A new report by the watchdog group Court Watch NOLA reveals that the Orleans Parish District Attorney Leon Cannizzaro’s office refused to prosecute 47 percent of felony domestic violence cases in 2019. Late last year the DA received criticism when it was revealed that the office had dropped 83 percent of misdemeanor domestic violence cases in New Orleans Municipal Court in 2018 and 2019. 

Simone Levine, director of Court Watch NOLA, said the refusal rates for both misdemeanor and felony cases reflects a broader disregard for victims of crime in the New Orleans criminal justice system. 

“I think it sends a simple message. I think that crime victims are simply not being listened to. I don’t think that they are being involved in the process,” Levine said of the refusal rates. “I think that they’re forgotten. I think that they’re forgotten by everyone.”

The section of the report contends that in general crime victims in New Orleans — specifically victims of domestic violence — are not being provided with adequate resources and are often left out of the criminal justice process that is intended to keep them safe. 

In an email to The Lens, Ken Daley, a spokesperson for the District Attorney’s Office, dismissed the annual Court Watch reports as generally containing “dubious research, false assertions, intentionally misleading claims, and anti-law enforcement commentary.” 

“They lack objectivity and relevance, serving only the ego and biased viewpoints of the former public defender serving as their author,” Daley said of the reports. Levine previously served as a public defender in New York. She also worked as a prosecutor in the New York State Attorney General’s Office.

Regarding the refusal rates, Daley pointed to the difficulty in proceeding with cases without cooperation from essential witnesses.

“It is unfortunate when domestic violence cases become unviable because an essential witness recants or fails to appear, because corroborating evidence often doesn’t exist and most judges still require a victim for a case to proceed,” Daley said. “But, as reflected by the National District Attorneys Association, this is a problem encountered nationwide and not something peculiar to New Orleans.”

The Court Watch report acknowledges that the problem of witness’ in domestic violence cases recanting is a national problem, but also notes in a guide to best practices for domestic violence prosecutions the National District Attorneys Association says that “prosecutors should avoid dismissing a case simply because the victim is uncooperative and instead double their efforts to hold the defendant accountable.” 

At a press conference last December, after a report by data analyst Jeff Asher showed that the majority of misdemeanor domestic violence cases were dismissed, Cannizzaro similarly said that it “was virtually impossible to prosecute these low-level misdemeanor cases in Municipal Court absent a willing and cooperative victim.”

The DA’s office has taken aggressive, and often highly controversial, measures to try to secure victim and witness cooperation in the past. Cannizzaro’s office has been criticized over its use of material witness warrants, which allow the arrest of victims and witnesses who have allegedly refuse to cooperate with prosecutors. And for decades, the DA’s office used so-called “DA subpoenas,” legally invalid documents that called witnesses and victims in for off-the-record meetings with prosecutors and threatened them with arrest if they failed to comply. There have even been cases where the DA’s office used both tactics on the same crime victim. 

The Court Watch report does not take a position on whether or not the District Attorney’s office should necessarily prosecute more domestic violence cases, but instead advocates for more funding for victim services both within and outside of the criminal justice system— which will then make them more likely to come forward in cases. 

The recommendation comes weeks after the DA’s office announced that it had furloughed about a third of its staff due to shortfalls in court fees and other revenues due to court closures during the COVID-19 crisis. The furloughs included some victim counselors, The Times-Picayune/New Orleans Advocate reported.

“Adequate resources and support must be directly provided to victims if we expect them to testify against their aggressors,” the report reads. “Diligent care must be spent to ensure that those resources that are earmarked and devoted to witness and victim protection are, in fact, provided to the victim and not just the agency that requests them.” 

Evidence-based prosecution

Mary Claire Landry, executive director of the Family Justice Center in New Orleans, said that many victims are scared to speak up and take part in prosecutions specifically because the system is failing to take domestic violence cases seriously — by downgrading felony domestic violence cases to misdemeanors, failing to recognize risk factors when setting bond, and failing to move forward with cases even if victims don’t want to testify. 

“I think survivors don’t feel they’re going to be safe if they testify,” she said. “We know these are difficult cases but we also don’t believe that the entire responsibility should be placed on the burden of the client, of the survivor, to provide the evidence. We know that the judges really like the victims to be present in the courtroom, but we also know that there are lots of other types of evidence that could be used.”

“Evidence-based prosecution is done all across the country where you don’t have to necessarily rely on the victim to be responsible for putting the person — for showing up to the court hearing and being the sole evidence in the case,” she said. “So that’s been our position.” 

Levine said in New Orleans, the District Attorney’s willingness to jail victims and use other aggressive measures has hijacked the conversation, and prevented a productive debate around best practices and evidence-based prosecution. The new Court Watch NOLA report found eight instances in 2019 where the DA’s office sought to jail victims, eight of whom were domestic violence victims. 

“We haven’t even gotten to the national dialogue level,” she said. “We haven’t even gotten to the best practices conversation that we need to get to here in New Orleans.”

Kelly Orians, co-director of the First 72+, a re-entry program in New Orleans that provides resources to the formerly incarcerated, said that both her personal and professional experiences have led her to believe that a solution to the problem of domestic violence is not going to be found in the criminal justice system, but elsewhere.

“As someone who survived domestic violence, and subsequently chose to not prosecute my abuser, someone whose high school classmate was murdered by the father of her children — after she paid the bail to get him out of jail — and someone who works every day to support families impacted by incarceration, I know that the district attorney’s office, the public defenders office, the police department, and the criminal district court system are simply not capable of achieving justice for victims of domestic violence, or of holding people who abuse their partners accountable,” she said.  

“Some women have deeply personal and very valid reasons why they choose to not participate in the prosecution of their abusers. Although many actors in these institutions are well – intentioned, the adversarial criminal justice system is insufficient, and it cannot handle the unique and delicate situation of domestic violence, we need a radically different approach to keep people in our community safe. “

Resources

Orians said that addressing some of the root causes of stress in the home would be a start in more effectively dealing with the problem. She pointed toward raising the minimum wage, expanding affordable housing so people don’t stay in abusive relationships in order to maintain a living arrangement, and a more accessible family court system so people can get and enforce parenting plans and custody agreements more easily, and more accessible mental health care and counseling.

The Court Watch report specifically focuses on funding for victims resources. 

“There is adequate evidence that the few community groups that provide direct victim support and services are deeply inadequately funded,” the report reads. “New Orleans must continue to discuss this issue publicly until we arrive at a place where victims are treated appropriately and they, not public officials, are empowered by the proper resources to gain true safety, instead of those resources being allotted to public officials.”

The report says the responsibility of ensuring that funding falls on many system actors, from the DA’s office, to the mayor, to the City Council. 

Mary Claire Landry said with more resources the Family Justice Center would be able to expand their services, which are in high demand. 

“We have 250 people on our waitlist for counseling services,” Landry said. “Over 50 children on our waitlist for our counseling services. The thing that we know is that if we could intervene and mitigate the trauma for these children and these adults early on we could really address a lot of fear and concern and safety of these survivors.”