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In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Public defenders say the problem has disastrous effects on their clients' cases.

Clark County DA Steve Wolfson

In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Public defenders say the problem has disastrous effects on their clients' cases.

Earlier this year, a U.S. district judge threw out criminal charges against Clark County cattle rancher Cliven Bundy, his sons, and a co-defendant, citing “flagrant” and “outrageous” misconduct by Nevada prosecutors. But the allegations against the U.S. Attorney’s office — that key evidence was delayed or withheld — apply to the county’s local prosecutors as well, public defenders tell The Appeal.

Attorneys with the Office of the Clark County Public Defender say the county’s district attorney’s office frequently violates the law that governs the sharing of information, also known as “discovery.” While some oversights are accidental, explained public defender David Westbrook, others appear intentional. Pieces of evidence are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them],” he said.

To address the problem, the public defenders began to document cases involving observed violations and their outcomes. In 2017 alone, they recorded 28 cases in which county prosecutors turned over discovery — including jail calls, surveillance video, police reports and body camera footage, witness details, DNA and forensic test results, medical reports and other forms of evidence — within 30 days of trial. The gravity of these violations varied. In some cases, a late disclosure involved a large document dump on the defense ahead of trial. But four cases allegedly involved the late disclosure of exculpatory evidence, such as police notes about a victim who had previously made false allegations, a report from Child Protective Services, and witness interviews.

Sometimes, the office found, discovery was provided within one business day of a trial’s start date. In six of the 28 cases, evidence was not revealed until the trial had begun.

The state’s criminal statutes require prosecutors to disclose key evidence against a defendant early on in a case. They have to turn over defendant and witness statements in their possession at least five days before a defendant’s preliminary hearing. As a trial nears, prosecutors must continue to turn over additional evidence they have collected and plan to use, and Nevada law establishes deadlines for these disclosures. Both sides, for instance, have until 21 days before trial to disclose the summaries of what expert witness testimonies will be. They also have until 30 days before trial to disclose medical reports, test results, defendant and witness statements, and physical evidence, including relevant documents, if those are formally requested by the opposing side.

Failure to provide discovery before a deadline without the court’s permission — or not providing it at all — is a violation, and judges are authorized to sanction the responsible parties or prohibit them from presenting the evidence at trial.

Another public defender, Robert O’Brien, said his colleagues have lamented systemic discovery violations for years and raised concerns to judges and policy committees. But their grievances have largely fallen on deaf ears. “The response that we’ve encountered consistently is that we need to show that there’s a pattern or more than anecdotal evidence,” O’Brien said. “We usually would bring up the most egregious violations we could find and, generally, our district courts have refused to sanction the district attorney for it.”

The office found that judges responded to these late discovery disclosures in different ways. They allowed prosecutors to admit the evidence in three cases. Four cases were resolved with plea deals. Judges postponed 11 cases and allowed late discovery to be presented in three. Seven cases proceeded as normal.

With approximately 60,000 cases every year, a spokesperson for the district attorney’s office acknowledges that “the flow of discovery in each and every case will not be perfect.” But the office disputes claims that it doesn’t take discovery violations seriously. “We exercise good faith and due diligence in providing discovery in every case,” the spokesperson wrote in an email to The Appeal.

Yet public defenders maintain that discovery violations are ubiquitous and that little has been done to rectify the problem.

“I have never had a trial when there hasn’t been some kind of discovery violation,” Westbrook said. “Whether [defendants are] guilty or innocent, they’re still entitled to a fair trial.”

Clark County v. Mr. J

It’s easy to find examples in which late discovery derailed a case, many of which predate the public defenders’ study of the violations. On Sept. 30, 2013, the Las Vegas Metropolitan Police Department arrested and detained Mr. J (a pseudonym used at Westbrook’s request to protect his client’s identity). He was accused of entering a bar, demanding money from a female victim at knifepoint, forcing her into a separate room, and touching her breasts. The district attorney’s office charged him with robbery with the use of a deadly weapon, attempted sexual assault, and other charges, based on eyewitness identification. Mr. J denied any wrongdoing.

Court motions and hearing transcripts obtained by The Appeal show that, starting in October 2014, Westbrook specifically requested discovery related to how investigators received information from a confidential informant mentioned during an earlier hearing, as well as any potentially exculpatory evidence that could undermine the prosecution’s case. The presiding judge granted both requests during two separate discovery hearings that month, but Westbrook says he never received that discovery ahead of Mr. J’s trial in January 2015. Several transcripts from discovery hearings show that prosecutor Mary Kay Holthus actually pushed back against having to turn over information about the confidential informant’s tip, even going so far as to criticize Westbrook for not procuring the information himself. “I’m not his lackey,” she said in court.

The prosecution didn’t put up a fight when it came to disclosing exculpatory evidence requested by the defense. It confirmed that it would turn over the information — which it is obligated to do under the Nevada and U.S. constitutions — while noting that it wasn’t sure such evidence existed. For good measure, the judge granted Westbrook’s request for that material.

As Mr. J’s trial date approached, however, prosecutors ultimately told Westbrook that they had turned over everything in their possession and that some of the requested discovery did not exist. He took them at their word and prepared his defense with the information he had been given, Westbrook said. It wasn’t until trial was well underway that Westbrook learned the prosecution’s response to his discovery requests was categorically untrue.

During the trial, the lead detective testified that he had talked to the confidential informant himself, contrary to his claims made under oath at the preliminary hearing, when he claimed that he didn’t know who the informant was or who he or she had tipped off. He then dropped a far bigger bomb: There were several other suspects in the case. In revealing this, he made clear that exculpatory information known as Brady evidence was never disclosed — a direct violation of the U.S. Constitution.

If prosecutors had produced that material evidence in the months leading up to trial, Westbrook says he could have prepared a stronger defense for Mr. J. The defense had argued that Mr. J wasn’t the perpetrator, but knowing that there were other suspects could have helped Westbrook make the case that another person was more likely to have committed the crime. Instead, Mr. J’s team was completely blindsided. “It’s one thing [for me] to say somebody else did it,” Westbrook explained. “It’s quite another thing to be able to investigate suspects that the detectives also believed may have committed the crime.”

Though she was court ordered and constitutionally required to dig into it, there is no way to know if Holthus was aware of the conversation between the detective and the confidential informant. She did not respond to requests for comment on the case. But the prosecution is required to learn about anything exculpatory in law enforcement’s case file.

“When this kind of thing happens, you get a lot of finger-pointing and buck-passing. The DA blames the detective for not telling her about the evidence or the defendant for not somehow, magically, getting the information himself,” Westbrook said. “This system of plausible deniability allows both the DA and the police to duck a finding of ‘bad faith,’ which is about the only finding that will get a case dismissed.”

Undermining ‘Fairness and Accuracy’

No matter what the reason is for a particular delay, late discovery disclosures occur nationwide and wreak havoc on defendants’ cases, says Jennifer Laurin, a criminal procedure and civil rights professor at the University of Texas at Austin School of Law. “We depend on the effective assistance of counsel so that a lawyer can scrutinize the other side’s evidence. Discovery in advance of trial is part of what enables that to happen,” Laurin told The Appeal. By the time a trial is getting ready to start, the defense has usually settled on a strategy based on the evidence in its possession. Discovery obtained right before or during trial can render that strategy moot, and gives the attorneys little time to review the evidence and adjust their plans accordingly. It undermines fairness and accuracy, Laurin said.

If defendants are detained pretrial, discovery violations can also cause damage long before a trial begins. The sooner prosecutors produce discovery, the sooner defense teams can scrutinize it and press for a defendant’s release, Laurin said. According to Westbrook, 92 percent of his clients are currently detained in jail pending trial. Defendants can spend extended periods of time behind bars if court proceedings are delayed because of late discovery. Pretrial detention also increases the likelihood that someone will take a plea deal. “The longer the delay, the more their resolve is broken down,” he said.

That is exactly what happened to Mr. J, who was never released after his arrest in September 2013. He went into the trial facing a life sentence, but after the last-minute disclosures about the confidential informant and alternative suspects, prosecutors offered him a deal. Westbrook encouraged him not to take it, and unsuccessfully pushed for the case’s dismissal. But faced with the prospect of spending a lifetime behind bars, a deal was too hard to pass up. In exchange for pleading guilty, Mr. J was sentenced to five to 20 years in a state prison — time he is still serving. Defendants nationwide often do the same, which empowers prosecutors to cheat over and over again. But it is simply impossible to know how many times a defendant could have been spared a conviction if prosecutors and the law enforcement officers they collaborate with were forthcoming about all the evidence they had.

The district attorney’s office says it has taken concrete steps to improve discovery production, such as creating a checklist of best practices. The checklist requires prosecutors to contact the opposing counsel for a file review, but the latter doesn’t have to accept the offer. The office also says public defenders haven’t taken advantage of a special subcommittee created in 2015 to review and refine discovery procedure, which Clark County’s chief public defender, Philip Kohn, chairs. But Kohn told The Appeal that his office hasn’t seen the discovery checklist, and that the subcommittee hasn’t convened because of prosecutors’ refusal to implement suggested reforms.

“Again and again, the DA simply came to the subcommittee unwilling to propose any reform suggestions, unwilling to consider reform suggestions, and unwilling to consider any rule other than one that removes the DA’s constitutional responsibilities to timely disclose evidence,” he said. The DA denies that reforms were proposed.

Meanwhile, public defenders are continuing to document discovery violations, but say there is no way to determine just how many defendants have been impacted. “We can’t see behind the curtain,” O’Brien said. “There’s just a big black void of what’s happening. We either trust that the system just works and we don’t question it at all, or we keep pushing for the idea that it should be transparent.”

Houston Is Forcing Its Parolees Out of City Center and into ‘the Boonies’

Downtown Houston
Henry Han / Wikimedia Commons

Houston Is Forcing Its Parolees Out of City Center and into ‘the Boonies’

Houston has come up with a new way to make life harder for people leaving prison on parole: by forcing the programs that provide them with housing, often paired with job placement and other services, to move outside the city limits.

At the end of March, the city council approved an ordinance that imposes new regulations and inspections designed to improve safety conditions in boarding houses and other facilities. But it also requires housing for people on parole — known as “alternative housing” — or correctional facilities to be located at least 1,000 feet from parks, schools, daycares, and other re-entry housing.

Jeff Reichman, a principal with data consulting firm January Advisors, created a map at the request of advocates with public data on Houston parks and schools that drew a red dot for each school or park. There’s virtually nowhere in the city’s center where re-entry housing can now be located. “The only place they’re leaving for expanding or building new housing for these folks is out in the sticks, in the boonies,” said Jay Jenkins, Harris County project attorney at the Texas Criminal Justice Coalition.

While these types of residency restrictions are generally associated with people on the sex offender registry, other cities in Texas have also moved to isolate parolees. Similar laws exist in Dallas and San Antonio.

CrossWalk Center, which offers a number of services to help people released from prison and jail re-enter society, says the new restrictions will make life harder for its clients — and for the organization itself. Last September, it committed to opening five re-entry facilities by the end of August. In October, it secured a lease for the first facility, but it has been waiting for approval from the Texas Department of Criminal Justice (TDCJ) to be added to the official list of housing providers for people leaving prison so it can begin accepting residents.

In that time, of course, the new ordinance was developed and passed. Kathy Vosburg, executive director of CrossWalk Center, didn’t find out about the process until after stakeholder meetings were already over. She was informed in December that the application for her first facility, along with all other pending applications, was put on hold until the city council voted on the ordinance.

“We got caught in between getting our house approved and the ordinance,” Vosburg said. And shortly after the vote in March, TDCJ called to say it was denying CrossWalk’s application because of it. The good news is that she has been told by city officials the newly leased house will be grandfathered in, allowing it to stay in its current location despite failing to meet the 1,000-foot distance requirement. But her organization still has to go through a new and lengthy approval process. The house will have to be inspected by the city, after which it will get an occupancy certificate, which will allow it to eventually get a housing permit. She’ll also have to write a letter to TDCJ in order for the house to be grandfathered in despite the new ordinance.

“Our hope and our prayer is that everything goes well,” Vosburg said. “Because we’ve had it up and running [without residents on parole] and we’re paying for everything.… We’re in the red right now because this set us back.”

Meanwhile, CrossWalk’s other four facilities are going to have be placed elsewhere. “Where we’re going to have to go is outside the city limits into unincorporated areas,” Vosburg said. That presents big challenges. Houston is a sprawling city with little public transportation infrastructure and most parolees don’t have cars. It can easily take an hour and a half one way to get into the city center to, for example, meet with a parole officer — a meeting that itself can take a couple of hours. “What employer is going to hire you if it’s taking five hours weekly to get to parole and back?” she wondered.

So her organization is setting aside additional funds to buy a van and hire a driver to transport residents to the nearest public transportation.

“We won’t give up continuing to look inside the urban center,” she said. “But it was hard [to find space there] before.” Now it could be nearly impossible.

In 2016, about 67,000 people were released from the Texas Department of Criminal Justice, about 35,000 of them are on parole or supervision. Each year, around 14,000 formerly incarcerated people will come back to Harris County, which includes Houston. That’s a lot of people who need somewhere to live, especially given that parole officers often won’t allow them to stay with family and friends and it can be nearly impossible to rent an apartment with a criminal conviction. “We don’t have enough housing to house those folks as it is,” Jenkins said. “So eliminating housing is obviously not very prudent.”

The location of the housing could also impact parolees’ ability to reintegrate into society. “For [re-entry housing] to be successful, it has to be centrally located, has to be located near public transportation, has to be located near health care with access to food,” Jenkins said. “We know that when you put folks who are re-entering away from public transportation and services … they are much more likely to fail.”

Advocates aren’t the only ones concerned about what the ordinance will do. Criminal District Court Judge Kristin M. Guiney wrote a letter to the city council as it debated the ordinance, arguing that the distance requirement will hurt re-entry efforts. “As a matter of public safety, it is imperative that we all support the reintegration of formerly incarcerated individuals,” she wrote. “There are few outcomes more detrimental to public safety than further limiting the housing options for people who already face barriers to housing and employment.”

Several fires in unregulated, multi-resident housing facilities, one of which killed three people, originally spurred the ordinance. The city council at first said it was “about safety and regulations at rundown homes that are putting people in harm’s way,” explained Natalia Cornelio, criminal justice reform director at the Texas Civil Rights Project.

And some of the housing for parolees is, in fact, overcrowded, unsanitary, or dangerous. “We applaud the bad ones going away,” said Vosburg.

But somehow the location requirement got tacked on. “The 1,000-foot [rule] is precluding those of us that are doing this above board and with integrity and with the person at heart and not profit,” Vosburg said. “It’s going to make it really, really hard to replace all the bad ones.” If parolees can’t find anywhere to live, they could be sent to a transitional facility — which is more like a jail than an apartment complex, Vosburg said — or end up homeless and eventually get re-incarcerated for violating parole.

When Councilmember Brenda Stardig was asked for a response to these concerns, given that she was a main sponsor of the ordinance, her chief of staff Amy Peck responded, “Council Member Stardig is extremely concerned with the safety of those living in and around boarding homes/correctional facilities/alternative housing facilities/lodging facilities. The ordinance changes were aimed at identifying these homes and to make sure that they are safe.”

Advocates say they didn’t even find out the ordinance was under consideration until December or January, after the stakeholder meetings were already completed. “None of the providers that we dealt with heard about” the meetings, Jenkins said. Of the providers on the city’s own list of re-entry housing providers, “most don’t even know that the ordinance is a thing,” Cornelio said.

The first chance any of them got to give feedback was at public comments sessions in March just before the council voted. But Vosburg and other providers were relegated to last place in the lineup, despite being the first to sign up, and given just 10 minutes each to speak, with few follow-up questions from the council. “They didn’t really want to hear it,” Vosburg said.

“There were numerous stakeholder meetings, community meetings, and a committee meeting,” Peck said in response.

The city also wasn’t responsive to requests for analysis or evidence to back up the need for the ordinance. “We asked for a public safety rationale,” Jenkins said. None was given. No experts testified in favor of the restriction and no evidence was entered into the record that indicated a need for the distance restrictions, Jenkins said.

“It just seems like it was orchestrated from the start that it was going to pass regardless of what questions were asked and what issues were raised,” Jenkins said. “The quickness with which they were labeling these folks nuisances, it made all of us feel very bad, but also very angry.”

Advocates say this feels part and parcel with the way the city has reacted to other social problems — such as its criminalization of the homeless. “It just seems consistent with the culture of criminalizing something that’s difficult to deal with,” Cornelio said, “instead of providing a solution and investing in it.”

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‘Like a Bad Dream’: In New Orleans, Witnesses Are Going to Jail Instead of Perpetrators

Still image from a video produced by the ACLU highlighting Orleans Parish DA Cannizzaro’s use of material witness warrants.

‘Like a Bad Dream’: In New Orleans, Witnesses Are Going to Jail Instead of Perpetrators

In the spring of 1983, Donald Mairena witnessed a shooting at New Orleans’ Latin American Club. He chased after the shooter and later told law enforcement what he’d seen. Mairena gave them his address in case they needed any more information from him. He heard nothing about the case until almost two years later, when he was arrested and jailed for nearly a month simply because prosecutors at the Orleans Parish district attorney’s office, then led by Harry Connick Sr., felt that he “might be needed as a witness if the case went to trial.”

Upon hearing Mairena’s case seeking damages from the Orleans DA for violations of his civil rights, judges on the Fifth Circuit Court of Appeals panel marveled, “The facts in this case are like a bad dream.”

Yet Mairena was far from the last witness to spend time in the New Orleans jail. More than 30 years later, the Orleans DA still regularly detains witnesses by using material witness warrants. Orleans Parish prosecutors obtain the warrants to force a person to testify in court if they believe that person has knowledge of a crime. They are meant to be used in extraordinary circumstances, such as for when a prosecutor suspects that a critical witness in a case might flee.

The Orleans DA’s office has frequently insisted that it is fighting for crime victims when it pursues lengthy prison sentences and fights exonerations. Its mission statement explicitly says the office seeks to “advocate for the victims of crime.”

But since 2010, Orleans District Attorney Leon Cannizzaro has sought more than 150 such warrants to arrest witnesses, including a significant number of victims, according to a data analysis by the Yale Law School students of the legal scholar James Forman Jr. that was shared with In Justice Today.

A 19-year-old victim of sex trafficking was arrested in November 2014, shortly after giving birth to her daughter. She had failed to appear at a hearing during her pregnancy because she was supposed to be on bed rest and had a doctor’s note to prove it. Even so, she was held in jail for nearly four months until she testified against the father of her child.

Another victim who was shot with a semiautomatic rifle was jailed as a material witness on a $100,000 bond in December 2016. Two victims of assault were arrested and jailed on $250,000 bond after they tried to recant their testimony against their alleged attacker.

Cannizzaro’s office generated national outrage — and a lawsuit — in the fall of 2017 over its practice of creating subpoenalike notices to compel witnesses to meet with prosecutors. These fake subpoenas hold no inherent legal power. But the forged documents were given teeth by the DA’s indiscriminate use of material witness warrants.

These witnesses have no right to counsel because they are not accused of a crime. Some have sat in jail for days or months before trial. They are often held on exceptionally high bond, sometimes even higher than the person they are testifying against.

In theory, material witness warrants are meant to be used in rare cases when prosecutors have a reason to fear a witness won’t show up to testify at trial. But Cannizzaro and prosecutors in other jurisdictions have allegedly used these warrants to intimidate witnesses into private interrogations often without attorneys present and to pressure them to mold their version of events to the state’s theory of the crime. In short: Cooperate with the state or go to jail.

The lawsuit filed by the ACLU and Civil Rights Corps, a nonprofit organization that challenges systemic injustice in the American legal system, alleged that the Orleans DA not only issued fraudulent subpoenas, but also secured material witness warrants under false pretenses to arrest witnesses who refused to cooperate with prosecutors.

In a May 9 hearing on the fake subpoena lawsuit, a federal district judge strongly criticized the Orleans DA’s material witness warrant policy.

“What was particularly troubling to me with the material witness warrants is that people, as I appreciate it, were incarcerated for a period of time with no appearance before a judge,” said Judge Jane Triche Milazzo of the United States District Court for the Eastern District of Louisiana. “It appears to me that people picked up on material witness warrants are being treated differently than people picked up on arrest warrants for crimes. They appear to have fewer rights.”

Indeed, the Yale Law students’ analysis of 159 material witness warrant applications filed by the Orleans DA from 2010 to 2017 offers a window into how this practice often ends up harming the victims and witnesses the Orleans DA office claims it seeks to protect.

They identified at least 25 cases in which witnesses were held on a higher bond amount than the person charged with a crime. In one case, a domestic violence victim was held on a bond of $100,000–20 times higher than that of her alleged abuser, who was given a bond of $5,000. In eight cases, prosecutors sought $500,000 bonds. The records indicate judges almost never denied prosecutors’ requests for high bond amounts.

These high bond amounts meant that when people were detained on material witness warrants, they were likely to stay in jail. Some witnesses with other minor charges against them ended up staying in jail for far longer; at least seven witnesses spent over 100 days in jail. One man was detained for 43 days, about 10 percent of the time the defendant in the case received.

The data analysis by Forman’s law students also suggests that the Orleans DA primarily deploys material witness warrants against black New Orleanians. African Americans made up 78 percent of both arrested and non-arrested material witnesses. Out of 50 people actually arrested on material witness warrants, one was a white man.

In many cases, the Orleans DA requested the warrant based on nothing more than the fact that the witness had refused to meet with prosecutors privately. One warrant was issued for the victim of an attempted murder simply because the office felt he was avoiding meeting with an investigator and victim witness coordinator. According to the motion for a material witness warrant filed by Assistant District Attorney Christopher Cortez, the victim’s father told an investigator with the Orleans DA’s office they did not want to participate in the prosecution.

Another man was held on $100,000 bond to testify against a person accused of unauthorized use of a motor vehicle. The defendant was given a $10,000 bond, while the witness sat in jail for a week. The sole reason given for the warrant was that he had not shown up to private meetings with the prosecutor on the case.

The Orleans DA has continued to request warrants for witnesses even after being sued by the ACLU and the Civil Rights Corps last year. And on May 18, the ACLU issued a statement attacking “Cannizzaro’s “callous treatment of victims” and the “community members who have suffered through years of aggressive, coercive, and retaliatory treatment at the hands of the Orleans Parish District Attorney’s Office.”

Orleans DA spokesperson Ken Daley emphasized to In Justice Today that the judges are ultimately the ones granting these warrants and that the DA has “no power” to jail witnesses without a judge. “Any decision to seek a material witness warrant approval from a judge is made with great care, requiring extensive discussion of possible alternatives and ultimately requiring the personal approval of the DA or First Assistant,” Daley wrote in an email.

But the tide is beginning to turn against the practice.

Prosecutors in other parts of the country have pledged to stop jailing victims of domestic violence or sex crimes. Reform-minded district attorneys, like Distict Attorney Kim Ogg of Harris County, Texas, and candidate Joe Gonzales of Bexar County, Texas, have spoken out against the practice and have sworn never to detain a victim.

The criminal justice accountability group Court Watch NOLA has called onthe Orleans DA’s office to stop incarcerating victims of domestic violence and sexual assault, and at a minimum create a clear policy for when issuing warrants for other victims is necessary.

Louisiana lawmakers could also get involved if the Orleans DA continues detaining witnesses. Other jurisdictions around the country already have safeguards to protect witnesses from indefinite detention. Some states cap the amount of time witnesses may spend in jail, and others give them a right to counsel and a hearing to contest the warrant. New Jersey even requires that witnesses be held in “comfortable quarters and served ordinary food” rather than thrown in jail.

Still, Cannizzaro has resisted all calls for reform. Instead, he has blamed“partisan special interest groups, who strongly oppose my office’s aggressive pursuit of violent criminals” for challenging him on the issue. And his spokesperson Ken Daley argued after the May 9 federal court hearing on fraudulent subpoenas that ending the DA’s policy on material witness warrants would “dislodge the underpinning of our justice system, escalate incidence of witness intimidation, and further endanger our crime-weary community.”

“Asking a judge to detain a victim in any case is a tool of last resort, and is done only when the totality of circumstances show that to proceed otherwise would result in a dangerous defendant walking free to pose a continued threat to the safety of the community we are sworn to serve and protect,” Cannizzaro said in a statement emailed to In Justice Today. “Such occurrences are extremely rare in the nearly 7,000 cases we handle per year between Criminal District and Municipal court. But even as this issue has been grossly overstated, it would be unwise and potentially dangerous to issue any blanket policy that would prevent our ability to assess any criminal case on something other than its own individual merits.”

Several prominent victims’ rights groups disagree. Three victims’ advocacy organizations aligned with the ACLU and Civil Rights Corps against Cannizzaro in a brief filed in federal court in May, detailing how prosecutors are re-traumatizing and manipulating survivors of sexual assault and domestic violence through the use of material witness warrants.

The brief, filed by the Louisiana Foundation Against Sexual AssaultThe Domestic Violence Legal Empowerment and Appeals Project, and the National Alliance to End Sexual Violence, emphasizes that jailing witnesses and coercing testimony harms victims. They also argue that these tactics backfire by making witnesses even less likely to cooperate with law enforcement. “It is no stretch to conclude that the abusive subpoena and material witness procedures and retaliatory punishment…will chill the voluntary witness cooperation on which the successful prosecution of sexual assault and domestic violence cases so heavily depends,” they write.

And the groups take aim at the idea that the criminal justice system serves victims, particularly victims of domestic violence, at all. “The goals of victims often are not aligned with those of the criminal justice system,” their brief states.

2015 ACLU survey of advocates, lawyers, and service providers cited in the brief found that victims of domestic violence and sexual assault were especially wary of getting mired in the criminal justice system for three main reasons: They wanted “options other than punishment for the abuser, options that were not necessarily focused on separation from the abuser”; they feared “they would lose control of the process” if they continued within the constraints of the criminal justice system; and “they believed that it was complicated, lengthy, and would cause them to suffer more trauma.”

“In essence, power is shifted from the abuser to the state,” one survey respondent explained.

Far from working for them, the criminal justice system can cause even further damage to victims, the report stated. “The criminal justice system is not trauma informed and can re-traumatize a survivor of violence,” another respondent said. “Many survivors I have worked with that did go through the criminal justice system wish they had not after the fact because it negatively impacted their ability to heal from trauma.”

Further punishing traumatized victims simply confirms their worst fears about participating in the system. As the victims rights’ groups wrote in their brief in federal court, “The coercion and retaliatory punishment plaintiffs allege compounds that destabilization, thereby turning on its head the role the criminal justice system should play for crime victims and witnesses.”

Susanna Evarts, Adeel Mohammadi, and Hannah Schoen contributed research to this story.

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