Fatality Review Bulletin
Summer 2002, Volume 1, Issue 2
Neil Websdale and Byron Johnson graciously asked me to discuss my thoughts on domestic violence fatality reviews based on my experience as a trial judge sitting in family and criminal court since 1979. During that time, I heard a variety of domestic violence cases including felonies, misdemeanors, restraining orders, divorce custody matters and child abuse and neglect cases. As senior (or presiding) judge of the Honolulu Family Court from 1994 to 1997, I convened and participated in several domestic violence fatality reviews. Most of those tragic deaths were widely publicized in the media. The court in one form or another knew of each case as we have a unified family court in Hawaii, which hears virtually all cases involving children and families. A great deal was learned from each of these reviews so the system could be improved. This motivated me to write several articles on domestic violence death reviews and on preventive, restorative and therapeutic justice for families and children. In the final analysis, I wrote for myself so I could better understand the system and honor the families and the children we serve.
1. Are domestic violence fatality reviews worth it?
We are all aware that domestic violence fatality reviews are being conducted across our country in a variety of forms. While hospital morbidity and mortality conferences have been around for years, these justice system reviews are in their infancy and long overdue. In my view judges have an important role in guiding the design and implementation of these reviews consistent with the ethical limitations that guide us. Judges need to ask if such reviews are truly preventive in nature and reduce the risk of future domestic homicides? We need to ask if restorative justice principles are served as victims and families struggle to understand how and why their loved one died or whether “closure” is another buzzword? Do such reviews constitute therapeutic jurisprudence because they build public trust and confidence in the justice system through a respectful and transparent review of how the system should work? These nagging yet legitimate questions continue to bedevil policy makers including judges and justice professionals. Is the effort spent in fatality review worth the media attention, potential liability and the strain on inter agency relationships? Wouldn’t publicity and litigation have occurred anyway?
In my view, each community, including the judiciary, the bar, law enforcement and the public, must decide whether they want a domestic violence fatality review and what form it might take. Domestic violence fatalities are nothing new to the American public and those of us in the justice system. Just look at the recent high profile Hollywood cases. The media have an important stake in this process, however uncomfortable it makes the justice system participants feel. Also, families retain personal injury attorneys to file lawsuits seeking information and fair compensation in hopes of some measure of closure. Both avenues understandably may cause public officials to close ranks, cite confidentiality and not cooperate. It is my view that such reactions are counter-productive and do not build public trust and confidence in court systems. More important, don’t we as judges and public officials have an affirmative duty to improve the system using concepts of preventive, restorative and therapeutic justice?
We do know that fatality reviews are not an easy sell or a quick public relations palliative. Yet, over the years we have seen other systems such as hospitals, air transportation, and nuclear power carefully review mistakes made so that future errors can be systemically avoided using redundancy measures such as back up systems, multiple check lists and more. In effect, the public right-to-know and the professional self-scrutiny of agencies enhances the public trust.
2. What role do concepts of preventive, therapeutic, and restorative justice play in domestic violence fatality reviews?
I suggest that concepts of preventive law, therapeutic jurisprudence and restorative justice all support some kind of domestic violence fatality review process. Values of transparency, accountability and respect for those who have been killed on our watch inform my opinion. It is myopic to think that the media and others will look the other way. We as justice professionals must be proactive and conduct ourselves in a responsible way that improves the system and builds the public trust and confidence. What fatality review process looks like may vary based upon the local judicial, legal and community culture. It may be private, confidential and optional or it may be public, open and mandatory with wide variations in between. It may proceed in house, through a legislative mandate or by a memorandum of agreement. Models certainly abound and have been discussed in the literature.
Preventive law has gotten recent cachet in the academic and popular legal literature. It is the concept that the legal institutions should actively promote safety and not increase lethality and the risk of injury. The medical profession has recognized and addressed the phenomenon. They call the inadvertent harm caused by hospital or medical care an iatrogenic effect or medical mischief. Similarly, the justice system can create at times what I have called the jurigenic effect, i.e. harm inadvertently caused by the system to those very people we hope to protect. Certainly the failure to set proper bail, the awarding of custody to a violent parent, the failure to craft a safety based restraining order or to conduct a valid risk assessment in imposing a balanced sentence can all contribute to the death of a family member. Others may argue that these harms are inevitable and unavoidable. Some contend that our domestic violence justice system is highly fragmented and not really a system at all. Ideally, carefully designed and conducted death reviews will help the system become safer, fairer, seamless, and coordinated.
Similarly, therapeutic jurisprudence as widely discussed in the legal literature is the lens that is used to assess whether judicial intervention is conducted in a way that promotes the respect and dignity of each party. Therapeutic jurisprudence engages other disciplines such as medicine and mental health to provide needed court ordered services such as substance abuse treatment, probation and domestic violence intervention. Therapeutic justice, a close cousin to preventive and restorative justice, addresses the need for the legal and judicial process to be accessible, timely, civil, user-friendly and fair to everyone, including victims and their families. The closes analogy is viewing the courthouse and the legal process as the judicial equivalent of a community hospital. Certainly, the legal intervention should not increase the risk or cause harm to the very people we try to protect.
Lastly, what about the concept of restorative justice which attempts to make the community and family whole again? Is such a goal unrealistic? In my view if the death review is fair, predictable, and open, the victim’s family will hopefully buy-in and participate. These families may or may not experience closure by helping improve the system. In a particular case, it could be the domestic violence homicide was situational, inevitable, and not preventable. Or it could be that there were large or small systemic glitches or flaws that can and should be corrected, using check lists, protocols and redundancy (or back up) measures. In my view, public accountability should outweigh confidentiality and concerns about liability and publicity. One need only look at how certain corporations have handled and mishandled major critical incidents or crises to see the American public and the media will no longer tolerate circling the wagons, handing out partial facts and engaging in unacceptable platitudes. In my view justice officials must accept responsibility for the system and address any problems in reasonable and accountable ways. It is society’s way of holding itself accountable as well.
Conclusion
Domestic violence fatality reviews are here to stay. They will assume a variety of forms depending on their leadership/membership and the community in which they emerge. Judges can influence these reviews by virtue of our independent and neutral role as part o the third branch of government. We have a duty to improve the administration of justice and promote public trust and confidence in the justice system. We should study this concept and apply it where it makes sense. It is a concept that will hopefully save lives and preserve fairness at the same time.
