The Impact of Prosecutorial Misconduct, Overreach, and Misuse of Discretion on Gender Violence Victims

Article (PDF Available)inPenn State Law Review 123:627 · May 2019with 26 Reads
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Abstract
Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless , prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are not aberrations, or merely the poor choices of a few "bad apples," but a result of overreliance on the criminal legal system to address intimate partner violence. These choices also reflect the extent to which prosecutors have embraced the stereotype of the "perfect victim ." The operation of absolute immunity for actions that prosecutors undertake in the context of their roles as advocates ensures that some actions-including arresting victims, misleading courts, and filing retaliatory cases against victims-are upheld by courts, though these actions might appear to be misconduct to those outside the justice system.
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The Impact of Prosecutorial
Misconduct, Overreach, and Misuse of
Discretion on Gender Violence Victims
Leigh Goodmark*
A
BSTRACT
Prosecutors are failing victims of gender violence as wit-
nesses and when they become defendants in cases related to their
own victimization. But it is questionable whether that behavior
should be labeled misconduct. The vast majority of these behav-
iors range from misuses of discretion to things that some might
consider best practices in handling gender violence cases. None-
theless, prosecutors not only fail to use their discretion appropri-
ately in gender violence cases, but they take affirmative action
that does tremendous harm in the name of saving victims and
protecting the public. The destructive interactions prosecutors
have with victims of gender violence are not aberrations, or
merely the poor choices of a few “bad apples,” but a result of
overreliance on the criminal legal system to address intimate
partner violence. These choices also reflect the extent to which
prosecutors have embraced the stereotype of the “perfect vic-
tim.” The operation of absolute immunity for actions that prose-
cutors undertake in the context of their roles as advocates
ensures that some actions—including arresting victims, mislead-
ing courts, and filing retaliatory cases against victims—are up-
held by courts, though these actions might appear to be
misconduct to those outside the justice system.
T
ABLE OF
C
ONTENTS
I
NTRODUCTION
............................................... 628
R
I. V
ICTIMS OF
G
ENDER
V
IOLENCE AS
W
ITNESSES
....... 634
R
A. Prosecutorial Attitudes Towards Gender Violence . 634
R
* Professor of Law and Director, Gender Violence Clinic, University of Maryland
Francis King Carey School of Law. My thanks to the Dickinson School of Law,
Pennsylvania State University for inviting me to participate in this Symposium,
and to Marc Wagner, Doris Baxley, Michael Slobom, and the editors of the Dickin-
son Law Review for their work on this Article. Thanks also to Chelsea VanOrden
and Monica Gasey for their outstanding research assistance.
627
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628 D
ICKINSON
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AW
R
EVIEW
[Vol. 123:627
B. No-Drop Prosecution ............................. 636
R
C. Material Witness Warrants ........................ 638
R
D. Perjury ............................................ 640
R
II. V
ICTIMS OF
V
IOLENCE AS
D
EFENDANTS
.............. 643
R
A. Overcharging and Over-Sentencing ................ 644
R
B. Post-Conviction ................................... 649
R
III. P
ROSECUTORIAL
I
MMUNITY AND THE
L
INE
B
ETWEEN
P
ERMITTED AND
I
LLEGAL
C
ONDUCT
.................. 650
R
IV. C
ORRECTING
P
ROSECUTORIAL
O
VERREACH
.......... 654
R
A. Victims as Witnesses .............................. 654
R
B. Victims as Defendants ............................. 657
R
C
ONCLUSION
................................................. 659
R
I
NTRODUCTION
On November 2, 2014, Renata Singleton’s boyfriend, Vernon
Crossley, grabbed Ms. Singleton’s cell phone during an argument
and destroyed the phone.
1
The police were called and arrested
Crossley.
2
Shortly thereafter, the Orleans Parish District Attor-
ney’s Office contacted Ms. Singleton.
3
Ms. Singleton informed the
Orleans Parish District Attorney’s Office that she was not inter-
ested in participating in prosecution. Ms. Singleton had three chil-
dren and a new job. She did not want to spend what little spare
time she had on a criminal case involving a man with whom she was
no longer involved.
4
Nonetheless, on April 21, 2015, the Orleans
Parish District Attorney’s Office delivered two “subpoenas” to Ms.
Singleton, ordering her to speak with the District Attorney’s Office
on April 24, 2015. The documents stated, “A FINE AND IMPRIS-
ONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS
NOTICE.”
5
Those “subpoenas,” however, were not legally binding
documents issued by a court. Instead, the documents were
fabricated by the District Attorney’s office, designed “to coerce vic-
tims and witnesses into submitting to interrogations by prosecutors
outside of court.”
6
After a friend in law enforcement told Ms. Sin-
1. Complaint & Jury Demand at 33, Singleton v. Cannizzaro, No. 2:17-CV-
10721 (E.D. La. Oct. 17, 2017) [hereinafter Complaint & Jury Demand].
2. Id.
3. Id.
4. Id. at 33–34.
5. Sarah Stillman, Why Are Prosecutors Putting Innocent Witnesses in Jail?,
N
EW
Y
ORKER
(Oct. 17, 2017), https://bit.ly/2ywWVAv [https://perma.cc/M3KD-
Q8W3].
6. Complaint & Jury Demand, supra note 1, at 2. For a photograph of one of
these documents, see Tim Morris, District Attorney’s ‘Fake Subpoenas’ Degrade the
Legal Process,
N
OLA
.
COM
(Apr. 27, 2017), https://bit.ly/2Be4JaZ [https://perma.cc/
657X-3V9P].
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P
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M
ISCONDUCT AND
G
ENDER
V
IOLENCE
629
gleton that she had not been properly served with a subpoena, Ms.
Singleton decided not to attend the meeting.
7
On April 24, 2015,
Orleans Parish Assistant District Attorney, Arthur Mitchell, asked
the Orleans Parish Criminal District Court to jail Ms. Singleton as a
“material witness.”
8
Mitchell told the court that Ms. Singleton
failed to appear pursuant to a valid subpoena.
9
Judge Robin Pitt-
man issued an arrest warrant and set Ms. Singleton’s bond at
$100,000. Judge Pittman based Ms. Singleton’s bond on Mitchell’s
statements to the court.
10
On May 29, 2015, aware of the outstanding warrant for her ar-
rest, Ms. Singleton went to the Orleans Parish District Attorney’s
Office and told Mitchell that she would not answer questions with-
out an attorney present.
11
Mitchell responded, “You’re the victim.
You don’t get a lawyer.”
12
Ms. Singleton was arrested, handcuffed,
and taken to the Orleans Parish Prison.
13
This arrest was Ms. Sin-
gleton’s first, and she was afraid for herself, for her children, who
had been left without a parent in the house, and for her new job,
which she worried she would lose.
14
Because Ms. Singleton could
not pay the $100,000 bond, she remained in Orleans Parish Prison
for the next five days.
15
On June 2, 2015, Ms. Singleton finally ap-
peared before a judge—dressed in an orange jumpsuit, shackled
hand and foot, chained to the other people appearing before the
court that day.
16
She was released on a reduced bond of $5,000 and
given a curfew and an ankle monitor.
17
Mr. Crossley, who was arrested for destroying Ms. Singleton’s
phone, had a different experience with the justice system. His bond
was initially set at $3,500.
18
Crossley paid the bond and was re-
leased on the day that he was arraigned.
19
He pled guilty to two
misdemeanors.
20
He did no jail time.
21
And because he pled guilty,
7. Complaint & Jury Demand, supra note 1, at 34.
8. See infra Part I.C.
9. Complaint & Jury Demand, supra note 1, at 34.
10. Id. at 35.
11. See id. at 35–36.
12. Stillman, supra note 5.
13. Complaint & Jury Demand, supra note 1, at 36.
14. Id.
15. Id. at 3.
16. Id. at 37.
17. Id.
18. Id. at 3.
19. Id.
20. Id. at 5.
21. Id.
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[Vol. 123:627
the Orleans Parish District Attorney’s Office never needed Ms. Sin-
gleton to testify against him.
22
Renata Singleton was not the only victim of gender violence
23
subjected to arrest and incarceration as a result of a material wit-
ness warrant in Orleans Parish. The Orleans Parish District Attor-
ney’s Office requested and received material witness arrest
warrants for a victim of child sex trafficking, who was held for 89
days, and a rape victim, held for 12 days.
24
In some cases, these
victims were held in the same prisons as those arrested for crimes
against them.
25
Orleans Parish District Attorney Leon A. Cannizzaro, Jr. de-
fended his office’s use of what some would call extreme tactics to
compel witness cooperation. When asked about jailing victims of
rape as material witnesses, Cannizzaro responded, “If I have to put
a victim of a crime in jail, for eight days, in order to . . . keep the
rapist off of the street, for a period of years and to prevent him
from raping or harming someone else, I’m going to do that.”
26
Can-
nizzaro described the use of arrest as an “inconvenience.”
27
A
spokesman for his office maintained that in some cases, the only
alternative to making an arrest is dismissal of the case, which the
office will not do.
28
Cannizzaro specifically justified the request for
an arrest warrant in one domestic violence case on the grounds that
the victim was no longer cooperating with prosecutors.
29
Orleans Parish Assistant District Attorney Chris Bowman de-
scribed the use of fraudulent subpoenas as office “policy,” explain-
ing that “[m]aybe in some places if you send a letter on the DA’s
22. Id. at 37.
23. Gender violence refers to harm that is inflicted as a result of a person’s
gender, gender identity, or gender expression, or is created or exacerbated by gen-
der hierarchy or gender-related privilege or oppression. Leigh Goodmark, CON-
VERGEing Around the Study of Gender Violence: The Gender Violence Clinic at
the University of Maryland Carey School of Law, 5
U. M
IAMI
R
ACE
& S
OC
. J
UST
.
L. R
EV
. 661, 662–63 (2015).
24. Complaint & Jury Demand, supra note 1, at 29–30. The victim of child
sex trafficking lost her housing and custody of her child as a result of being incar-
cerated. See id.
25. See Joel Gunter, Why Are Crime Victims Being Jailed
?
, BBC News (May
6, 2017), https://bbc.in/2ScEX0a [https://perma.cc/SF8A-MBHG].
26. Jenavieve Hatch, District Attorney Defends Jailing Rape Victims Who
Won’t Testify,
H
UFF
P
OST
(Apr. 29, 2017), https://bit.ly/2DOoXd3 [https://perma.cc/
G9LG-G2WD].
27. Gunter, supra note 25.
28. Stillman, supra note 5.
29. Charles Maldonado, Orleans Parish Prosecutors Are Using Fake Subpoe-
nas to Pressure Witnesses to Talk to Them,
L
ENS
(Apr. 26, 2017), https://bit.ly/
2S0WSYD [https://perma.cc/5RDF-HYPP].
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2019]
P
ROSECUTORIAL
M
ISCONDUCT AND
G
ENDER
V
IOLENCE
631
letterhead that says, ‘You need to come in and talk to us,’ . . . that is
sufficient. It isn’t here. That is why [it] looks as formal as it
does.’
30
Cannizzaro claimed that no one had ever been arrested as
a result of the failure to comply with a fraudulent subpoena.
31
The
federal lawsuit filed on behalf of Renata Singleton and other crime
victims alleges that at least ten arrest warrants were issued based on
prosecutors’ assertions that witnesses had failed to appear in re-
sponse to these subpoenas, and six witnesses were jailed.
32
The Orleans Parish District Attorney’s Office’s policy of using
fake subpoenas to justify the arrest of material witnesses is extreme.
But Cannizzaro is at the outer reaches of a long line of prosecutors
using legal process to compel victim participation in cases involving
gender violence.
33
Prosecutors justify these tactics in two ways: ei-
ther by claiming that the rule of law and public safety demand that
victims of gender violence participate in prosecution, or by assert-
ing a desire to safeguard the victim—to save the victim’s life. This
spectrum of prosecutorial overreach is the most extreme manifesta-
tion of the ongoing push to take gender violence “seriously.”
34
That push seems to end, however, when victims become de-
fendants. Orleans County provides another example. In March
2005, Catina Curley shot and killed her husband, Renaldo Curley,
after Mr. Curley physically and emotionally abused both Ms.
Curley and her children for a decade.
35
Mr. Curley kicked Ms.
Curley so hard that he dislocated her shoulder.
36
He broke her
nose.
37
He attempted to push Ms. Curley out of a moving car.
38
He
strangled Ms. Curley while hitting her in the face.
39
Mr. Curley also
bit Ms. Curley, leaving visible marks on her skin.
40
Ms. Curley’s
children could not count how many times they had seen their father
30. Id.
31. See Complaint & Jury Demand, supra note 1, at 17 (citing Paul Murphy,
Practice of Fake Subpoenas to Be Stopped by Orleans DA, 4
WWL
(Apr. 27, 2017),
https://bit.ly/2RwIi5S [https://perma.cc/S65A-Y74P]).
32. Id.
33. See infra Part I.
34.
L
EIGH
G
OODMARK
, A T
ROUBLED
M
ARRIAGE
: D
OMESTIC
V
IOLENCE AND
THE
L
EGAL
S
YSTEM
110–13
(2012) [
hereinafter
G
OODMARK
, A T
ROUBLED
M
ARRIAGE
]
.
35. Josie Duffy Rice, New Orleans Woman Sentenced to Life in Prison for
Killing Abusive Husband Is Granted New Trial,
A
PPEAL
(July 27, 2018), https://
bit.ly/2AnoAXg [https://perma.cc/6WHQ-KEP8].
36. See id.
37. See id.
38. See id.
39. Id.
40. Id.
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  • ) (dismissing claims against a Harris County prosecutor who allegedly made false statements to secure material witness warrant against Jane Doe, which resulted in her being incarcerated and assaulted by both inmates and guards). 204. Adams, 656 F
    • Id
    Id. at 405; see also Doe v. Harris Cty., No. H-16-2133 (S.D. Tex. Sept. 29, 2017) (dismissing claims against a Harris County prosecutor who allegedly made false statements to secure material witness warrant against Jane Doe, which resulted in her being incarcerated and assaulted by both inmates and guards). 204. Adams, 656 F.3d at 406. 205. Loupe v. O'Bannon, 824 F.3d 534 (5th Cir. 2016).
    • Michelle Madden Dempsey
    • Prosecuting Domestic
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    MICHELLE MADDEN DEMPSEY, PROSECUTING DOMESTIC VIOLENCE: A PHILOSOPHICAL ANALYSIS 208 (2009).
  • Prosecutors Need a Watchdog
    • Editorial Bd
    Editorial Bd., Prosecutors Need a Watchdog, N.Y. TIMES (Aug. 14, 2018), https://nyti.ms/2Pc0aDh [https://perma.cc/JSA8-6KWP].
  • New York's Prosecutorial Misconduct Review Panel Could Be Groundbreaking, SLATE
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    See Maura Ewing, New York's Prosecutorial Misconduct Review Panel Could Be Groundbreaking, SLATE (Aug. 28, 2018), https://bit.ly/2wtSgxb [https:// perma.cc/B4GK-RY3U].