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Matthew Fraidin

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Could More Public-Interest Lawyers in D.C. Help Prevent Domestic Tragedies?

Posted: 09/27/11 03:54 PM ET

Could a lawyer have saved Alecia Wheeler's life?  As the D.C. Council considers how to spend the $89 million surplus discovered recently by Chief Financial Officer Natwar Gandhi, Ms. Wheeler's tragic death reminds us that pennies spent on public-interest lawyers can provide pounds of cure.

            Ms. Wheeler, the mother of four young children, was killed on September 13, stabbed to death in front of her four children.  The alleged attacker was Claude Kinney, the father of three of the kids.

            The Washington Post reports that Ms. Wheeler repeatedly turned to the legal system for help, obtaining temporary, two-week protection orders against her alleged killer, including one the day before her death.  But Mr. Kinney probably wasn't aware that Ms. Wheeler had obtained a stay-away order just the day before, because she obtained it in an emergency proceeding, and he probably hadn't been given a copy.

            And earlier, on August 29, Ms. Wheeler was denied a one-year protection order, when a Superior Court judge found she had not proven that Mr. Kinney had committed an offense against her.  American University law students who observed the hearing noted the judge's respectful demeanor toward both parties and his patience in handling the hearing.  And by all accounts (including my own students' experience in the Georgetown University Law Center Domestic Violence Clinic), this judge is thoughtful, thorough, and emanates decency from the bench.

            It seems likely, though, that Mr. Kinney had indeed violated the law and that Ms. Wheeler should have been awarded a restraining order.  So what happened?

            The most likely explanation is that the judge simply didn't have enough information.  Ms. Wheeler, like Mr. Kinney, appeared in court without a lawyer.  With only a handful of lawyers in the city who regularly represent domestic violence victims, and virtually none representing the accused, the D.C. Access to Justice Commission reported that in 2005, more than 98% of the parties in domestic violence cases had to steer through the legal system on their own. 

For the judges who daily try to sort through emotional, conflicting tales of who did what, if anything, to whom, the absence of lawyers often means a shortage of solid, reliable information.  From reports, it seems unlikely that Ms. Wheeler's case hinged on a disputed legal issue decided in Mr. Kinney's favor.  The true coin of the legal realm is facts:  what happened?  Who did what to whom, where and when?  And closing the "fact-finding gap" is where the good judge probably needed the kind of help that lawyers can provide.

            In domestic violence cases, the litigants' testimony often is the primary source of information for the judge.  Without a lawyer asking questions sequentially and with the goal of eliciting answers which amount to a legally-cognizable complaint, a story may emerge incompletely and disjointedly.  Facts which may be of great importance to the complainant may be of limited significance under the law, or the judge may misperceive their true meaning.   A judge listening to testimony ordinarily has no prior knowledge of the parties, and thus has no contextual background with which to understand what he or she is hearing.  The judge can't possibly know which facts are missing from a witness' recitation.  And with limited information and dozens of cases on the docket every day, no judge can effectively ask a lengthy series of follow-up questions to fill in the gaps.

And many litigants are not aware of the importance of marshaling additional corroborating evidence, such as witness testimony, telephone records, police reports, hospital records, and 911 telephone recordings.  For a woman fleeing or hiding from a batterer, especially if she is trying to care for children at the same time, building an air-tight case on her own is simply unrealistic.

That is where a lawyer comes in.  The District of Columbia is fortunate to have a strong community of committed anti-domestic violence advocates and legal services lawyers. We get that stellar service on the cheap: salaries for legal services lawyers start at about $40,000. And those resources are complemented by top-flight student law clinics, as well as pro bono lawyers affiliated with the D.C. Bar Pro Bono Program.

But nearly 4,500 people, mostly women, seek stay-away orders each year in the District of Columbia.  Using the Access to Justice Commission's estimate that 98% of litigants are unrepresented, that is too many chances for even the most careful judges to get it wrong.

And it's not only alleged victims who need lawyers.  Legal representation for alleged batterers would make it more likely that we'd get the right answers more often.  And my Georgetown colleague, Associate Dean Deborah Epstein, published a law review article pointing out that that social science research demonstrates that batterers who believe they have had a fair shake in court are more likely to comply with stay-away orders -- even if they disagree with them.

If Mr. Kinney killed Ms. Wheeler, there is no way to know for sure whether he would have been deterred by a protection order.  We can't even be sure that a lawyer would have helped Ms. Wheeler convince the court on August 29 that she was entitled to one.  We can't know whether a lawyer might have made sure Mr. Kinney was served with the temporary order Ms. Wheeler obtained the day before her murder.

But those are some of the ways lawyers (and clinical law students) add value.  Zealous advocacy requires thorough investigation and effective examination of witnesses.  Domestic violence lawyers are dedicated to achieving their clients' goals, and often accompany their clients to Metropolitan Police Department district offices, where they request immediate assistance in serving emergency protection orders. Unsurprisingly, judges themselves agree that victims represented by lawyers fare better in court than those forced to go it alone.

Nonetheless, in July, a House committee recommended cutting a 26% cut in legal services for people with low incomes, including domestic violence victims, taking funding back to 1999 levels.  Last Wednesday, the Senate Appropriations Committee recommended a more modest cut of two percent -- but with 60 million people eligible for legal services, even a small cut means that thousands more low-income Americans would be forced, like Ms. Wheeler, to stand alone in a courtroom, fighting for their lives.

Will the D.C. Council pay attention?  Last year, the Council provided approximately $3.2 million to local civil legal service organizations. But that wasn't enough to make sure Ms. Wheeler and thousands of other domestic violence victims had representation. As D.C. Access to Justice Commission Chairman Peter Edelman testified in April to the Public Safety and Judiciary Committee, the economic downturn of recent years has exacerbated an already dire situation for low-income D.C. residents with all kinds of legal needs. "In 2009 alone, requests for assistance increased by approximately 20%, concurrent with a substantial increase in the urgency of problems faced by poor families. In the same time period, the legal services network lost 25% of its revenue, forcing it to shed 12% of attorneys and nearly 40% of critical non-legal staff."  Recent reports of ongoing high D.C. unemployment paint a yet-bleaker picture of the vast number of domestic violence victims and others unable to hire lawyers on their own. 

As Council members weigh the many funding priorities competing for a piece of the $89 million pie, they should recognize the bang legal services lawyers provide for every buck. Studies show that legal aid more than pays for itself. Even more to the point, domestic violence lawyers make women safer by using legal avenues, such as child support actions, that reduce a victim's financial dependence on a batterer and eliminate one obstacle to ending a dangerous relationship.

The reality is that Superior Court judges, no matter how well-meaning, no matter how careful, can only decide cases on the basis of the evidence put before them. Lawyers can help domestic violence victims and other individuals appearing in court on their own to provide judges with the rich, textured, fulsome stories that help judges make well-informed decisions. Court has idiosyncratic customs of its own, and as in any strange land, visitors need caring, knowledgeable guides.

Dedicated, talented, expert lawyers and law students help a few domestic violence petitioners tell their stories in court every day. But there are too many potential Alecia Wheelers. In the wake of her violent death, Professor Edelman's plea to the Council in April seems ominously prescient. "Thousands of District residents," Edelman lamented, "[are] forced to navigate our complex court systems alone, in cases where the stakes could not be higher."