An unusual transaction takes place about twice a day at the district attorneys offices in St. John the Baptist, East Baton Rouge and Bossier parishes.
Someone has reported a crime, often alleging domestic abuse. Later, she gets cold feet, perhaps under pressure. So she comes in to sign a sworn affidavit explaining why she wants the charges dropped.
“It was a miscommunication and I don’t think I was hit in the mouth on purpose,” a Reserve woman wrote in May.
“I want to keep a good relationship with him for the children,” a LaPlace woman wrote in June about a domestic battery count.
“I feel that it was my fault that this happened. We are married and I was messing around,” another LaPlace woman explained.
“I was eight months pregnant and under a lot of stress,” a Lutcher woman told police last month, asking prosecutors to drop domestic abuse and criminal damage counts against a man.
In each of those cases, St. John Parish District Attorney Bridget Dinvaut’s office made an assessment of the situation and agreed to dismiss the counts. In other cases, Dinvaut hasn’t. Either way, the putative victim paid Dinvaut’s office $100 for the effort.
The practice of taking these formal requests and charging a “dismissal fee” quietly endures in at least three parishes and possibly others — so quietly that several prosecutors statewide said they were unaware that it goes on.
“In the history of Louisiana, that might have been a practice, but I don’t think there are dismissal fees now,” E. Pete Adams, executive director of the Louisiana District Attorneys Association, said last week. “I’m not aware of it, and I’m not aware of any authority for it.”
Some legal scholars and advocates bristle at the practice, calling it a potentially dangerous deterrent to reporting of domestic assault, particularly for poor people.
“It’s a really good way to drive up your homicide rate, because somebody in immediate danger needs to call 911 and not think twice about it,” said Tulane University law professor Tania Tetlow, a former federal prosecutor who has led efforts to reform the way domestic violence complaints are handled in New Orleans.
Tetlow said victims of abuse often recant, not because their initial report was false but out of fear of further violence. If changing their story is what it takes to escape more violence, she said, they should be able to do so without penalty.
“We all pay a great deal of taxes for that privilege,” she said. “Particularly in domestic violence, it can be too dangerous to follow through on prosecution. Even if you risk your life by testifying against your abuser, usually at best he’s going to get a misdemeanor conviction and come home seriously angry. So often, the best you can do is call for help to keep yourself safe and alive, but back down before he comes home.”
Burden on the poor
Katherine Mattes, director of Tulane’s Criminal Defense Clinic, offered similar criticism, saying the practice of charging dismissal fees flies in the face of victims’ rights laws geared toward removing hurdles.
“It’s just amazing,” Mattes said. “Once again, you find a sort of systemic arrangement that creates an undue burden on community members who are poor.”
In some cases, she added, people may be paying for the privilege of swearing to their own culpability in filing a false police report.
“They have your affidavit and your money,” Mattes said. “Now you’ve just proven it.”
Dinvaut’s office, which started assessing the $100 fee at the end of April, has collected it 33 times so far, according to a response to a public records request. Her office ended up agreeing to drop more than half of those cases. The vast majority were complaints related to alleged domestic incidents.
Although Dinvaut’s office cautions victims that it maintains discretion over whether to pursue prosecution, the affidavits may be exculpatory material that must be turned over to defense attorneys. That makes the filing of those statements a potential roadblock to successful prosecution.
Dinvaut did not return calls last week. An assistant said she was on vacation.
Under her policy, people who seek dismissal of a domestic violence complaint are referred to the Metropolitan Center for Women & Children for required counseling.
The center’s executive director, Darlene Santana, said the agency educates survivors on the dynamics of domestic abuse and can help with obtaining restraining orders. She said it doesn’t make any recommendations to prosecutors, nor was she aware of the dismissal fee.
“We’re just here as a help to survivors,” Santana said. “I wasn’t aware they had to pay to drop charges. I would think that would be a deterrent, yes.”
District attorneys in other area parishes — Orleans, Jefferson, St. Tammany and St. Charles among them — do not charge dismissal fees, officials said.
“We do not charge a fee for anybody to come in and express their desire to drop charges,” said David Wolff, chief of screening for Jefferson Parish District Attorney Paul Connick’s office. “I’ve never heard of it before.”
No law against fee
East Baton Rouge Parish District Attorney Hillar Moore said it’s a longstanding practice in his office. He said fewer than half of the requests result in a dropped prosecution, and then only after a lengthy review process that may include required counseling for the alleged perpetrator and a deeper background check.
Often the alleged perpetrator turns out to be the one paying the fee. The money goes to the DA’s general fund, Moore said.
Among the benefits of the practice, he said, is a more thorough review of the domestic situation.
“I think we’re protecting more by doing this,” Moore said. “We do all kinds of additional work. We really get down to the bottom of what’s going on. If you don’t really take these seriously, they come back as a murder victim.”
Moore said the fee “surely doesn’t cover the cost” of the extra work that goes into vetting the request for dismissal. He also acknowledged that “we don’t pretend (the fee) is covered under any statute,” but he added that no state law bars it.
A spokesman for Attorney General Buddy Caldwell’s office couldn’t come up with any state law authorizing such a fee.
Assistant District Attorney Melanie Fields, a special prosecutor for domestic violence cases in Moore’s office, pointed to an attorney general’s opinion from 2010 related to lobbyist registration fees. The opinion suggested that no legislative approval is needed to charge the public for functions that aren’t part of the agency’s mission.
Fields noted that victims could seek such affidavits instead through private attorneys and file them with the court.
“We’re in the business of preventing murder,” she said. “We’re never going to turn a victim away. Your tax dollars pay for prosecutors to prosecute. This is just a fee for a service that’s not a typical part of what we do.”
Fields said victims may have myriad reasons for changing their stories or seeking to dismiss charges, including fear. She described the process of requesting to dismiss a complaint as a benefit to public safety that results in “a small percentage” of actual dismissals.
The office received 34 requests to drop charges last month, Fields said. It is proceeding with charges in all but eight cases. In some of those eight, a decision to refuse charges may be conditioned on the defendant completing a 26-week counseling program, she said.
J. Schuyler Marvin, district attorney for Bossier and Webster parishes, could not be reached last week. A clerk in the DA’s office in Bossier Parish said the $100 fee won’t buy a dismissed charge but may lead to a lesser count. She noted that the fee was not refundable.
The practice doesn’t sit well with Mary Claire Landry, executive director of the New Orleans Family Justice Center, which works with police in aiding victims of domestic violence.
Landry called it a “horrific policy.” She said district attorneys should be making their own charging decisions based on evidence, regardless of whether victims change their minds. And she said it is “absolutely ridiculous that you should be paying the DA not to do his job.”
Landry said she would push for statewide legislation to abolish the practice.
Staff writer Maya Lau contributed to this story. Follow John Simerman on Twitter, @johnsimerman.