by Maxine Bernstein, The Oregonian
Monday September 29, 2008, 8:54 PM
Subpoenas landed on the desks of several domestic violence victims' advocates this summer, ordering them to show up in Multnomah County Circuit Court with files containing victims' statements against alleged attackers in two pending cases.
The subpoenas sent shock waves through the county's nationally recognized domestic violence program, prompting a special team of police, prosecutors, parole officers and advocates who work together to intervene in high-risk cases to stop accepting new ones. The Domestic Violence Enhanced Response Team came to a screeching halt.
"We didn't know what to tell victims. We were unable to say 'Trust us, your information would remain confidential.' So we stopped," said Chiquita Rollins, the county's domestic violence coordinator.
Advocates argued that divulging confidential information about victims or subpoenaing records would have a "substantial chilling effect" on victims. Rollins cautioned that offenders could use information gleaned from an advocate's file to intimidate victims and keep them from testifying.
Defense lawyers countered they had the right to review victims' statements before trial. In an unusual circumstance, the Multnomah County district attorneys sided with the defense. Prosecutors demanded that the advocates' material be turned over to the defense as part of pretrial discovery.
"This was a difficult situation for us, because the advocates really are our partners in this program," said Darian Stanford, a Multnomah County deputy district attorney. "But the law is clear. We're obliged to follow the U.S. Constitution and Oregon law."
The dispute landed before a Multnomah County judge, who identified two competing interests: the need to provide a fair process to people accused of a crime and the need for confidentiality to protect victims of domestic violence.
The debate is not unique to Multnomah County. It's arisen elsewhere in the nation where such collaboration between police and community-based advocates has been encouraged to better tackle domestic violence or other serious crimes. Some states afford victims' advocates confidentiality privileges akin to that of attorney-client or doctor-patient, but not Oregon. "It's a growing question and area of debate and legal attention," said Rhonda Martinson, a former domestic violence prosecutor who now is managing attorney at the Battered Women's Justice Project in Minneapolis.
In the Multnomah County cases, Judge Maureen H. McKnight ultimately ordered victims' statements that advocates already had shared with police and prosecutors be turned over to the defense. The county immediately halted its program and spent the summer revamping it.
"I'm bummed out," said Portland police Capt. Chris Uehara, head of the Portland police family services division. "The momentum was strong. The whole point was we're working under one roof, collaboratively. Now, it seems like we're having to take two or three steps backward."
Since it began four years ago, the multiagency team has helped about 480 victims. Program coordinators had hoped to kick off a restructured program by Wednesday with clearer guidelines on what victim information should be shared.
Participants are striving to maintain the collaboration, yet not curtail the independence of advocates who work for nonprofit agencies or compromise the legal obligations of police and prosecutors. Finding that balance has proved tricky.
One immediate change was to discontinue advocates' access to the Portland police database, a practice divulged at the summer court hearings that troubled McKnight.
"Can of worms"
Multnomah County public defender Lisa Pardini filed the subpoenas in June. She represented 28-year-old Donald Leroy Russell, who faced multiple burglary, assault and harassment charges and a restraining order violation.
As part of pretrial discovery, Pardini sought to examine what his alleged victim, Gionni Crawford, said about Russell to the domestic violence victims' advocates. Pardini argued that her client had the right to confront his accuser and determine whether she changed her story. Soon, another public defender who had a similar case representing Kenneth Clowers, now 38, joined in.
"I just did a discovery request," Pardini said. "I didn't realize I was going to open this can of worms."
But that's exactly what occurred.
Shocked by the subpoenas, and disturbed that the district attorney took the defense side, advocates and county domestic violence workers refused to turn over documents and got their own lawyers. "We were not prepared for that," said Joslyn Baker, who coordinates the Domestic Violence Enhanced Response Team. "The team felt really attacked. It took a toll on them."
During a two-day hearing in June, Pardini pointed out that domestic violence victims' advocates work with police and prosecutors, partly, to hold high-risk offenders accountable. The team also holds bimonthly meetings in which advocates, police, and a prosecutor typically review and discuss individual cases and victim reports. She also recalled that in another case she handled, advocates had recommended that her client be kept in custody as he awaited trial based on a risk assessment they had done.
"So they're actually involving themselves in the case to a level that they want that person to receive the highest punishment or highest level of supervision they can get," Pardini told the court. "Now that they're being asked to produce statements by the alleged victim, they're saying, 'No, no, no, we're not part of the system. We're just out here to help the victim.' They can't have it both ways."
"Not going to happen"
An attorney representing advocates from Raphael House and Volunteers for America argued that the victim's safety is what's at stake. Because the advocates receive partial funding under the federal Violence Against Women Act, she argued they are protected under its confidentiality clause. Advocates don't work for the government but contract with the county. "My clients are third parties. The DA does not have the right to reach into the files of nongovernmental entities for this purpose," Heidee Stoller told the judge.
In an interview, a 29-year-old woman who was a victim of domestic violence said the team's advocates helped her figure out a "safety plan," and find a shelter. "It would be terrifying if my advocate was called to testify about that because it could have made me unsafe," the woman said.
Stanford countered in court that the federal Constitution and state law require prosecutors to disclose any relevant statements of people the district attorney intends to call as witnesses. "We certainly intend to call the victim as a witness," Stanford said.
McKnight ruled that the federal law doesn't prohibit disclosure of such records. She limited her order to those records that advocates had shared with police or prosecutors.
The team's organizers hoped to restart the program by Wednesday, yet not all the partners are ready to sign off. "Not going to happen," Uehara said Friday, noting that police can't accept some language in the new protocols, such as looking the other way when victims have unrelated arrest warrants.
Baker remains hopeful the team can continue. "We're really tightening up what victims' information can be shared with police and prosecutors. I think writing it down is one thing. But practicing it is another. That's going to be a big learning piece."
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