when i entered law school, it was around the time the violence against women act was signed. i immediately joined the domestic violence clinic. participants in the clinic were trained and became certified as domestic violence advocates. we also gathered data for a narrative study on domestic violence. the latter project was hard work (and later i would also conclude it was problematic). we would work four-hour shifts from midnight until 4 a.m. in the public hospital's ER on friday and saturday nights. those were the times where incidents of domestic violence were most prevalent. we worked closely with the ER staff. they would pre-screen cases they thought might be domestic related. between treatment or before discharge, we would interview the women (always women) for their stories. i ultimately stopped working on the project for a variety of reasons: my schedule changed, the shift times were hard, the content was hard, and i felt increasingly uncomfortable asking women to tell their most intimate confessions to a total stranger while in an extremely vulnerable position, especially when most of those total strangers were white upper class women and the patients were poor black women. i concluded on my own that the data was tainted and further victimizing. it was never my commitment to the issue of domestic violence that kept me from the project.

when i would become a public defender years later, i was asked in my second interview, "what type of case would you least likely want to defend." i knew the answer immediately, "domestic violence." i explained that although i was a professional and would be able to handle any case required of me, i had to be honest that i had a bias against domestic violence cases. i should not have been surprised when after only a year with the office, i was transferred to the domestic violence division. i expected to hate my job. let me re-phrase that. i expected to hate my clients. i never expected to sympathize with them or come to hate the domestic violence laws as they are now.

over the years, the issue of domestic violence has become increasingly more funded, better advocated, and more understood. as the result, the laws have become broader and broader. although i do not have any empirical data, i can anecdotally state that the increase in domestic violence laws have done nothing to aleviate the problem, and instead are creating greater injustices in the criminal justice system. a larger and larger net is being cast over young black poor men in our country. the domestic violence laws are just another tool of oppression over them.

the "real" cases of domestic violence are still not getting prosecuted. i watch women come in with severe injuries. they cry before the judge as they tell their stories of years of abuse, they get complaints filed and emergency orders of protection. warrants are issued for their abuser's arrest. then two weeks later they are back in front of all of us. smiling. saying they want to drop the charges. or not showing up at all. i'm sure he apologized. said it would be different.

sure. the new laws have allowed for "evidence-based" prosecutions, but these can only happen in very rare situations where there are either 1) third party eye witnesses, or 2) the defendant confesses to the beating. it doesn't take a rocket scientist to see why these are rare. domestic violence is, by nature, a crime that happens in private. beyond that, there is really nothing more that can be done. we have some very important constitutional protections that (although have been eroded significantly) are still holding on by a thread. such as the right to confront your accused.

even these e-based prosecutions are leading to greater criminal justice violations. for example, if the police have a reluctant victim yet can get a prosecution with a confession, what do you think they will do? that's right...get a confession. without miranda warnings. through manipulative (or downright coercive) ways. however, i must admit that despite suing police officers for 6 years and having a bias against police, the large majority of police officers who handle domestic cases are the best i've ever worked against and with. they are patient, kind, and shockingly honest. if they didn't see injuries, they won't say they saw injuries. they won't put words in anyone's mouths. i have used police officers in my case more than any other type of misdemeanor case. as a consequence, when they tell me the woman was frightened and had a black eye and my client was being an ass, i believe them and i can confront my client about it. cut through some bs and get to the heart of the case faster.

what about the third-party eyewitness case? surely, you may say, these have no problems attached to them. think again. i'll give you an example of a case i handled recently. my teenage client and his girlfriend, who are black, were in a predominantly white neighborhood. they went to dinner, bought tickets for a movie, had some time to kill, so they decided to walk around for a while until their movie started. they were horsing around. flirting in a physical way. poking each other. wrestling. teasingly putting each other into headlocks. chasing each other. it was mutual. it was consensual. it was non-violent. to them. but to the upper class middle-aged white woman who came across their path briefly on a dark street, they were in a fight. she called the police. she talked to the police first. white police. they immediately separated the two. the girlfriend started crying. my client kept asking what was going on. the police told the girlfriend what had happened. they didn't ask her. she kept trying to tell them that nothing was wrong. through her tears. to anyone who would listen. no one would listen to her. they would only listen to the older white woman. they missed their movie.

the case came to trial. the "victim" was my witness. before the trial, i tried talking to the older woman who was the witness for the prosecution. in my most delicate way, i suggested that perhaps due to cultural and age differences that she perceived something was happening that really wasn't. she immedately became defensive. she accused me of playing "the race card" and didn't i know she marched with king in the 60s? she wouldn't listen to me. she wouldn't even consider that she was wrong. she was proud of the good deed she was doing. the state put on their case. full of the woman's self-congratulatory testimony and exaggerations. i put on my case. the state objected to every question i asked of the girlfriend. the judge sustained all their objections (at the time, the judge did not understand evidentiary law as it related to hearsay statements very well and i admittedly did not have the case law readily at hand. i thought it was elementary). i couldn't get out the girlfriend's story. again. even though i had the law on my side. the judge had spoken. i gave the best closing argument i've given in my career that day. my theme was the silencing of a young black woman. she was silenced by the state's witness. she was silenced by the police. and she was silenced by the judge. i could hear the girlfriend sobbing louder and louder through my closing argument to the point where i was getting choked up and more motivated in what i was saying. it was of no use. the judge found my client guilty. in her ruling, the judge put all the weight into the third-party eyewitness and almost broke her back thanking her for being so courageous in coming forward. i wanted to vomit. the girlfriend was sobbing in court. saying, "what about me?" until she was escorted out of the courtroom. afterwards the judge (a black woman herself) leaned to me and said, "she's just upset because he's going to jail." i looked at her with utter disgust and said, "no. she's upset because no one would listen to her. did you hear anything i said either?"

which is part of the larger problem that i've noticed with domestic violence cases that is systemically frightening. the presumption of innocence is deteriorating and the burden of proof is shifting onto the defendant. it's now presumed that if you are arrested for domestic battery, then you must be not only guilty of domestic battery, but you must be a batterer. this is a serious distinction that most judges and prosecutors do not understand: one can be arrested for domestic battery, but that does not make them a batterer. batterers follow very documented paths of increasing degrees of control and manipulation. one can hit someone, but not necessarily be a batterer. this presumption that all arrestees are batterers leads to plea bargains that are out of control.

the amount of classes that are imposed on my clients are astronomical. drug and alcohol assessments for people with no history of drug or alcohol abuse. domestic violence classes. parenting classes. and all these classes are run by private agencies with a financial incentive. the classes range from $5 to $20 a class for 16 to 36 classes (depending on what they are). if a person refuses to admit they are a batterer, they are kicked out of a class for non-compliance and subject to jail time for violating their terms of their probation. if they miss a couple classes, they are kicked out for absenteeism and in most cases, have to start from the beginning. on top of the cost of the classes, probationers have to pay monthly reporting fees and statutory fees. not to mention the initial and sometimes biggest obstacle of all: paying for transportation to get everywhere. because often the program my clients can afford are not the programs nearest them. or the ones that fit with their work schedule (if they are lucky to still be able to keep their jobs) are far away and cost more money. it's a scam. it's a financial scam off the backs of the poorest people. taxing of the indigent all in the name of domestic violence prevention.

the majority of my clients are people who plea in order to get out of jail. they are mutual-injury or no-injury cases between an ex-girlfriend and man who has a new girlfriend. the allegations are general and vague. i also have the overwhelmed mothers who did something accidental and are now firmly intrenched in the dcfs and criminal justice system, which is doing nothing for them, but adding to their feeling of being overwhelmed, mostly because they are poor. i have a few police misconduct cases. and then lastly a few "real" abuse cases: good photos, long history, witness corroboration, and a complaining witness who is fed up and is finally going forward. i have so few of those because by the time they actually are tryable, they are upgraded to felonies. or they plea out.

so what can be done to stop this abusive cycle? because it IS an abusive cycle of it's own. first of all, criminal defense attorneys need to start to be more vocal about the injustices they are experiencing with their domestic violence cases. not just against their clients, but against the attorneys themselves. we can not be afraid to speak up. it's as if to defend a "batterer" would confirm all of our deepest insecurities about what the public thinks of criminal defense attorneys. we have no problem speaking out against the death penalty, but we look the other way when injustices are being perpetrated against our clients in domestic violence courts. we need to not be so cowardly.

judges need to look at the oath they took to be impartial, weigh the evidence fairly, FOLLOW THE LAW, and not infuse their own biases into their decisions. judges need to be more courageous to say not only "not-guilty" but to say, "hey, this is not domestic battery" or "i will not find this person guilty of domestic battery, but instead, simple battery or reckless conduct." the latter allow someone a chance to still keep their record clean, get supervision, and perhaps not be labelled for the rest of their lives as a batterer. judges also need to take a good hard look at sentences. listen to what the individual and the circumstance actually warrants rather than just piling on everything under the sun and hoping that something will help, because it won't. it just sets people up for failure. sometimes a couple days in jail that the person already served is punishment enough. not everyone is right for classes.

probation departments need to put more oversight into the programs they are approving and to apply for funding to run some of the classes themselves (this is happening more in cook county, thank god). investigate programs for what they charge, what are their standards, what are the qualifications of their instructors, what are the enrollment/re-enrollment procedures, what is being taught in the classes, are the classes appropriate for the person, should reporting requirements be lessened for those in many classes, and what alternatives exist for those who simply can not pay or can not attend (such as the mentally ill). i have got to admit that actually the probation departments have been the biggest advocates for change. they work with my clients on a monthly basis. they hear their problems and struggles to comply with their sentences. they are the ones who really need the extra funding. but they aren't getting it.

prosecutors need to be willing to let up on some of their idealism and truly assess the strength of their cases. the best prosecutors i have worked with (and i currently work with one of the best of this category), can tell the "real" cases from the "jealousy" cases. they know how to dismiss a case for burden of proof problems despite what the woman wants. they give appropriate plea offers. they are flexible. they bargain. they cooperate. they are willing to do "diversion" cases (i.e. voluntary classes in exchange for a dismissal, but supervisors don't like that they don't get the conviction, so these are now being taken off the table officially). so when they are tough on other cases, i know i can trust their word that it's a good case for them. they have proven their courage and trustworthiness. however, i have only dealt with about two or three such state's attorneys. the rest think every case that comes across their desk is one that has to be prosecuted to the fullest and they are scared to death to do anything that their supervisor won't approve.

finally, agencies running theraputic programming need to be adequately educated and trained. the programs have to be adequately tailored to the issues of domestic violence (on top of the logistical issues mentioned above). often my clients are not allowed admission into the domestic violence counseling programs because they don't admit they are abusers. there are three main ways this is problematic: 1) there are many things that motivate a person to plead guilty, often the least of which is actual guilt. the highest motivator is getting released from custody. since we are in domestic violence court, everyone who is put "on paper" is required to do either domestic violence (if a dating relationship) or anger management (if family relationship) classes. therefore, if you did not commit the offense for which you were charged and you do not have a history of violence, you will not say you have a history of being abusive. makes common sense. the downside is that the court will take you into custody if you do not finish your classes. so you're forced to lie to get out of custody and lie to stay out of custody. 2) as discussed previously, someone who commits an act of violence is not necessarily an abuser. so one can honestly plead guilty to an offense they are charged with, yet still honestly say, "i am not an abuser." some of my clients who are actually guilty are extremely remorseful for their actions and are the most motivated to be in classes because they are appalled by behavior that they view as unacceptable. these individuals may have committed a one-time offense, or their behavior may be an early indicator of escalating abusive behavior. these are the ones who could potentially be saved from becoming abusers. so why would we want to keep them out of the program? and 3) abusers, perhaps by definition, do not believe they are abusers. they are in extreme denial about the cycles of abuse and the control issues they are exhibiting. the classes might actually be the first time these individuals are even learning about such issues. so the individuals who need the counseling the most are the ones who are being turned away because they are in such deep denial about being abusers. this makes no sense to me whatsoever. i try and see what possible benefits the programs may gain from keeping them out of the classes. these include only admitting those who want help and not bringing down the rest of the class with potentially obstructionist class members. nevertheless, it seems that the benefits would outweigh any potential risks.

for example, i had a client who was on intensive domestic violence probation. that tells me one of two things without looking at a single piece of paper: a) the injuries were very severe or b) he has been on regular domestic violence probation in the past (i.e he has a prior domestic battery conviction). i explained to him the first two situations as outlined above. i gave him the benefit of the doubt that he was NOT an abuser. but every time i said the words "you are not an abuser" even if the word "perhaps" was put in front of it, his girlfriend who was sitting in the room with us would visibly drop her smile and practically wince. so i explained to him the third situation as well and told him that regardless of where he fell within those three, he needed to find a way to get himself back into classes or else the judge would likely send him to jail in the alternative for violating his probation. he was between a rock and a hard place.

we need to start looking at domestic violence cases as a family problem, a community problem, not just something that the defendant needs to fix on his own or be severely punished. there are systemic issues that brought the defendant to the place he is at. whether he is guilty of the battery or not, there are a multitude of factors that have led to this moment in time. and like all other prosecutions, we need to look at why if all the well documented statistics say that domestic violence affects all classes and races, why are over 90% of the cases that i see in my courtroom against men of color?! domestic violence cases are a prime example of disparate prosecutions and sentencing. if all parties involved had a better sense of the big picture, perhaps we could make a dent on this problem (and maybe the larger disparate treatment happening in the whole criminal justice system). but instead it continues. and increases. and the net gets cast larger and larger.