transportation, and public assistance.

Further, following their release, many drug-addicted offenders, propelled by their untreated addiction, either commit new crimes (often drug offenses) or violate the terms of their parole, and end up returning to prison. This vicious cycle of substance abuse, drug-related crime, and re-incarceration takes a terrible toll on the individual and the community, and drains the public coffers.

In the 1980s, the crack-cocaine epidemic and a growing demand for heroin devastated New York City. In New York, sentences of mandatory imprisonment ensured that even dealers who were selling small amounts of drugs to support their habits spent years incarcerated. Prison populations were exploding, but drug crime did not appear to be decreasing. In 1985, there were 2,218 commitments to New York State prisons for felony drug offenses -- about 18% of all new court commitments that year. By 1990, that number had more than quadrupled to 10,784 –- about 47% of all the new court commitments. The vast majority of the drug offenders in prison were substance abusers, and many of them were repeat felons.

Faced with this crisis when first elected in 1989, I concluded that I had a responsibility to explore new strategies to increase public safety. Research indicated that the threat of a prison sentence could be used successfully to pressure drug-addicted offenders to enter and stay in treatment. Collaborating with community-based treatment providers, the judiciary, the defense bar, probation, and parole, my office launched the Drug Treatment Alternative-to-Prison (DTAP) program in the fall of 1990.

DTAP is the nation’s first prosecutor-run program that diverts substance-abusing, nonviolent repeat felony offenders away from prison and into drug treatment. These offenders, who combine the desperation of the chronic drug user with the demonstrated propensity to reengage in criminal behavior despite previous periods of incarceration, present a higher risk to public safety than an offender charged with drug possession as a misdemeanor or first felony. At the same time, it is precisely from the successful treatment of this group that society stands the most to gain. Under DTAP’s current structure, prosecutors carefully screen cases to determine whether the defendants meet eligibility criteria and to exclude violent offenders and major drug traffickers. Candidates then receive a clinical assessment. Defendants may or may not be facing drug charges; the key is whether they are drug addicted. Defendants accepted for the program plead guilty to a felony charge with the understanding that a specific prison term will be imposed in the event of treatment failure. The sentence is deferred while the defendant undergoes 15-24 months of intensive, residential treatment in a therapeutic community. Compliance is carefully monitored, and the prosecutor and court receive frequent treatment progress updates. The District Attorney’s Warrant Enforcement Team returns to court those participants who abscond from the treatment facility. Because relapse often occurs during the recovery process, DTAP has a selective readmission policy for those who express a genuine desire to continue treatment and pose no threat to the provider or community. If the defendant successfully completes treatment, the charges are dismissed. Because employment is so important to the ongoing sobriety and social stability of the DTAP participant, the program has a Business Advisory Council, an employment specialist, and a job developer. As of May 1, 2007, 2,493 defendants had been accepted into the program since its inception; 1,013 had completed the program and had had their charges dismissed; and 389 were still in treatment. (For further information on DTAP, see DTAP’s Sixteenth Annual Report, available at http://www.brooklynda.org ).

The NationalCenter on Addiction and Substance Abuse (CASA) at ColumbiaUniversity, conducted a five-year evaluation of DTAP. According to CASA’s findings, DTAP participants (dropouts and graduates) are 67% less likely to return to prison two years after leaving the program than are comparable individuals two years after leaving prison. And if one looks at just the DTAP graduates, they are 87% less likely to return to prison than comparable non-diverted individuals. DTAP graduates are also three and one-half times likelier to be employed than they were before their arrest. These results are achieved at half the cost of incarceration.

Now, several district attorneys throughout New YorkState, including all those in New York City, have implemented DTAP programs. These programs are complemented by the presence of drug courts. New YorkStat’s first drug court opened in 1995 (five years after DTAP’s launch), and these courts currently exist in every county of the state. Drug courts, like DTAP, use the threat of incarceration –- “legal coercion” -– and careful monitoring to encourage offenders to stay in treatment. However, because repeat felony offenders pose a greater risk to the community than misdemeanants or first-time felony offenders, it makes sense for this predicate population to be diverted into treatment by participating in DTAP, rather than a drug court. The prosecution’s involvement in the DTAP program, the use of the warrant enforcement team to return absconders, and the program’s exclusive reliance on intensive residential treatment all combine to ensure that the risk to public safety is kept at a minimum.

Recently, two well-respected voices have advocated a re-assessment of how our society uses incarceration to deal with crime, especially drug crime. The Vera Institute of Justice published in January, 2007, a report by Don Stemen, Reconsidering Incarceration: New Directions for Reducing Crime, which cogently concludes that policymakers should “look beyond incarceration for alternative policies that not only may be able to accomplish the important task of protecting public safety, but may do so more efficiently and more effectively.” And Joseph A. Califano, Jr., former U.S. Secretary of Health, Education and Welfare, and now chairman and president of the National Center on Addiction and Substance Abuse (CASA) at Columbia University, in his new book, High Society, calls for a “top-to-bottom restructuring of the nation’s criminal justice systems” and a “revolution” in how we view crime and punishment. “We must take steps,” he insists, “to ensure that offenders who are likeliest to become sober citizens enter treatment, that they stay there long enough, and that they maintain their sobriety.”

I urge my fellow prosecutors to join in this rallying cry. Between 1970 and 2005, state and federal authorities increased prison populations by 628 percent, but many states are now realizing that we cannot prison-build ourselves to a safer society. And because public safety is the ultimate goal, district attorneys should take the lead in implementing proven, cost-effective alternatives to incarceration like DTAP. In March, 2007, federal DTAP legislation was introduced in Congress. Both the House and Senate versions of The Second Chance Act (H.R.1593 and S.1060) contain sections covering prosecution drug treatment alternative to prison programs. Once enacted, this DTAP legislation will authorize new federal funding for state and local prosecutors to establish and oversee drug treatment diversion programs for nonviolent offenders. This significant bipartisan legislation deserves the vigorous support of all those in the law enforcement community. Let the revolution begin with us.

America’s Prosecutors Staunchly Support DNA

Matt Redle — Thu, 12 Apr 2007 10:36:00 GMT

This commentary is an excerpt from “NDAA’s Policy Positions on DNA Technology.” Matthew Redle is a co-author of that Policy Position. Matt is County Attorney in Sheridan County, WY. and is a Member of NDAA’s Board of Directors.

The NDAA recognizes DNA testing as a powerful tool for determining the truth in criminal cases. This technology has emerged as the most reliable forensic technique for identifying criminals when biological evidence of the crime is available. The NDAA strongly supports DNA testing as a means of identifying and apprehending criminals and proving the guilt or innocence of suspects and defendants. The NDAA encourages public investment in this technology to ensure its full development as an instrument of justice.

The prosecutor is the only trial attorney in America whose primary ethical obligation is to seek justice. It is entirely consistent with this duty for the prosecutor to support the use of DNA technology in apprehending criminals, convicting the guilty and identifying the truly innocent.

America’s prosecutors consistently have embraced DNA technology as a scientific breakthrough in the search for truth. Starting in the mid-1980s, with the introduction of DNA evidence in America’s courtrooms, local prosecutors have fought for its admission in criminal trials. Prosecutors also have advocated vigorously for the expanded use of DNA technology as a highly effective method of solving crimes and identifying criminals before they can commit further offenses.

The accuracy of DNA technology is widely recognized by the scientific community. DNA technologies are used in virtually all areas of science involving molecular biology. DNA profiling has proven its scientific trustworthiness as a forensic tool for identifying the donor of biological evidence left at a crime scene – even years after the crime occurred. Furthermore, forensic DNA testing is no more invasive than fingerprinting, yet produces even more accurate results. These results produce identifying data that are relevant only for evidentiary purposes. The DNA loci used for law enforcement purposes do not code for diseases, birth defects or other private medical information.

Forensic DNA typing has had a broad, positive impact on the criminal justice system. In recent years, convictions have been obtained that previously would have been impossible. Countless suspects have been eliminated prior to the filing of charges. Old, unsolved criminal cases, as well as new cases, have been solved. Mistakenly accused defendants have been freed both before trial and after incarceration. And increasingly, the unidentified remains of crime victims are being identified.

In the years ahead, DNA technology holds enormous promise to enhance our quality of justice even more dramatically. Its potential, however, will not be fully realized unless public policy-makers act boldly in pursuit of this new technology. Significant increases in federal, state and local government resources are needed to enlarge forensic laboratory capacity, to fund the advancement of new DNA technologies, to expand DNA databases, and to provide training for participants in the criminal justice system. No other investment in our criminal justice system will do more to protect the innocent, convict the guilty and reduce human suffering.

DNA profiling has proven its trustworthiness as a forensic tool for identifying the donor of biological evidence left at a crime scene. Its reliability for evidentiary purposes in criminal trials is likewise beyond question. The prestigious National Academy of Sciences’ National Research Council has twice been called upon to judge the reliability of forensic DNA testing. On both occasions the National Research Council endorsed the use of DNA testing in criminal investigations and prosecutions. The National Research Council concluded that "[t]he technology for DNA profiling and the methods for estimating (population) frequencies and related statistics have progressed to the point where the reliability and validity of properly collected and analyzed DNA data should not be in doubt."

With the use of DNA evidence, prosecutors are often able to conclusively establish the guilt of a defendant in cases where the identity of the perpetrator is at issue. Prosecutors and law enforcement agencies also utilize DNA technologies to exonerate the innocent. It is our view that this powerful weapon against the criminal offender is best used when such resources are made fully available in the earliest stages of an investigation and before a conviction.

In October 1998, the Combined DNA Index System (CODIS) went on line. CODIS is a series of local, state and federal databases which, when combined, creates a national databank of DNA profiles. This system enables state and local law enforcement crime laboratories to exchange and compare DNA information electronically. Through this process, law enforcement agencies have the ability to identify possible suspects when no prior suspect existed. CODIS represents a major advancement in law enforcement. It merits full funding and strong support by policy-makers at all levels.

JUVENILE OFFENDERS
Juveniles perpetrate many of the most serious criminal offenses. Oftentimes these offenders are not amenable to rehabilitative programs that might be available through juvenile courts. Too often those juveniles, who have committed offenses classified as felonies in adult court, re-offend. The cost to the community and particularly the victim is no less because the offender is a youth. Further, offender databases are well suited to include juveniles, as the profiles contained within the database are not identified by name or age.

PERSONS FOUND NOT GUILTY BY REASON OF INSANITY
Occasionally individuals who commit crime, even the most serious of crimes, are excused from criminal liability because they suffer from serious mental illnesses. These individuals while determined to be not guilty, may be placed in appropriate institutions or under supervision to provide treatment to the individual and to protect the general public. In some instances these individuals may have committed other crimes still undetected besides those for which the criminal act was excused. The inclusion of their profile in the offender database and its subsequent link to another crime, while perhaps not permitting a successful criminal prosecution, would provide information and closure to some victims of crime. Of additional importance, the identification of these individuals as having perpetrated these offenses will provide additional information to those charged with their treatment. Finally, the determination that a crime is attributable to the act of an individual not legally responsible for that act closes the case and frees up law enforcement, and laboratory resources that might otherwise continue to be dedicated to finding a solution to the crime.

ARRESTEES
Due to its exquisite ability to identify individuals by the biological material they may leave at a crime scene, DNA is often analogized to fingerprints. It is standard police practice to collect the fingerprints of individuals arrested for certain offenses. DNA testing provides an unequivocal means of identifying an individual and should be utilized in the same manner as fingerprinting.

Law enforcement should take full advantage of DNA as a powerful and reliable investigative tool. The results of such testing effectively serve to exclude innocent persons and identify individuals who are committing crimes. Taking DNA samples upon arrest serves the public interest and the cause of justice. It makes sense to keep this legitimately obtained information on file and use it to solve cases.

DISCOVERY AND PRE-TRIAL TESTING
DNA testing by qualified forensic laboratories produces highly reliable results. Therefore, the need to retest biological evidence during the pre-trial discovery process should be very limited. Such testing should be provided, however, where a defense request is timely and relevant and would provide material assistance to the defense.

Courts should require that the defense be held to the same high standards as the prosecution in the testing or re-testing of DNA evidence. Tests should be conducted by laboratories that meet standards of the DNA Advisory Board and the relevant guidelines of the Scientific Working Group on DNA Analysis Methods. Adherence to such standards by the prosecution and the defense ensures the accuracy and quality of testing results and enhances the truth-finding function.

The defense should be subject to the same discovery standards as the prosecution in providing access to the results of DNA testing or retesting and other related, relevant information.

PROSECUTION INITIATED DNA TESTING
America’s prosecutors have employed DNA technology as a valuable tool in seeking the truth and ensuring that justice is done in every case. Prosecution offices around the country have been at the forefront in using this powerful new tool for justice. One approach by a number of prosecution offices has been to initiate reviews of past convictions to determine if DNA evidence sheds new light on these cases. Such programs can serve to strengthen public confidence in the criminal justice system.

THE WRONGFULLY EXONERATED

Joshua K. Marquis — Thu, 15 Mar 2007 18:22:00 GMT

THE WRONGFULLY EXONERATED

By Joshua Marquis, District Attorney, Clatsop Co. OR

(A version of this originally was published as an OP-ED in the New York Times)

Over the years, many TV shows, both news and entertainment, have focused on stories about people who have been wrongfully convicted. In fact, their misplaced mission has been to perpetuate the myth that our prisons are chock full of doe-eyed innocents, usually framed by the venal prosecutors, corrupt cops, and grossly incompetent public defenders.

Early last year, news anchors and publications breathlessly reported the giddy likelihood that DNA tests would show that the state of Virginia had executed an innocent man. They were referring to Roger Coleman, executed in 1992 for the rape and murder of Wanda McCoy. After his conviction, early DNA testing placed him within one fifth of a percent of possible suspects. The governor at the time, Douglas Wilder, said he would consider commutation of Coleman if he took a lie detector test. Coleman did and he failed and was executed. But for more than a decade anti-death penalty activists have held Coleman up as the case that would prove America executed an innocent man. On January 12, 2006, the Canadian lab that had been sent the last remaining DNA sample announced the results of more advanced testing: It put the odds of Coleman not being the killer at less than 1 in 19 million. Yet while Coleman's face graced the cover of TIME magazine when the height of the controversy swirled, it is unlikely you will see his face on the cover again for his rightful conviction.

Newspapers across America continue to cite an epidemic of wrongful convictions. They feature poignant stories of men snatched from the doors of the death chamber by threadbare but plucky law students. Hollywood movies with titles like "True Crime" and "True Believer" feature similar characters.

American popular culture loves the underdog. Thousands of law students aspire to be Atticus Finch, the famous fictional lawyer from "To Kill A Mockingbird." One of the jurors who acquitted actor Robert Blake of murder cited the TV program "CSI" as the basis of her knowledge of what good police work should be. An article in Scientific American implied that more than 100 death row inmates were saved only by DNA testing.

If we can tear ourselves away from the "man bites dog" stories for a moment, take a deep breath and examine the state of justice in America, a very different picture will emerge.

To start, the actual number of people taken off death row by DNA is under 10.

The "thousands of Americans wrongfully convicted" exist primarily on Planet Hollywood. In a study published in the Winter 2005 Journal of Criminal Law, University of Michigan Professor Samuel Gross and his team of five lawyers and students were able to document 340 exonerations from 1989 to 2003 after painstaking research. The cases ranged from robbery to capital murder. They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as exonerations. Gross and others claim that despite their exhaustive research they are certain even more innocents languish undiscovered in prison.

Let's give the professor the benefit of the doubt. Let's assume for the moment that he found that he understated the innocents by roughly a factor of 10 that instead of 340 there were 4000 people who didn't do it, weren't involved in the crime in any way. During that same 15-year period there were over 15 million felony convictions across the country. That would make the error rate .27% -- or, to put it another way, a success rate of 99.73%.

Most industries would like to claim such a record of efficiency. Yet many commentators would agree with former Illinois Governor George Ryan, who emptied all 167 killers off his state's death row after he announced he couldn't tolerate a system that wasn't "100% accurate." Ryan made his announcement days before leaving office and shortly before he was indicted on federal corruption charges for which he now stands trial. Presumably he, like most criminal defendants, would like his jury to reach such an impossible standard in order to convict him.

Journalists can be forgiven the appeal of the rare story where an innocent man or woman is sent to prison because, as all reporters know, how many planes landed safely today has never been news.

The larger issue is whether those who influence the culture, such as enormous television networks, have a moral responsibility to set the facts straight regardless of their thirst for drama. For example, last year ABC launched a new entertainment show “In Justice” that focused on a team of lawyers who proved the innocence of wrongfully convicted criminals. The distinct and dangerous impression these types of shows have is that wrongfully convicted death row inmates are the virtual rule.

The words "innocent" and "exonerated" carry tremendous emotional and political weight. But these terms have been tortured beyond recognition, not just by defense lawyers, but by the disseminators of entertainment under the guise of social conscience.

"The Exonerated" played for several years Off Broadway with a Who's Who of stage and screen stars portraying six supposedly innocents who were once on death row. The play, originally subsidized by anti-death penalty advocate and billionaire philanthropist George Soros, now tours college campuses and was made into a TV movie by CourtTV.. The script never mentions were that two of the play's six characters (Sonny Jacobs and Kerry Cook) had been found guilty of second degree murder based on their no contest and guilty pleas; and a third (Robert Hayes) was unavailable to do publicity tours because he had pled guilty to another homicide almost identical to the one of which he was acquitted (at his second trial after some DNA evidence had been excluded)..

American justice is a work in progress and those of us charged with administering it are well aware that it needs constant improvement.

But nothing is gained by deluding the public into believing that, but for Mark Geragos , Bruce Cutler, or the highly fictional crusaders of "Injustice," that any of us could be packed off to prison for no reason. Any experienced defense lawyer will concede they'd starve if they only accepted "innocent" clients

The real risk to most Americans are the wrongfully freed, not the wrongfully convicted, in real life about as common as the incidence of Human rabies in the United States...

What Do Prosecutors Do?

Robert McCulloch — Tue, 13 Feb 2007 23:48:00 GMT

What Do Prosecutors Do?

By Robert P. McCulloch

Prosecuting Attorney of St. Louis County, MO, and Past President of NDAA and

(Originally Published in American Legion Magazine)

Back in the 1940s and early ‘50s, in what many regard as the “golden era” of radio drama, one of the more popular programs was “Mr. District Attorney,” which began with the announcer saying, “It shall be the duty of the district attorney, not only to prosecute all crimes committed within his jurisdiction but to defend with equal vigor, the rights and privileges of all its citizens.”

Today, the popular TV program, “Law and Order” begins with the announcement, “In the criminal justice system, the people are represented by two separate and important groups – the police who investigate crime and the district attorneys who prosecute the offenders…”

Interestingly, the earlier description of the district attorney’s mission is more accurate than the second, more recent one. Yes, we do prosecute criminals, but that’s not all we do. Our overriding responsibility is to seek truth and justice, regardless of where that search may lead - whether it results in prosecution and conviction, or in some cases, exoneration. This is a far cry from the distorted and frankly, dishonest image spread by such radio and TV programs as “Perry Mason,” in which private investigator Mason continuously outwits the DA, portrayed as the “heavy”, interested only in sending people to jail.

Our title varies among the states. But whether we’re called “district attorney” – the most familiar term -- or “commonwealth’s attorney”, “prosecuting attorney”, “state attorney”, “county attorney”, or, as in South Carolina, “solicitor” an historic title tracing back to the colonial period, we are, in fact, the people’s attorney – the only public officials specifically elected in 45 states and appointed in the others to represent you in fighting crime.

As prosecutors, we are unique in the law profession. We have only one client, although a collective one: you, the people in our jurisdictions. Our primary responsibility is to protect the rights and safety of the people we serve, including the victims. When you read the familiar criminal charge: “The people of the State of (name) vs. (the defendant), the “people’s” case is presented in court by the prosecutor.

As a general rule, defense attorneys have considerable leeway in making out-of-court statements during a trial, while prosecutors are severely limited by professional ethics standards in what they can say publicly beyond basic explanation of the charges and related information until after the trial is completed. Too often a DA’s obligatory refusal to comment beyond these basic explanations is misconstrued as an effort to hide something.

Although you may see analysts identified as “former federal prosecutors” discussing local crimes on TV talk shows, the fact is that your local district attorney, and his or her counterparts across the country, prosecute more than 95 percent of the crimes in the United States. They also work just as hard to prevent crimes and to rehabilitate young first-time offenders to help them along the path to good citizenship. They are uniquely qualified to do this because they live, work and raise their families in the jurisdictions they serve. They know the territory.

Thus, district attorneys are community leaders, working with civic, religious and educational organizations as well as with social workers and other professionals, often on their own time, to address the roots of crime and make their communities better places in which to live and raise families. While prosecuting criminals, they also work with the victims and their families, addressing their concerns and often assisting them in coping with the violent death of a loved one.

When the people’s safety and interests are threatened, they need a champion. Prosecutors fill that role, sometimes at considerable political risk.

When Paul Gallegos, district attorney of Humboldt County in northern California --- timber country --- decided that Pacific Lumber had apparently lied to state regulators during a 1999 agreement that capped a decade-long battle to save the state’s (which meant the people’s) remaining stands of giant redwoods not already protected in parks or reserves, he and his top assistant filed a civil fraud case against the powerful timber firm. Gallegos contended that the fraud had allowed Pacific Lumber to harvest about $40 million worth of the irreplaceable redwoods each year on 211,000 acres that were supposed to be protected under logging restrictions as part of the 1999 deal. This cost taxpayers $480 million, the Los Angeles Times reported.

The immediate result was a well-financed recall campaign to boot Gallegos out of his job. When it was disclosed that Pacific Lumber had paid $8 a signature to fill out petitions needed to qualify the recall for the ballot and that the timber company and its contractors had contributed more than 80 percent of the money -- $266,000 and still counting at election time – for the recall campaign, the voters of Humboldt County quickly figured out what was going on and who their real friend was. They voted overwhelmingly to retain DA Gallegos, despite what the Times described as “an intensive campaign of radio, TV and direct mail advertisements that portrayed Gallegos as soft on crime and a friend of illegal tree-sitters, rapists and pot growers.” Gallegos rightfully called his victory “a triumph of the people over the influence of money and lies in politics.”

Today’s real-life prosecutors work with the police forces in their jurisdictions in coordinating anti-crime efforts, as well as with federal authorities in multi-jurisdictional situations such as terrorism. As the scope and sophistication of crimes change and increase, prosecutors have created specialized units to deal with such situations as cyber crime, domestic and child abuse, drug trafficking and gangs. They also use the latest technical tools, including computerization and DNA, to ensure that justice is served. They do all this much too often without regard to what should be a sensible workday or workweek, often with inadequate budgets and lean staffs. Approximately 24 percent of the local prosecutors in the United States serve part-time. As a group, prosecutors – except for a very few in the largest metropolitan jurisdictions -- are paid much less than a brand-new law school graduate earns in his or her first job with a large law firm. Obviously they’re not doing it for the money.

Across the country approximately 2,350 local prosecutors’ offices try felony cases in state courts. Some, like those in New York, Los Angeles and Chicago, have hundreds of attorneys, while others – the vast majority – are much smaller. In fact, in a number of rural counties, the prosecutor isthe staff. The median staff size of local prosecutors’ offices in the U.S. is only nine, which includes attorneys and support staff alike. While much emphasis has been placed over the last decade in beefing up police forces or building more prison cells, the median size of prosecutors’ offices has increased by only one person. Ironically, the increase in prosecutors’ staff lags far behind the pace of constructing more jail cells to house the criminals they have convicted.

With increasing caseloads and expanding services - victim witness and youth crime prevention, for example - prosecutors face immense challenges in allocating their time. In my jurisdiction, I work with police on a variety of issues, from evidence collection to training. As a community leader I spend considerable time in community support and crime prevention programs, as well in victim assistance. All this requires more time in management and caring for our staff – the key element in any office.

I still, however, personally try cases, as a reminder to myself and my staff of our primary obligation to the people of our county.