In Allegheny County, domestic violence offenders often avoid the most serious punishment

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Mother holding child in red hand illustration. (Illustration by Anita DuFalla/PublicSource)

(Illustration by Anita DuFalla/PublicSource)

In three month's time, a man in Allegheny County racked up three charges of assault, adding to a long record. According to police reports, he struck his girlfriend, a friend and his teenage son.

After this spree, in late 2017 and early 2018, his record had grown to more than a dozen arrests since 1993, according to court records. Eight of those involved charges of violence and/or making threats. The three recent cases have been resolved in Allegheny County courts, and he’s again freed to walk the streets of his suburban town.

Standing on the steps of the Allegheny County Courthouse, after another appearance meant to sway a judge to put him behind bars, the teenager’s mother said they plan to go into hiding.

“I’ve done that before,” said Grace (a pseudonym), who was in an eight-year relationship with the man. She said her ex’s rage comes in sprees, when he burrows deeper into drug and alcohol addiction. In the past, she has stayed with friends he doesn’t know or left town after his arrests.

According to court records, Grace’s ex has never served more than 10 months in prison for assaulting his friends and family over the years. Grace said she sees the pattern by which he evades lengthy sentences. “He has pled down all the charges and faces new [lesser] charges,” she said. “He should be considered violent, but he isn’t, on paper.”

To take a closer look at domestic violence prosecution, PublicSource evaluated the 789 cases closed in 2017 by the Domestic Violence Prosecution Unit of the Allegheny County District Attorney Office. For that year, it was rare for anyone to be convicted of a felony related to domestic violence.

Out of 312 cases that included a felony charge, 51 ended in a felony conviction.

In cases of aggravated assault, the most common type of felony, defendants were convicted of that charge less than 10 percent of the time, trailing far behind conviction rates of aggravated assault found in a 2008 analysis the U.S. Department of Justice used to gauge how domestic violence cases were typically treated.

Based on data samples from 2002 in 15 urban counties, the federal report found that prosecutors pressed charges in 66 percent of cases when a defendant was arrested in an alleged aggravated assault. Their data showed a conviction rate of 54 percent in such cases.

While only a snapshot, the figures contrast with outcomes of a year’s worth of cases in Allegheny County. The prosecution rate for the unit's cases meanwhile matches the rate identified in a 2008 study of prosecutions for intimate partner violence.

In October 2016, police and prosecutors in Pennsylvania received a new tool for some of the most serious domestic cases. The state passed a law making strangulation a felony. Studies have shown that blocking a partner’s windpipe was a common precursor to homicide. In the 45 strangulation cases handled by the domestic violence unit in 2017, six included a conviction for that crime.

Defendants in domestic violence cases routinely take plea deals — agreements between prosecutors and the defendant that reduce uncertainty by guaranteeing a conviction, but often for less punishment. These deals are common in criminal courts across the country, and defendants prosecuted by the domestic violence unit pleaded guilty in more than 98 percent of cases closed in 2017.

Deputy District Attorney Michael Sullivan, head of the domestic violence unit, did not respond to several requests to speak about the 2017 data.

Erin McClelland, a political strategist for Allegheny County District Attorney Stephen Zappala Jr., said: “Ultimately, the goal is not incarceration or vindication. The goal is to get it to not happen again.” Diversion programs are often preferable, she said, and having a defendant plead down to a lesser charge is often better than trying to convict them on aggravated assault and “watching them walk.” Then they would be outside any supervision from the justice system.

Domestic violence cases across the United States are impeded by factors like lack of physical evidence and victims’ hesitancy to cooperate with prosecutors. Since the 1990s, courts and prosecutors have attempted to overcome these obstacles through specialized domestic violence courts and “no-drop” policies that task prosecutors with continuing cases even without a victim’s participation. This puts more burden on police and prosecutors to pursue a case and less burden on a traumatized victim who may still have a relationship with the defendant.

Allegheny County has not adopted these reforms. It has neither a “no-drop” policy nor a specialized court for domestic violence. David Cashman, who served from 2014 through 2018 as administrative judge for the criminal division of the Court of Common Pleas for Allegheny County, said the court assigned domestic violence cases to three specific judges, effectively establishing a specialized court.

Lorraine Bittner, legal director of the Women's Center and Shelter of Greater Pittsburgh, said these are simply criminal courts, and Allegheny County needs one “specialized court,” where “the judge knows all the repeat offenders.”

After a succession of court dates in 2018, Grace’s former partner, Richard (a pseudonym) was sentenced to probation related to the three-month bender of violence, documented by the police department of the town where he lives.

(Out of concerns for privacy and safety, PublicSource is not naming the victims of these crimes, or the perpetrator, because doing so could identify victims.)

The following details of the incidents are according to police reports, unless otherwise noted:

In October 2017, Richard hosted a woman at his home for a “date night.” He got drunk on whiskey and demanded his date’s car and money to pick up crack cocaine. When she refused, he allegedly threw her around his bedroom and gripped her neck before taking her keys and driving off.

Richard’s 16-year-old son, Manny (also a pseudonym), emerged from another room to check on the woman. She went to the police department, where officers later noted red marks on her neck. Richard was charged with robbery, simple assault and felony strangulation and released on bond.

In November 2017, a friend went to Richard’s home to check on him. The friend found him drunk and Richard punched and kicked him and thwarted several of his attempts to flee the house. He escaped and ran to a nearby business. Police noted his bruised lips, broken nose and swollen eyelids. Richard was charged with aggravated assault (a felony) and false imprisonment and released on bond.

In mid-January, Manny was playing a video game in the living room of his father’s house. Richard allegedly barged in, drunk and complaining about the noise.

“He came in and started hitting on me,” Manny told PublicSource. “After that, he grabbed me up and busted me against a wall.” Manny said his father also made a threat: If Manny testified in court about the incident with the woman, he would kill him.

Manny and Grace went to police, who documented the teen’s bruised face and abrasions to his neck and back. Grace told police it wasn’t the first time he hit their son. Richard was charged with simple assault, harassment and endangering the welfare of a minor and released on bond.

In the last 18 years — during which he was a serial reoffender — Richard faced charges of aggravated assault at least four times —  a felony that can lead to a sentence of 20 years, depending on severity. But he’s never been convicted of it. In two cases where he served some jail time (10 months in one case and 140 days for the other), charges of aggravated assault were withdrawn and Richard pleaded guilty to misdemeanors.

For the latest cases, it played out similarly.

For the “date night” incident, Richard faced felony charges of strangulation and robbery for taking the car. Those were withdrawn and he pleaded guilty to one misdemeanor, simple assault. Judge Donna Jo McDaniel sentenced him to two years of probation.

Charges for the alleged attack on his friend were not prosecuted.

The attack on Manny did not generate any felony charges. Richard pleaded guilty to simple assault and endangering the welfare of a minor. Three other charges were withdrawn. McDaniel sentenced him to three years of probation for this case.

For Grace, the lack of more serious punishment has led to two decades of fear.

She said Richard has attacked her, her parents and his own parents over the years: “He’s an animal,” she said. “He’s been a violent person his whole life.” She said the system keeps “making the mistake of letting him out.”

How the cases play out

Zappala established the Domestic Violence Prosecution Unit in 1999. Five attorneys and two paralegals work for the unit, whose stated mission to “prosecute cases involving current or former sexual or intimate partners who engage in criminal conduct of a threatening, intimidating or physically violent nature.”

The unit also prosecutes cases of crimes against children and a handful of cases that don’t involve domestic violence. (The unit is sometimes allotted these cases because they have resources for them, said DA spokesperson Mike Manko.)

PublicSource searched Pennsylvania’s court database for the unit’s 2017 closed cases and learned the outcomes in 785 of them. Four were untraceable in the database.

The unit dealt with 312 cases charging felonies, ranging from gun violations to kidnapping to terroristic threats. Fifty-one resulted in convictions.

Out of 312 felony cases...

“It’s impossible not to see that the path to plea deals, in even severe cases, can be made very easy,” said Todd Spivak, an attorney who works on criminal defense and matters involving protection-from-abuse [PFA] orders in Allegheny County. “It’s very rare for a defendant to face the highest charge.”

Aggravated assault, the most common felony charge filed, is defined in Pennsylvania as a physical attack that causes or could cause “serious bodily injury” and was a charge in 157 cases in 2017.

Out of 157 aggravated assault cases...

In 27 of the cases with an aggravated assault charge, a judge in municipal or magisterial court squashed the aggravated assault charge but let other charges go forward to the Court of Common Pleas.

In cases closed by the Allegheny County DA's Domestic Violence Prosecution Unit in 2017, prosecutors moved forward with aggravated assault charges in 73 percent of cases. Those cases resulted in a conviction for aggravated assault 13 percent of the time.

The DA’s domestic violence unit prosecuted and secured a conviction of some kind in 111 of 157 cases including an aggravated assault charge. In 80 percent of the 111 cases, charges were pleaded down to a misdemeanor or less.

In the 2008 Justice Department report, the aggravated assault charge was pleaded down to a misdemeanor in about 22 percent of cases.

More than 90 percent of all criminal cases that resulted in a conviction in the United States are resolved with a plea bargain, studies have consistently shown. All but 12 of the 785 cases closed by the domestic violence unit in 2017 ended in a plea.  “Horse trading determines who goes to jail and for how long,” two scholars wrote in a much-quoted 1992 Yale Law Review article. “That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.”

Nationally, almost all domestic violence cases are plea-bargained, said Joel Garner, a retired criminologist with a lengthy résumé in governmental and academic roles, including a stint as chief of law enforcement statistics at the Bureau of Justice Statistics.

Prosecutors throughout the justice system drop or reduce charges to reduce their caseloads  and allot resources strategically to the most serious or demanding cases. Defendants, under the advice of their attorneys, are often keen to dodge the risk of being found guilty on the most serious charges. This sometimes transmutes felonies into misdemeanors and even summary offenses (about as serious as a parking ticket).

These are not the only factors baked into local criminal justice systems, Garner said.

“Prosecutors will do things differently depending on the judge,” Garner said. “Judges will do something different depending on how much room there is in the county jail.”

Misdemeanors

In 60 percent of cases closed by the Allegheny County domestic violence unit in 2017, the most serious crime was a misdemeanor. Misdemeanors typically result in shorter jail sentences, if any, and spare the convicted person from bans on some jobs and government programs. Prosecutors more often convicted defendants of misdemeanors.

Out of 472 misdemeanor cases...

The most common kind of misdemeanor charge was simple assault defined as an intentional action that “recklessly causes bodily injury” (as opposed to “serious bodily injury” for aggravated assault). In total, 383 misdemeanor cases included a charge of simple assault.

Out of 383 simple assault cases...

The pathway for domestic violence cases

In any jurisdiction, there is a long road between an assault and the day a defendant stands before a judge in court. That road includes several pitfalls and offramps, many of them unique to domestic violence cases.

The completion of that path, from violence to sentencing, often depends on where the incident took place and the approach of the local prosecutor. That can vary widely.

For instance, a 2009 review of domestic violence prosecutions from the U.S. Department of Justice found that prosecutions per arrest ranged from 4.6 percent in Milwaukee to 94 percent in Hamilton, Ohio, a suburb of Cincinnati.

Many incidents don’t get reported at all and, therefore, the path to prosecution doesn’t begin. According to a 2017 study from the Bureau of Justice Statistics, 44 percent of nonfatal domestic violence incidents in the United States are not reported to the police. When police responded, they took a report in 78 percent of cases.

Arrests can lead to immediate benefits for the victim. As a condition of bail, arraignment judges often mandate that a perpetrator not make contact with the victim. Police also confiscate firearms from the perpetrator as a safety measure.

In Allegheny County, after an arrest and arraignment, the next step for a domestic violence case is a preliminary hearing at a local magisterial district court or Pittsburgh municipal court. There, a lawyer for the county is tasked with showing enough evidence to convince a judge the case should proceed to the Court of Common Pleas.

“The hearing is not to determine guilt or innocence,” said Spivak, the defense and PFA attorney, “but whether it’s more likely than not that the defendant committed the crime they’re charged with.”

At these hearings, assistant district attorneys are often eager to make an offer to resolve the case, Spivak said. Options include anger management classes or an intervention program. Spivak charges a flat fee to represent a client at a preliminary hearing for domestic violence. He’s expecting them to take an offer and to not need his services after that day.

In Spivak’s view, prosecutors are more eager to continue charges in rural counties of Pennsylvania, where caseloads aren’t as staggering.

McClelland said diversion and intervention programs get perpetrators mental health or support services. She said District Attorney Zappala has faith in them “because they’ve been proven to work.”

Academic research is mixed. A few studies have showed lower recidivism rates in men who took such classes as opposed to control groups of equally at-risk men who didn’t. But large analyses on data about diversion programs in domestic violence tend to note, in the words of a 2005 review in the Journal of Experimental Criminology, that “reviews of research on the effectiveness of these programs have arrived at conflicting conclusions.”

Also, while diversionary programs may be common remedies for lower courts, they were rarely imposed as sentences in cases handled by the domestic violence unit in the Court of Common Pleas. In the 785 cases from 2017 with traceable outcomes, seven cases ended with the defendants sentenced to a diversionary program.

Attorneys and victim advocates explain that lower court is the end of the road for many cases in Allegheny County.

“More domestic violence cases get settled at a magistrate office than get settled Downtown,” said Ashley Deiuliis, an advocate at the South Side-based nonprofit Center for Victims, who advises and assists domestic violence victims in preliminary hearings. She said repeat offenders and more severe incidents are more likely to proceed to the Court of Common Pleas, but there’s no single criteria that ensures it.

Victims have varying concerns and dispositions as cases start to move through the system, Deiuliis said.

She is often asked: “Can I drop charges?” This leads to a conversation about the mechanisms of the criminal justice system. Despite the use of the phrase in movies and TV, a victim does not “press charges” against a defendant. The prosecutor puts together a case and pursues it.

However, a victim’s hesitance or refusal to be involved can create a major hurdle for prosecutors. It subtracts a key witness from their case.

“Many [victims] don’t want to cooperate,” said Bittner of the Women's Center and Shelter of Greater Pittsburgh. “A lot don’t want to come to the preliminary hearing.”

If the victim is separating from their partner and trying to do so in an orderly way, testifying can disrupt that process. The perpetrator may see the victim as the reason he’s being charged and lash out. Bittner said that while all victims want the abuse to stop, many “don’t trust the system” to intercede in their lives in a beneficial way.

“If you have an uncooperative victim, you have a very big problem,” Judge Cashman said. In many such incidences, “there is no sense in pursuing the case,” he said. In a busy courtroom, it’s more practical to move on to other cases.

The Bridge of Sighs connects the Allegheny County Courthouse and the former Allegheny County Jail. (Photo by Kat Procyk/PublicSource)

The Bridge of Sighs connects the Allegheny County Courthouse and the former Allegheny County Jail. (Photo by Kat Procyk/PublicSource)

“It can be astonishing the kind of cases that can be resolved” at a preliminary hearing, Spivak said. Incidences with severe injuries sometimes never make it out of the lower courts, he said. “But if the victim is unwilling to cooperate, usually the DA follows along.”

Nationally, in recent years, many police departments and district attorney offices have taken the stance that domestic violence is not just a family issue but a public safety issue.

“It used to be thought that police made the situation worse,” Garner said, “that they’d just agitate the problem.” An aggressor whose wife brought the cops to his door would bear the brunt of his anger when they left.

Bittner said that 30 years ago, police commonly told abused women to “take a walk around the block” and allow their partners to calm down.

There was a major change in how police and prosecutors approached domestic violence in the 1990s, said Garner, who has also published studies on domestic violence prosecution rates. The 1994 Violence Against Women Act allotted $1.6 billion in federal funds toward investigation and prosecution of violent crimes against women and promoted the use of criminal prosecution in intimate partner violence.

The current consensus among prosecutors is that domestic violence “should be just like burglary charges: If the evidence is there, they prosecute,” Garner said.

Many prosecutors’ offices throughout the nation have implemented “no-drop” policies, modeled after a widely applauded one in San Diego. Under such a policy, state or district attorneys would not decline to prosecute a case based on the cooperation or preference or the victim.

However, the road to judgment in Allegheny County tends to stop when the victim does.

“For domestic violence, it would be like a he said-she said,” Cashman said. “Let’s assume someone groped you. You’re not going to have a DNA test. There’s not going to be someone to have seen them do it. Beyond a reasonable doubt, it’s very hard to prove [unless] you have rape or semen. As a general rule, in cases you have to prosecute, you have to have physical evidence.”

Statements to police are useful, he said, but when victims later make contradictory statements, the prosecution can fall apart.

McClelland also stated that victims not cooperating makes it prohibitively difficult for the district attorney’s office to land a conviction for aggravated assault.

“Also, the perpetrator may be the main provider” for the victim and her family, she said. So district attorneys may want that person out of the jail to continue to offer monetary support.

No-drop jurisdictions insist that prosecutors move past these limitations and considerations and still pursue a case. The Office of Justice Programs, a Justice Department branch that focuses on research and assistance to local governments, has funded efforts by local domestic violence units to implement “no-drop” policies and improve prosecution rates.

“No-drop” policies have improved prosecution rates, research suggests. According to the 2009 Justice Department report, a study of San Diego’s domestic unit found a rate of 70 percent of cases prosecuted. In Everett, Wash., the rate is about 79 percent. Omaha’s domestic violence unit prosecuted 88 percent of arrests.

This tough approach has been criticized for removing victims’ voices from the process and stretching prosecutors’ resources into unwinnable cases.

Prosecutors abandoned or withdrew charges in 274 of the 789 cases closed by the Allegheny County domestic violence unit in 2017. For many of these cases, Spivak said a lack of victim involvement likely made the case challenging to prosecutors.

Garner and his co-author conducted a comprehensive 2008 study of prosecutions in intimate partner violence; they found the average prosecution rate was nearly 64 percent. The Allegheny County domestic violence unit’s prosecution rate was about 65 percent in 2017.

The process has changed recently in Allegheny County. In August, Zappala told several local police departments that officers would have to receive permission from the district attorney’s office before defendants can be charged with specified felonies, including aggravated assault and other charges that appear in domestic violence cases. Prosecutors began similar oversight over City of Pittsburgh cases in 2017.

“There have been some issues on how police see these charges,” McClelland said. She added that, “When you charge someone with a felony, you change their life.”

In January, the Pittsburgh Bureau of Police announced that it is using a $500,000 grant to create a new investigative unit focused on domestic violence cases. The bureau plans to use the resources to give support to victims and improve investigations.

Garner said police and prosecutors have different degrees of control over what a defendant is charged with after arrest, depending on the jurisdiction.

Garner said citizens should still question why this change is happening. “Prosecutors don’t like … to have a record where it doesn’t look like they have a high rate of conviction,” he said.

Alternatively, prosecutors may get “sloppy police work,” and increased oversight would ensure that charges fit available evidence.

Garner said he found Zappala’s reasoning that a felony charge is hard on the defendant to be unusual for a district attorney. “It’s a great value to have, but it’s not typically articulated by the prosecutor,” Garner said. “It’s usually the kind of thing the defense says.”

There is no exact criteria for a “good” prosecution rate for domestic violence or any type of crime, Garner said. A low rate may mean prosecutors are not pressing cases police bring to them, but some cases are inherently difficult to prove in court. A high prosecution rate could mean arrests are only being made in cases that look like a slam dunk for prosecutors.

Bittner, who has served on multiple task forces to improve Allegheny County’s domestic violence response, said the specialized prosecution unit has improved how cases are handled, but that the county needs specialized domestic violence courts, another popular legal trend since the 1990s.

There are more than 170 domestic violence courts in the United States. Like drug court or veterans courts, they provide judges with better understanding of the unique dynamics of the individuals who pass through them. “They know the repeat offenders and offer specialized solutions,” Bittner said.

Once an incident gets to a court — usually after the case has been volleyed between prosecutors and defense attorneys to create a plea deal — one final person has a say in the outcome: a judge.

A day in court

“I’m apologetic to my son,” said Denny (a pseudonym), standing in handcuffs and an Allegheny County Jail uniform before Judge Donna Jo McDaniel. “This is something outside my character.”

Denny, 47, is talking about an incident in which prosecutors say he threw his son against a wall. The boy got medical care after his mother found him bruised. Denny was charged with aggravated assault on a victim younger than 13, a subcategory of aggravated assault that can lead to harsher penalties. He also faced charges of simple assault on a victim younger than 13, endangering the welfare of a minor and reckless endangerment. He pleaded guilty to all charges.

On this warm autumn day, domestic violence cases prosecuted by the DA’s specialized unit streamed through McDaniel’s courtroom.

Denny’s public defender told the judge, “This appears to be a one-off.” Denny has a job, children and rental properties with tenants, he explained. He has responsibilities to fulfill.

“He is not a child abuser,” said the public defender. “He has been a good citizen. …[T]his is a candidate for some mercy.”

The boy’s mother, standing next to a prosecutor, described to McDaniel the psychological distress her son has faced since the incident.

Defendants, attorneys and witnesses all stood a few feet from McDaniel’s bench and spoke in low tones, as if to maintain a small veil of privacy over deeply personal matters that have been pulled through a public process.

Outcomes of all of the cases in court today have been decided through plea deals before court was in session; the judge just needs to approve it and rule on a sentence. In the half hour before court began, several defendants sat in wooden chairs in the back of the courtroom and filled in the paperwork for a guilty plea, as nonchalantly as they would a job application or credit check.

This moment before a judge hands down a sentence is a final opportunity a defendant has to ask for mercy and the victim to ask for severity.

McDaniel sentenced Denny to a maximum of 23 months in the State Correctional Institution-Waymart, noting its unit for adult men with psychiatric problems.

Among the defendants that day was Richard, who was there to take a plea deal for the “date night” attack that happened about a year prior. He was accompanied by his mother.

Richard filled out the paperwork for the plea. After he was called, McDaniel walked him through the stipulations of his probation, in a spiel that was no doubt familiar to him: He isn’t to have any contact with the victim or any violent encounter with anyone, she explained. He nodded along. It all seemed to be going routinely.

When McDaniel turned to the prosecutor, a police officer from a suburban township stood next to the assistant district attorney. The officer told McDaniel that Richard threatened to kill his teenage son if he testified in court. The officer pointed to Manny and Grace sitting in the gallery.

The officer asked for Richard’s bond to be revoked. His face turned red, and he folded his arms.

Richard’s public defender argued the allegation of a threat hasn’t been investigated, but McDaniel ordered him taken away in handcuffs. As he left the courtroom, he looked back at his mother.

Richard has since been charged with intimidation of a witness, a felony, and two related misdemeanors. His court date for those charges is in February.

Outside the courthouse, Manny, Grace and Manny’s girlfriend, who came for moral support, awaited a bus. They put him away today, but it would be a temporary relief. In three weeks, Richard will take a plea deal in his attack on Manny and get out with more probation. The last time a PublicSource reporter spoke to them, Grace and Manny planned to stay at locations Richard doesn’t know.

Manny is a slim teenager, wearing jeans and a T-shirt. He turned 17 the day before he helped put his father put in jail. His mother had told him that to be protected from an abuser, he’d have to come to court and put his finger on the proverbial scales of justice. She has seen Richard get out too many times to trust the system.

The local police department, apparently concerned over the repeated violence, took the unusual action of sending three officers to the court to testify.

When asked how the process felt, Manny said it “sucked” and looked at the sidewalk.

He said he knows his father’s root problem from 17 years of observing and being hurt by it. “He can’t express his emotions when he’s sober,” Manny said, “so it all comes out when he’s drunk.”

His father’s drug and alcohol binges come every few years, he said, and his rage turns violent.

Once their bus comes, they leave to a three-week respite from the terror of knowing a man who time and time again has subjected his relatives and others around him to violence.

Nick Keppler is a Pittsburgh-based freelance writer who has written for AlterNet, The Village Voice, Mental Floss, The Financial Times, Reuters, Slate, The Daily Beast and Vice. He can be reached through nickkeppler.com.

Madeleine Davison assisted with the research on this story.

Graphics by Natasha Vicens.

This story was fact-checked by Oliver Morrison.

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