Judge: Domestic violence law needs to be fixed or challenged

Procedures create hardships, some say

Advocate staff photo by HILARY SCHEINUK -- Glenn Scott of the Nubian Kruzers holds a candle during a candlelight vigil hosted by the Nu Omega chapter of Alpha Kappa Alpha in honor of their late sorority sister, Aleria Cyrus Reed, as well as other victims of domestic violence on Thursday, August 14, 2014 on the steps of the State Capitol. Earlier that day, new, stronger anti-domestic violence laws took effect to protect those who find themselves in abusive situations.
Advocate staff photo by HILARY SCHEINUK -- Glenn Scott of the Nubian Kruzers holds a candle during a candlelight vigil hosted by the Nu Omega chapter of Alpha Kappa Alpha in honor of their late sorority sister, Aleria Cyrus Reed, as well as other victims of domestic violence on Thursday, August 14, 2014 on the steps of the State Capitol. Earlier that day, new, stronger anti-domestic violence laws took effect to protect those who find themselves in abusive situations.

A judge Thursday lambasted a new state law that creates a “cooling-off period” in domestic violence cases, arguing state lawmakers — including four she dragged into court by appointing them to represent defendants — created an unworkable process.

“The Legislature needs to either rethink this, or somebody needs to file something challenging this,” 19th District Court Judge Bonnie Jackson said from the bench.

Her comment rankled some of the lawmakers, who accused the judge of using the back-to-back hearings for political theater.

The new law requires people accused of domestic battery to spend at least five days in jail before their bail can be set. A hearing must be held to give the judge time to review the case and provide stricter bail requirements, such as counseling or ankle monitors. It also allows the judge to hold the defendant without bail if there is evidence a danger exists to the alleged victim.

State Sen. Dan Claitor and state Reps. Franklin Foil, Ted James and Alfred Williams, all of whom are lawyers, were in Jackson’s courtroom Thursday because the judge appointed the lawyers to represent several recently arrested men at their bail hearings. The indigent defendants are accused of domestic abuse.

Claitor and James said Jackson’s in-court comments Thursday were neither the time nor place for the judge to air her thoughts.

“In there is not the place for her to make a political statement,” Claitor said, noting that the judge never addressed state lawmakers while the bill that became “Gwen’s Law” was being discussed at the Capitol. “That this is the law shouldn’t come as a surprise to anybody.”

James, who said the Legislature’s intent was to protect domestic violence victims, acknowledged that “every law that we pass is not perfect.”

“This was definitely not the right way for her to make that point,” he added.

Foil spoke privately with Jackson at the bench and said afterward he invited her to come speak to the area delegation about her concerns with the new law.

The hearing differs from the normal bail-setting process. Normally, bail is set based on an accused offender’s crime and criminal history. The new domestic violence law requires a full-blown hearing with witnesses and arguments, and it calls on the investigating police agency to have completed an initial report and turned it over to prosecutors.

Mike Mitchell, the chief public defender for East Baton Rouge Parish, was standing next to a domestic violence defendant when the judge essentially encouraged a legal challenge of “Gwen’s Law” and said afterward his office is seriously considering just such a move.

“It’s a bigger problem for the (Public) Defender’s Office because we don’t have the personnel to provide attorneys in such a short period of time. We’re already chronically short-handed,” Mitchell noted. “There’s no way for my office to be effectively prepared for these hearings in that time period.”

“It wreaks havoc with the system,” he added. “We’re going to take a close look at it and see if we can challenge it.”

Mitchell also pointed out that Louisiana law requires bail to be set within 72 hours, or three days, of an arrest, but Gwen’s Law mandates a contradictory hearing within five days before bail is set.

“I think the (new) statute is fraught with due process and equal protection problems,” he said.

The law took effect Aug. 1.

East Baton Rouge Parish District Attorney Hillar Moore III acknowledged that the law is cumbersome and said his office intends to work with the court and law enforcement agencies to address the concerns raised by Jackson and Mitchell.

“There are ways we can improve the legislation,” he said.

Jackson said the Legislature did not consult with the court about whether the new law would be “workable.”

“Obviously, it is not,” she said.

Jackson also stressed that she takes domestic violence “very seriously” and said, “Nobody is more concerned about it than the court.”

Louisiana ranks second in the nation in the number of homicides related to domestic abuse.

During several of the hearings, prosecutor Melanie Fields told Jackson the District Attorney’s Office had not yet received the initial offense reports from the arresting agencies.

“That’s going to be the problem in a lot of these,” the judge replied.

Mitchell told Jackson he has nothing to contradict if the state offers no new evidence. In some of the cases, Fields offered the defendants’ rap sheets and the affidavit of probable cause for their arrests.

In the case of one defendant, who is charged with felony domestic abuse battery, Jackson set his bail at $10,000, issued a protective order and ordered him to complete a domestic violence course.

Another defendant was also arrested Monday for domestic abuse battery, but because Fields had not received any reports from the arresting agency, the judge delayed his hearing until Friday.

In the case of a third defendant, who was arrested Monday on two counts of domestic abuse aggravated assault and one count of simple arson, Fields said the initial offense report was unavailable, and Mitchell said he was unable to issue subpoenaes due to the shortage of time.

Jackson set the woman’s bail at $3,000 after she indicated she would not be returning to the victim’s home but would be living in Mississippi. The judge said she is to have no contact with the male victim.

Gwen’s Law is named after Gwen Salley, 39, of Desoto Parish. Just days before her death, her estranged husband was charged with false imprisonment, unlawful possession of a dangerous weapon and aggravated assault with a firearm in connection with an incident involving her. He was out of jail on bail at the time he fatally shot her and then himself.

The incident occurred May 2 with the legislative session’s end a month away. She was seeking a divorce at the time.

The new law requires a contradictory bail hearing for a felony offense against the defendant’s family or household member or dating partner. If bail is allowed, the court could require wearing of an electronic monitoring device.