Even without the help of the victim, Boulder County DA moves forward with domestic violence cases

Sep. 8--During a recent five-day domestic violence trial, a Boulder County jury heard from a lot of witnesses. They heard from detectives and neighbors and experts. But one person they did not hear from was the victim.

It is not an unusual occurrence in domestic violence cases, in which prosecutors often see victims either recant their statements, minimize the allegations or refuse to testify against their abusers.

"Eighty percent of victims in domestic violence cases fall into those three categories across the country," said Deputy District Attorney Anne Kelly. "So obviously, it is a problem district attorney's offices have to be very mindful of."

But even without a victim to testify, Kelly and the Boulder County DA's Office were able to salvage a split verdict out of their recent case, as the jury convicted 44-year-old Christopher Martinez of several counts including two counts of second-degree assault. But the jury also found Martinez not guilty of the two most serious counts he was facing, attempted murder and first-degree assault.

"The case was made considerably more difficult without the victim's testimony," Kelly said. "I think the jury did a good job, but I think the jury would have been more satisfied if they had heard from the victim. Considering the handicap we had going in, it's a result we are very pleased with."

Prosecutors said Martinez now faces five to 16 years in prison because he has prior domestic violence history. Longmont police said 46% of cases domestic violence cases in 2018 and roughly 43% of cases in 2017 involved repeat offenders.

"Domestic violence occurs behind closed doors in every part of the community, and given the nature of these offenses and the dynamics of the relationships, those cases present unique challenges," District Attorney Michael Dougherty said. "Our goal is to make sure it never happens again, because much like this case, there are far too many cases where these are repeat offenders."

'We made the decision to go forward'

According to an arrest affidavit, Martinez and his girlfriend got into an argument on July 29, 2018, in their apartment. Martinez broke the woman's iPhone when she tried to call police and then reportedly punched her in the face and put her in a chokehold.

Initially the victim was cooperative with police, Kelly said. But Kelly said the victim began visiting Martinez in jail and receiving letters from Martinez promising he had changed and that they could still have a life together.

"Often, victims believe the violence will stop when the defendant asks for forgiveness," Kelly said. "As time passes, the fear of the offender gives way to the feelings of love or cultural or religious factors."

In March 2019, over the objection of the District Attorney's Office, Boulder District Judge Andrew Hartman lowered Martinez's bond and altered some of the bond conditions. Within a week of Martinez making bond, the victim stopped all contact with prosecutors.

"Clearly, this defendant was engaging in communication with the victim that had an impact on the case itself," Dougherty said. "I'm not sure that would have been different in or out of custody. We may have had the exact same situation even if the defendant was held on bond the entire time.

"So we objected to the bond reduction, yes. But I do think judges are in a difficult position in these cases as well because of the dynamics involved."

Regardless of the reason, prosecutors suddenly found themselves without a victim. The only question now: did they still have a case?

"We made the decision to go forward without the testimony of the victim," Kelly said. "Even though the case was considerably more difficult without a victim present, we go forward if we think we have enough evidence. The Longmont Police Department did an excellent job gathering physical evidence and statements. We were able to put together a case that I believe was a very strong case, even without the victim's words."

'Hold offenders accountable'

With the decision made, Kelly had to go about explaining to the jury why they were not hearing from a victim. So she presented the letters Martinez had written to the victim from jail and brought in an expert to talk about why abuse victims often don't testify in their own cases.

"Frankly, we start as a district attorney with the challenge of explaining to a jury a counterintuitive set of circumstances," Kelly said. "Most of the time, victims have a desire for justice. In domestic violence cases that's not always the case, and that can be very difficult."

In addition to explaining the victim's absence to a jury, prosecutors have to find a way to still try and get her statements in front of a jury. The law does not allow prosecutors to present statements made by a witness to law enforcement if the defense can't confront that witness.

But Kelly said prosecutors can introduce statements the victim made to civilian witnesses, which is what they did in this case.

"That really is a testament to law enforcement, that they were able to, at a very early stage, collect statements we could use at trial," Kelly said.

Added Dougherty, "That is why we encourage people to report as early as possible, so we have a better chance to make sure the right outcome is reached."

Dougherty also credited the expertise of Kelly, who recently came to the Boulder office from Weld County.

"I feel extremely fortunate that Anne came to our office, and brought such energy and passion and skill in helping domestic violence victims," Dougherty said. "Watching her closing arguments highlighted all of those things."

Following the verdict, Hartman remanded Martinez back into custody as he awaits sentencing in November.

"We knew this would be a tough case, but thanks to the outstanding work of Longmont police and our staff, we thought we had a case that could be proven beyond a reasonable doubt," Dougherty said. "We believe the jury reached the right outcome, and we appreciate the work and attention they put into this case as well."

Dougherty said he is hoping to eventually have a family justice center that would have more integrated services for domestic violence victims. But in the meantime, prosecutors will be doing what they can to stand up for domestic violence victims, even when the victims themselves can't.

"We have to make that decision to fulfill our charge, which is to hold offenders accountable," Kelly said.

___

(c)2019 the Daily Camera (Boulder, Colo.)

Visit the Daily Camera (Boulder, Colo.) at www.dailycamera.com

Distributed by Tribune Content Agency, LLC.