The 23-year-old college student was in bed when her fiancé, Joshua “J.P” Thomason, came home after an evening of drinking and darts at a local tavern. Earlier in the day he had berated her about footprints in the snow outside the condo they shared on a quiet street in Kingston. Now he was in the next room shouting, accusing her of tampering with his mobile phone and demanding to check hers.
“I just felt this fear come over me because I knew what was going to happen, I could hear it in his voice,” said Aliyah, who asked that her real name not be used. “He came into the bedroom, ripped the covers off and pulled me out of bed, then he put me in a chokehold. I fell on the floor and passed out.”
While she was passed out, police said, Thomason stomped on her head, breaking her jaw and knocking out four teeth, then brought his foot down on her back so hard that, two months later, Aliyah says she still can’t sit or stand for long periods. When she came to, Aliyah she was bloodied and stunned. Thomason was gone. She called 911 and, within minutes Kingston cops had taken Thomason into custody a short distance from the apartment as he fled the scene in a car driven by a friend.
Thomason, 36, was charged with misdemeanor assault and the new felony crime of “strangulation,” which went on the books last year after being pushed for by advocates for domestic violence victims. With Thomason in jail on $50,000 bail and Aliyah determined to see him prosecuted, the relationship was over. But Aliyah’s journey through Ulster County’s system for handling the prosecution of domestic violence cases was just beginning. The process, which can stretch over months or longer, is a daunting one for victims, prosecutors, crime victim advocates and domestic violence caseworkers. It illustrates the complexities — and, often, the frustrations — of dealing with violent crime in the most intimate of contexts.
In 2009 and 2010, police in Ulster County logged about 5,000 “Domestic Incident Reports.” The DIR’s are mandatory whenever officers have reason to believe that a call involves violence or threats of violence between family members or intimate acquaintances, whether or not an arrest is made. Of those 5,000 DIRs, 800 resulted in arrests which may be prosecuted, if felonies, in county court or, if misdemeanors, in town court. Hundreds, if not thousands, more allegations of physical abuse are made in petitions filed in Ulster County Family Court by victims seeking orders of protection or child custody, but who have chosen not to go to police with their accusations.
“Five-thousand DIR’s in two years, that’s 200 per month, 48 each week, seven a day,” said Ulster County District Attorney Holley Carnright. “The numbers are staggering.”
Over the years, those numbers have risen — driven by laws which call for mandatory filing of DIRs and mandatory arrests in cases where cops can document violence or other criminal acts. New laws like the strangulation statute (which advocates say was needed because choking a victim unconscious does not always meet the “serious physical injury” threshold for a felony assault charge) and stalking have given prosecutors tools to hold offenders accountable. A system of crime victims’ advocates who can guide victims through family court or the criminal justice system, domestic violence courts with specialized services geared to the complex issues around partner violence and prosecutors and police specially trained in domestic violence issues have built up an infrastructure around the issues which was virtually nonexistent a few decades ago.
“Back when I first started if you went to a domestic violence incident you would do your best to calm the situation down. You’d tell the guy, ‘Look, go stay with your brother for the night’ and that was about it,” said Kingston Police Chief Gerald Keller, who joined the force in 1973. “And we’ve seen that that approach can lead to tragedy.”
For Aliyah, that infrastructure went into action as soon as while she was receiving treatment at Kingston Hospital. KPD officers accompanied Aliyah to the hospital and called in Deborah Foley of Ulster County’s Crime Victims Advocacy program. Foley remained with her at the hospital that night and the next day accompanied her to KPD headquarters to file a report.
The same day, Aliyah met KPD Detective Mike Benjamin. Benjamin, a veteran investigator, handles all domestic violence cases for the department. Keller assigned Benjamin to the domestic violence beat full-time in recognition of the complicated and potentially deadly issues involved.
“With Mike Benjamin you can be pretty sure that nothing is going to slip through the cracks,” said Keller. “These can be very dangerous cases and they develop over time. If you’re not very careful you can end up with a real tragedy, a death or a serious injury.”
Benjamin took photos of Aliyah’s injuries, took the clothes she was wearing the night of the attack and secured a cheek swab to match her DNA with blood found at the scene. A short time later, crime scene technicians arrived to secure other evidence, including floorboards from the room where the alleged assault took place. The focus on securing evidence thoroughly and quickly after the crime highlights one of biggest obstacles to domestic violence prosecutions, the reluctance of victims to testify against their abusers.
For victims of domestic violence, reasons to give up prosecuting abound. Victims may still be emotionally tied to their abuser and will reconcile even as the case moves ahead. Other times, financial dependence, pressure from friends and family or fear of more serious violence directed at them or their children may prompt victims to stop cooperating with prosecutors at any stage in the legal process. But by emphasizing evidence, domestic violence prosecutors have a way to go after abusers even if the victims decide they can no longer cooperate (hearsay rules generally bar the introduction of victims’ statements to police at the time of the incident as evidence; if prosecutors want to use victims’ testimony, it must be done at trial, on the witness stand). “Evidence-based prosecution,” along with mandatory reporting and arrest laws, also takes the onus of prosecuting a family member off of the victim and places it squarely on the criminal justice system.
“You need to be prepared, from the very beginning, when you get a case to go forward based on the evidence,” said Ulster County Assistant District Attorney Elizabeth Culmone. “You have to assume that the victim isn’t going to cooperate.”
Like Benjamin, Culmone spends virtually all of her working hours dealing with domestic violence. The 32-year-old Long Island native came to Ulster County from law school nearly four years ago. When Carnright took over the DA’s office in 2008, she was working in Kingston’s Domestic Violence Court prosecuting misdemeanor cases and passing more serious offenses along to county court. Carnright, impressed by Culmone’s rapport with victims and tenacity in the courtroom, assigned her to work on all felony domestic violence prosecutions.
“The reason that Elizabeth is where she is today is because she has the ability to talk to people,” said Carnright. “She can connect with victims, it’s a gift that she has.”
That gift, Aliyah said, was on display from the moment she met Culmone in the days after the assault. According to Aliyah, she spoke to Culmone almost every day for support and guidance. Culmone, meanwhile, sought Aliyah’s input on how to proceed with the prosecution.
When Culmone reviewed Aliyah’s medical records and decided that based on the injuries the charge should be upgraded to felony assault, she asked if Aliyah if she would object. When Thomason’s attorney offered a guilty plea in exchange for a minimum sentence of three years in prison, Culmone found the deal “completely unacceptable” but asked Aliyah what she wanted to do (Aliyah agreed that three years was not enough and Culmone came back with a take-it-or-leave it offer of five years in prison and five years post-release supervision).
“He’s a piece of shit and he deserves to go to prison for what he did,” said Aliyah, summing up her feelings about her former fiancé.
Culmone and Foley also talked Aliyah through the intricacies of the criminal justice system, spending hours preparing her to testify at a grand jury hearing in the case. And when, a few days after the alleged assault Thomason’s attorney requested a preliminary hearing to challenge his client’s detention in jail, Culmone displayed the steeliness beneath her gentle and friendly demeanor.
“Liz said, ‘If you make her testify, I’m going to take all deals off the table and he’ll get eight years,’” Aliyah recalls. “So he waived the hearing.” (Culmone said she took the tough stance because Aliyah felt that forcing her to testify at the preliminary hearing was Thomason’s way of “re-victimizing” her.)
Culmone has become an expert on the nuts and bolts of domestic violence prosecutions. The process begins full review of all DIRs involving the defendant. By reviewing the detailed incident reports, which may span years and several different partners, Culmone can get a picture of how the abuser operates and whether the case represents a single episode or an ongoing pattern. While evidence of “prior bad acts” is usually inadmissible as evidence, Culmone can use the file to help guide decisions on plea offers, for example demanding a maximum sentence from a defendant with a long history of abusing domestic partners.
More than a piece of paper
Orders of protection, which are typically issued shortly after an arrest, are often derided by victims and their advocates as “just a piece of paper,” but for Culmone, they can play a vital role in protecting victims and prosecuting offenders. While domestic assaults typically require victim testimony or strong physical evidence to successfully prosecute, a suspected abuser can be convicted on criminal contempt based on the testimony of a police officer who sees the suspect in the vicinity of the victim. According to Carnright, it is common for police officers responding to a domestic violence call to find that one party is in the house in violation of an order of protection issued after a previous incident. Between 2009 and 2010, Carnright said, there was a 27 percent increase in criminal contempt prosecutions related to domestic violence complaints, something he ascribed to a focus on aggressive prosecution of those who violate orders of protection. Culmone also serves as an on-call expert for police dealing with domestic violence investigations, fielding phone calls at all hours to answer questions about evidence collection and legal procedures with an eye towards building a solid case.
While the legal process played out, Aliyah found another source of support in Family of Woodstock’s Domestic Violence services. In counseling sessions and group therapy, Aliyah said she heard stories from women that were remarkably similar to her plight. According to Aliyah, Thomason’s violent episodes were sporadic and fueled by alcohol. After an attack there would be apologies, gifts of diamond earrings and new sneakers and “months and months of bliss” before the next beating.
“I thought that it was just because of his drinking and if he wasn’t drinking it would be OK,” said Aliyah. “But all the signs were there, I lost contact with my friends and family because they couldn’t put up with him. And when I went to the support group I heard all these stories that were just like mine.”
Kathy Welby-Moretti, who directs Family of Woodstock’s domestic violence programs, said support is essential for women to stay on track with a prosecution in a bewildering and impersonal justice system.
“For people who have never been involved in the system, it blows their mind and they don’t know what to do next,” said Welby-Moretti. “It’s overwhelming and it’s easy to say, ‘Let’s just forget it.”
Welby-Moretti said cases like Aliyah’s, where a domestic violence incident leads smoothly to a competent and thorough felony prosecution, are an example of what’s right with Ulster County’s justice system, But she adds that there is plenty of room for improvement. Welby-Moretti praised the work done by Benjamin, Culmone and Carnright but, she said, too many cases of serious abuse never make it to their jurisdiction. Welby-Moretti said that town court justices with little experience or training in domestic violence issues may be inclined to shift cases to family court where, in her opinion, there is little chance that an abuser will face serious consequences.
“(Carnright) does a great job, but these cases start out in little local police stations and with town justices,” said Welby-Moretti. “And if it doesn’t get taken care of properly there, it never gets to Holley.”
For Aliyah, the process is still going on. She had hoped that Thomason would accept the plea offer at a hearing on March 21, three months to the day when he allegedly assaulted her. But Thomason declined the offer and she is preparing to testify at a trial this summer. She still goes to Family’s domestic violence support groups and has begun informally counseling other women.
In a perverse way, she said, she feels lucky that Thomason’s alleged assault opened her eyes before she married him and found herself like other women in the support group — unable to escape under the burden of children, financial insecurity and the psychological scars left by long years of abuse. And she said she’s found a new goal.
“I want to be an attorney and do the kind of work that (Culmone) does,” said Aliyah. “She’s not just an attorney. She helps women get out of bad situations in their lives.”