August 15, 2002 News » Cover Story

Railroaded for domestic-violence defendants, El Paso Countys fast track may not always lead to justice 

Private Jason Ragsdale had never been in trouble with the law.

Then, about a year ago, a call to the police from his wife led to a rude awakening.

His wife had accused him of having struck her during an argument in their car. The following day, Colorado Springs police retrieved Ragsdale from Fort Carson, where he was stationed as an Army cook, and took him to the El Paso County Jail. There, he was booked and held overnight, without bond.

"It was kind of scary," recalled Ragsdale, now 22. "I didn't eat the whole time I was in there."

The next day at 1 p.m., he was taken in handcuffs to a courtroom, along with several other inmates, all arrested on suspicion of domestic violence. A magistrate advised them of their rights and set their individual bond conditions, before leaving the courtroom.

Then, behind closed doors and without any defense attorneys present, public prosecutors began offering each defendant a plea bargain. A deputy district attorney told Ragsdale he was facing charges of third-degree assault and could get up to a year in jail if the case went to trial.

However, if he would plead guilty on the spot, the District Attorney's office would let him get away with six months in jail and eight months of work release, along with two years of supervised probation and 36 weeks of domestic-violence counseling.

Ragsdale, who denies ever hitting his wife, says he tried to tell the deputy he was innocent. But, he says, "They didn't want to hear it."

Tired and bewildered from spending the night in jail, his hands still cuffed, and never having met with a defense attorney, Ragsdale signed the plea not realizing, he says, that it would get him kicked out of the Army.

"I didn't know what to do," Ragsdale said. "I got confused. That's why I pled guilty."

Hailed and attacked

Ragsdale was prosecuted under the El Paso County Court's domestic-violence "fast-track" program, which is designed to mete out swift justice to perpetrators who abuse their partners, based on the theory that holding offenders immediately accountable will help prevent future offenses.

The program was implemented in May of 1999 as part of a statewide trend, set in motion a few years earlier by changes in state law relating to domestic-violence prosecution and sentencing.

More than 3,300 people were prosecuted under the local fast-track program last year; 76 percent were men and 24 percent were women. In 6 percent of the cases, both parties in a dispute were charged.

The program is hailed by supporters as an effective way to hold offenders accountable. And while no one disputes the heinousness of domestic violence, the fast-track program has come under growing attack from critics who say it coerces defendants into pleading guilty by depriving them of essential constitutional rights, including the right to post bond and the right to be represented by an attorney.

Two case studies of fast-track programs elsewhere in Colorado, funded by the U.S. Department of Justice, have concluded that the fast-track approach "raises serious constitutional issues." And in May, a U.S. Supreme Court decision in an unrelated case, pertaining to defendants' right to counsel, cast further doubt on the fast-track model.

In El Paso County, criminal-defense lawyers who have reportedly seen their business drop off as a result of fast track have teamed up to study the feasibility of a constitutional challenge against the system.

It's not that domestic-violence perpetrators shouldn't be prosecuted, says one of the defense attorneys, Kevin Donovan. But the fast-track system, he argues, uses revulsion against domestic violence as a justification to deprive defendants of due process.

"The problem is, it's just butchering the Bill of Rights," Donovan complained.

Several former defendants interviewed by the Independent confirm that they felt they were treated unfairly by the fast-track process, and were coerced by a one-sided, hostile system into accepting pleas without fully realizing the consequences.

"It was so fast, and kind of confusing," said Lindsey Kelly, 20, who entered a guilty plea in fast-track court in May. "I didn't really have time to think about it."

No time to think

Prior to fast track, domestic-violence suspects were generally treated like any other defendants: If arrested, they could usually post bond and would be released with a temporary restraining order and a summons to appear in court at a later time.

The problem with that, according to prosecutors and advocates against domestic violence, was that many domestic abusers would "make up" with victims and persuade them to recant their testimony by the time their cases got to court.

"Domestic-violence perpetrators are very slick," said Doug Miles, El Paso County's chief deputy district attorney, who heads the fast-track program. "They tend to be extremely manipulative."

A victim might also have second thoughts about pressing charges as he or she began pondering the economic consequences of the offending partner possibly going to jail, domestic-violence experts note.

In 1994, the Colorado Legislature enacted new laws to crack down on domestic abuse, which caused judicial districts around the state to redesign their domestic-violence programs. The result, in many cases, was the "fast-track" model.

Under the 1994 laws, a police officer responding to a domestic-violence complaint must make an arrest on the spot if there's probable cause that a crime typically harassment or third-degree assault was committed. And, unlike people arrested for most other types of crimes, domestic-violence suspects cannot bond out of jail until a judge has advised them of the mandatory restraining order that's issued in all domestic-violence cases to protect the victim.

The result is that domestic-violence defendants are forced to spend at least one night in jail. Most are then brought straight into court the next day for their advisement.

Cutting deals

In El Paso County, however, an exception is made for people who are arrested on Friday or Saturday. Because there's no fast-track court during weekends, those defendants are eligible to post bond and go home after spending one night in jail and watching a videotaped advisement, in which a magistrate informs them of their rights and the mandatory restraining order. They must then appear in court the following business day, usually Monday.

Some defendants end up spending more than one night in jail if they are arrested on the weekend and can't afford to post bond, or if they are arrested so late at night that their cases can't be processed in time for the next day's advisement.

At the fast-track hearing, immediately after a magistrate has advised defendants and set their bond conditions, a "pre-trial conference" begins, during which the defendants most of them still in custody and wearing jail outfits and handcuffs are offered plea bargains by deputy district attorneys. During the conference, sheriff's deputies eject from the courtroom anyone who's not directly involved in the proceedings, and no defense attorneys are present.

Typically, a first-time offender pleading guilty to misdemeanor harassment will receive a two-year deferred sentence with 90 days of suspended jail. That means the defendant won't serve any further jail time, and the conviction won't be officially entered on the defendant's record, so long as he or she complies with certain conditions.

Those conditions include obeying a restraining order and completing 36 weeks of domestic-violence counseling. The counseling is time-consuming and can cost defendants many of whom have limited means as much as $1,100.

Moreover, the penalties often include restrictions against possessing a firearm and using alcohol.

Meanwhile, a defendant who pleads guilty to third-degree assault, also a misdemeanor, typically faces two years of supervised probation and a 180-day suspended jail sentence, and must also take domestic-violence classes.

Last year, 48 percent of those who pleaded guilty in fast-track court received deferred sentences, 29 percent received jail time and 23 percent were put on probation.

A defendant who rejects all plea offers and chooses to go to trial may get acquitted but could, if convicted, receive a harsher sentence.

Ready to sign

While many defendants might consider the plea-bargains a good deal, critics say the district attorney's office is taking advantage of a "coercive" environment in fast-track court to extract guilty pleas against defendants' better judgment.

Because they've been locked up overnight, defendants haven't had the opportunity to seek the advice of a defense attorney. Many of them are first-time offenders, inexperienced with the court system. And after their first-ever night in jail, during which many neither sleep nor eat, defendants may feel worn down and ready to sign just about anything put in front of them, critics argue.

"I suspect there are people who have good cases, who are taking deals so they can go home," said Jorge Sierra, head of the Colorado Springs public defenders office. "I'm not sure they're always doing it knowingly."

Indeed, several defendants told the Independent they signed pleas in the belief that it would get them out of jail faster which was the only thing on their minds.

"I plea-bargained because I didn't want to spend any more time in jail," Kelly said.

In reality, there is no obligation for a defendant to take a plea bargain in order to get out of jail that day. If a defendant has qualified for a personal-recognizance bond, he or she can reject the plea offer and return for a later court date, at which time a plea offer will usually still be available. In the meantime, the defendant can seek a private attorney or apply for assistance from the state public defender's office.

"I didn't hear anything about that until after," Kelly said.

Defendants also aren't always fully informed of the consequences of signing a plea agreement, critics argue. In some cases, a guilty plea can result in a defendant forfeiting future rights to own a gun. If a person is in the military, he or she may be kicked out of the service. A foreign citizen pleading guilty, meanwhile, could risk deportation.

"You're attacked by a bunch of DAs who all say, 'This is the way you can get out of jail,'" says Dan Kay, a local defense attorney. But the deputies don't advise defendants of the possible consequences, he says.

"I find this process to be absolutely despicable," Kay said.

In deciding whether to accept a plea, a defendant has no access to a lawyer who might offer sympathetic advice. While the courtroom swarms with deputy district attorneys, no one from the state public defender's office is present.

Under state law, a defendant isn't entitled to representation by a public defender until a pretrial conference has taken place and the prosecution has announced its intent to seek a jail sentence.

But Donovan argues that extracting guilty pleas from defendants who can't access a defense lawyer violates the right to counsel guaranteed by the Sixth Amendment. "Why do we insist on giving the lowest protections to our citizens?"

Making intelligent decisions

The District Attorney's office and the county's judges dismiss criticism of the fast-track system. Miles says he doesn't buy the claim that defendants are coerced into taking pleas against their better judgment.

"It is my feeling that adults, when given all the information they need and given their options, that they are capable of making intelligent decisions," Miles said.

During advisement, the magistrate in charge tells defendants that they have the right to seek an attorney, and that there's no obligation to accept a plea on the spot in order to get out of jail, Miles notes.

"Their options are presented to them very clearly," Miles said. "These are not complex cases. ... I don't think we're overrunning anyone's free will."

Magistrate Jeffrey Saufley, who typically presides over the daily fast-track court, says he goes beyond what's legally required in telling defendants about their rights. He says that if a defendant is in the military, he'll advise the person of the possibility that a guilty plea could lead to a discharge. And if a defendant is a foreign citizen, Saufley will mention the possible immigration consequences, he says.

None of this advice is part of the standard advisement given to all defendants in county court, but Saufley says he has chosen to add it.

Perhaps the most persuasive argument against the criticism, according to Saufley, is that plea rates haven't gone up under fast track. Approximately 60 percent of defendants plead guilty at pre-trial conference, which is about the same number that pleaded guilty prior to the fast-track program, he says.

"If it was so coercive to people that they felt forced to take a plea on that day, you would anticipate the disposition rate would be much higher," Saufley said. "But it is not."

Miles, meanwhile, says his deputy district attorneys are trained to "ask for the defendants' side of things" and be flexible in plea negotiations.

On the record

But several defendants interviewed by the Independent paint a different picture of what happens.

Despite Saufley's assurances, some former defendants say they signed pleas without realizing the possible consequences regarding military service or immigration status.

One defendant, who immigrated to the United States at the age of 9 and serves in the Air Force, almost got deported after pleading guilty to domestic violence against her husband.

The woman, who asked not to be identified, said she "finally lashed out" at her husband in October of 1999 after he had repeatedly abused her. She called police, but a witness saw her throwing a bottle at her husband's car as he was leaving the house, and she was arrested.

Her husband had previously been arrested for domestic violence against her, and he would be arrested five more times before the two divorced.

In court, the woman says, she was told that by accepting a plea agreement she would receive a deferred sentence, which would be "wiped off" her record after two years. "That's why I pleaded guilty," she said.

In reality, however, deferred sentences remain on a person's record. And in July of 2001, when she applied for U.S. citizenship, the Immigration and Naturalization Service denied her application because of her guilty plea. They then told her they might start deportation proceedings.

She sought the help of Donovan, who appealed her cause to the District Attorney's office, pointing out her ex-husband's record of domestic violence, her own lack of any prior offenses, her service record in the military, and the threat of deportation.

The District Attorney's office agreed to reverse her plea, and she has since become a U.S. citizen. But she is still disillusioned with her treatment in fast-track court.

"The DAs, they just want to get it done and over with," she complained. "I didn't know that pleading guilty was going to cause me to almost not become a citizen."

"Sign here, sign here, sign here."

Several defendants also say the deputy district attorneys they dealt with in fast-track court were adversarial and seemed uninterested in hearing their side of the story.

One such defendant, Tricia Smith, 29, was hauled off to jail in June following a dispute with her then-boyfriend. She claims her boyfriend was the aggressor but that he made a false report against her.

"Anybody can call and lie and say you're harassing someone, and - boom! - you're in jail, no bond or anything," Smith said.

The next day in court, Smith was mainly concerned about getting home to her two 5-year-old sons. "I hadn't slept, I hadn't eaten," she recalled. "I had twin boys that I was worried about."

The deputy district attorney who offered her a plea bargain, Mary Kay Kramer, showed little sympathy or patience as she raced through the proposed deal, Smith claims.

"I don't understand any law stuff," Smith said. "She's running through it like I'm a lawyer. I'm crying. She was like, 'Sign here, sign here, sign here.'"

Smith did catch onto one thing, she says: In addition to charges of third-degree assault and harassment, the DA's office was threatening her with a charge of child abuse, because the dispute had taken place in the presence of her children.

However, if she would take the plea, the child-abuse charge would be dropped. That was enough to persuade Smith. "I didn't know what to do," Smith recalled. "When she said, 'drop child abuse,' that's all I thought - I'm not a child abuser."

But following the pretrial conference, when magistrate Saufley asked Smith if she was guilty of the offenses to which she was pleading guilty, Smith replied, "no." As a result, Saufley rejected the plea and set the case for trial.

That didn't sit well with Kramer. According to Smith, the deputy district attorney threw a temper tantrum in court, accusing Smith of wasting her time, and threatening, "You better hope you're never in a courtroom with me again."

"I was just shaking and crying," Smith recalled. "I didn't know what the hell had happened."

Kramer subsequently wrote a letter of apology to Smith. She didn't respond to a request for comment from the Independent. However, her supervisor, Miles, said he believed it was an "isolated incident" and not a reflection of what normally goes on in the courtroom.

Kramer was having a stressful day, as her home was being threatened by the Hayman wildfire, Miles said. Still, the behavior was inexcusable, and Miles and Kramer agreed that she should apologize, he said.

"We're all human beings, ultimately, and none of us are perfect," Miles said. "The whole system is subject to human error."

As for allegations that deputies won't listen to a defendant's side of the story, Miles said, "We simply don't have half an hour to talk with every defendant."

Smith's assessment is more blunt. "They don't even care about the truth," she said. "It's unbelievable."

Relatively inexperienced

Many of the deputies working the fast-track court are young and relatively inexperienced, Miles acknowledged. "County court involves people who are brand-new deputies, and it's an ongoing training process. ... I'm not going to stand here and say everything is done perfectly by every deputy."

Sometimes, mistakes or allegations of unfair treatment lead to pleas being reversed or adjusted upon review.

In July 2001, Joe Niedens, 42, pleaded guilty to harassment against his ex-girlfriend in Colorado Springs, although he says he had extensive proof that he was innocent. He received two years of supervised probation, during which he was ordered to complete domestic-violence counseling.

Niedens had been arrested in Aurora, where he spent two nights in the local jail before being extradited to El Paso County. He then spent two more nights in the El Paso County Jail before being taken to the fast-track court.

"I was not even coherent," Niedens recalled. "The DA said, 'Sign here, and you'll get out of jail this evening.' I would have signed my own death certificate ... I was desperate."

The deputy district attorney "never asked for my side of the story," Niedens said. "I kept telling them, 'I didn't do this.'"

After getting out, Niedens went to a doctor, who signed a note stating that Niedens exhibited "dehydration to a point that it could have affected his cognitive abilities" and that this might have caused him "to make decisions that he would not normally make."

Niedens subsequently hired an attorney, who argued that Niedens' plea had been coerced. The District Attorney's office agreed to reverse his plea and give him a deferred sentence instead.

Still, if Niedens had known what he was doing, he would have opted for a trial and proven his innocence, he maintains. Now, he still has to take expensive counseling classes. He also spent $5,000 on an attorney.

"It's a racket," Niedens complained. "I'm still livid about it. It was not fair. It was not right."

Taking it seriously

Aside from the due-process concerns, those who work to prevent domestic violence locally say they have a favorable impression of the fast-track system.

"I think that this community does a reasonably good job in terms of domestic-violence prosecution," said Cari Davis, director of TESSA (Trust Education Safety Support Action), a local domestic-violence prevention program. "I think that the DA takes it seriously, and that's not necessarily the case in many communities."

Davis says that because her organization works mainly with victims, she isn't familiar enough with defendants' due-process concerns to comment on them.

However, "We believe that if you can hold people accountable for violent behavior and do that in a timely fashion, then they are going to be less likely to reoffend," Davis said. "So the notion of a fast-track program, wherein people are held accountable [within a short time], I think, in general, our organization supports."

Detective Howard Black of the Colorado Springs Police Department, who has worked with domestic-violence cases for 18 years and helped devise the fast-track program, says he also continues to believe in the fast-track concept.

"There's no data to back this," Black admits, but "one positive sign that we've seen is, when we have consequences as close to the time of the act as possible, we see perpetrators being more responsive to the law."

Miles, meanwhile, says statistics suggest law enforcement's response to domestic violence is working. The first year of the fast-track program, there were 3,600 cases, he says. Now, despite population growth, the annual caseload is down to about 3,300.

Recidivism, however, continues to be high: Last year, 37 percent of all the cases involved repeat offenders.

One-quarter women

Still, many concerns and questions linger about the program, and defendants and their attorneys aren't the only ones raising them.

Despite her general support for fast track, TESSA's Davis has one concern of her own: "The fact that approximately one-quarter of the defendants in fast track are women is concerning to us."

According to national statistics, only about 5 percent of domestic-violence perpetrators are women, Davis says. The discrepancy, she says, may indicate problems with the state's mandatory-arrest law in domestic-violence cases. Perhaps, Davis says, police are arresting too many women who were acting in self-defense.

"Why would there be 24, 25 percent female offenders, when nationally, it's much more like 5 percent?" she wondered. "That just raises the question for me, What's going on here? Are we arresting the wrong people?"

Black, of the Springs police, acknowledges that police responding to domestic-violence calls have a difficult task in determining who the aggressor was. "Are we arresting self-defending victims?" he asked rhetorically. "Of course, that happens."

Meanwhile, the Colorado Coalition Against Domestic Violence, a statewide advocacy group, noted in a study last year that the fast-track model has "a whole range of ramifications for female defendants."

Women arrested for domestic assaults are more likely than men to enter a guilty plea in order to get out of custody, the coalition cautioned. "Since women are likely to be the primary caretakers of the children, their decision is often influenced by their need to return home to their children."

In 1999, the Institute for Law and Justice, a private research organization, identified several concerns with fast-track programs in Pueblo and Durango, in studies funded by the U.S. Justice Department.

Fast track does have advantages, the institute found: "The combination of swift prosecution, treatment and supervision [of defendants sentenced to probation] is a positive outcome and goes a long way toward meeting the goal of community safety."

However, the fast-track process "raises serious constitutional issues," the institute also concluded.

"Of key concerns is the lack of counsel during plea negotiations," the institute observed. Without a defense attorney looking out for them, defendants "may feel coerced into pleading guilty in the belief that it will eliminate further court hearings and the need to take time from work to attend court."

Moreover, "since fast track increases the number of guilty pleas, and hence, the District Attorney's conviction rates, there may be an unstated incentive to prosecute borderline cases," the institute surmised.

Ultimately, the institute concluded, "the legalities of fast-track prosecution are a matter for state and perhaps eventually, federal authorities."

Entitled to representation

Appeals to higher authorities may indeed be in the works. In May, Donovan filed a motion in District Court asking for an injunction against the fast-track system, shortly after the U.S. Supreme Court announced a ruling in a case known as Alabama vs. Shelton.

In a 6-3 decision, the court found that criminal defendants are entitled to a public defender not only when a prosecutor asks for a "straight" jail sentence as is currently the criterion in Colorado but also when a prosecutor merely asks for a suspended jail sentence.

Since most fast-track defendants receive suspended jail sentences, the ruling strengthens the argument that they are entitled to representation, Donovan argues.

His motion was dismissed, however, because it was filed on behalf on "John Doe" and not on behalf of an actual defendant.

Meanwhile, Donovan and other criminal-defense attorneys have hired local constitutional expert Craig Cornish to study the fast-track system. Cornish hasn't reached any conclusions yet but says he's focusing on the constitutionality of the state law that denies domestic-violence suspects the right to post bond prior to their pre-trial conference.

Letter of the law

In the meantime, several changes that could alleviate concerns about the fast-track program appear possible if those involved with the program would agree to them.

For instance, says Donovan, if defendants arrested on the weekend are allowed to post bond after watching a videotaped advisement, why can't everyone just watch a videotape right away and then post bond? That way, he says, defendants could go home, think about their case, and obtain a lawyer if they so desired.

Saufley says it could be done in theory, but that he isn't sure it would be found compliant with state law. In fact, the current practice of letting those arrested on the weekend post bond after watching the tape may not be compliant, he said, "but nobody has challenged that."

Donovan also points out that the court isn't legally required to hold a pre-trial conference, during which deputy district attorneys offer defendants plea bargains, immediately after the advisement and bond setting.

In Denver County Court, plea bargains aren't offered at the time of the advisement, according to Margaret Abrams, a program coordinator with the Denver District Attorney's Office.

Instead, most defendants can post bond and go home. Plea bargains are usually first offered at a court appearance three days later, where both prosecutors and public defenders are present, Abrams says.

Miles, however, says that might defeat the purpose of fast track, which is to seek immediate accountability.

A little over a year ago, the Colorado Springs public defender's office proposed another remedy: allowing a representative from the office to give fast-track defendants a collective advisement emphasizing defendants' rights.

"We felt that, maybe, the fast-track advisement [given by the magistrate] wasn't adequate," said public defender Bill Martinez. "We felt it complied, maybe, with the letter of the law, but not the spirit."

But the county's judges wouldn't allow it.

"We weren't going to have individuals come in here and give speeches," said Saufley, who maintains that most of what the public defenders wanted to say is already included in his own advisement.

Barney Iuppa, who was the presiding county judge at the time, claims the public defenders office could find other ways to participate in the process but hasn't pushed the issue, because representing domestic-violence defendants would strain the office's resources too much.

"They just don't want to get involved," he said.

Money and reputation

Meanwhile, thousands of people continue to deal with the consequences of judgments imposed under a system that may or may not be constitutional.

Jason Ragsdale, who now lives in Petersburg, Va., hired an attorney and got his original plea reversed last fall, by arguing that it had been coerced and wasn't based on the facts of the case. His Colorado Springs attorney, Larry Galka, pointed out to the District Attorney's office that Ragsdale's wife had a prior record of domestic violence, whereas he did not.

Given the evidence of the case, there's no way Ragsdale would have received six months of straight jail had the case gone to trial, Galka maintains.

Ragsdale settled for a better deal, pleading guilty to harassment and receiving a deferred sentence, with 90 days of suspended jail.

Still, the experience has left him cynical about the fast-track program.

"I think it's a money thing and a reputation thing," he says. "They can say, 'We locked up all these people this year, and we didn't spend any money on public defenders.'"

Tricia Smith, who is still awaiting trial, is similarly disillusioned.

"It ain't about justice," she said. "That's for sure."

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