District Attorney Michael E. McMahon, seen in this 2018 photo, supports the use of electronic signatures in domestic violence cases. (Staten Island Advance/Jan Somma-Hammel)
SI LIVE: Electronic signatures: Boon to domestic violence cases, says D.A.; bad practice, lawyers counter
December 17, 2018
By Frank Donnelly
Domestic violence cases are notoriously difficult to prosecute.
Alleged victims often have a change of heart for variety of personal reasons. Some fear retribution if they pursue the case.
On Staten Island, nearly two-thirds of such cases were dismissed earlier this year.
And the numbers were even higher in other boroughs.
In a bid to stem the tide, District Attorney Michael E. McMahon turned to his colleagues in Queens whose dismissal rates in domestic violence cases were by far the lowest in the city.
For several years, Queens prosecutors have used simple e-mail correspondence to obtain victims' signatures on supporting depositions at the outset of the case to move it forward.
Previously, complainants had only signed those documents in person.
But in many instances, face-to-face meetings were difficult to coordinate. Accusers were hard to reach or had changed their minds by the time prosecutors located them, effectively scuttling the case.
McMahon said the results speak for themselves.
In April, 63 percent of domestic-violence cases on Staten Island were dismissed, he said.
In June, after implementing the new electronic-signing policy, that number dropped to 40 percent. In September, it was down to 35 percent.
As of Dec. 6, electronic signings had been used in 99 misdemeanor cases, said Tuesday Muller-Mondi, chief of the D.A.'s Domestic Violence Bureau.
"Improving the way domestic violence cases are handled on Staten Island is one of our key initiatives," McMahon said during a recent interview at his St. George offices.
"We're very pleased that the success we hope for, we are realizing. It's still way too high, but we're getting there," McMahon said, referring to the dismissal rate. "We're always trying to do things better and make the application of justice fairer on Staten Island."
But defense lawyers argue the process short-circuits justice instead of ensuring it.
For the sake of convenience, prosecutors are rushing to push cases through the system instead of carefully evaluating complainants' credibility in a face-to-face meeting, they contend.
"It's not best practices. I'd want to see the witness in front of me and I'd want to assess the witness in front of me," said Christopher Pisciotta, senior attorney-in-charge of the Legal Aid Society on Staten Island. "The whole process has been truncated to a voiceless, faceless e-mail exchange."
"I think what's happening is they're trying to put undue pressure on the accused by keeping them in jail," Pisciotta said. "I think this is a simpler, faster way to make that happen."
Mark J. Fonte, a St. George-based criminal defense lawyer and former prosecutor, agrees.
"The prosecutor is more concerned with inconveniencing alleged victims because a lot of these cases are questionable," said Fonte. "A prosecutor should sit down with the victim and gauge whether that victim has credibility or not. The defendant has a Constitutional right to have that occur. ... This method shortcuts those protections."
Louis Gelormino, another criminal defense lawyer was even more blunt.
"Any case where the district attorney does not get an in-person signature on a deposition of an alleged victim should immediately be dismissed," said Gelormino. "For the district attorney to make an assessment of someone's credibility without meeting them is just absurd. "
There's another issue: Defense lawyers question the reliability of electronic signatures.
Complainants are instructed to reply, "I agree" and type their name to a supporting deposition to signify the information contained in a criminal complaint which prosecutors also e-mail them is accurate.
Prosecutors follow-up with a phone call to confirm the complainant read and understood the deposition and that they are the person who signed it.
False statements are subject to perjury charges.
"We're finding a lot of witnesses are saying, 'I didn't get that call' and some are saying they didn't get an e-mail in the first place," said Pisciotta. "All of these things happen because you don't have a live person in front of you signing a document."
McMahon said he knows of no instances in which the affidavit was signed by a person other than to whom it was e-mailed.
Muller-Mondi said Queens began using electronic signing in 2015 for all misdemeanor domestic-violence cases. Prosecutors in Brooklyn and Manhattan have also used it in some cases, she said.
Electronic signing can't be used in felony cases because complainants and witnesses can be subpoenaed to testify before a grand jury.
The process used to work this way:
Police would interview an alleged domestic-violence victim at the scene and compile a report.
Afterward, prosecutors interviewed the officer and drafted a criminal complaint based on their conversation and the cop's report.
The defendant would then be arraigned in Criminal Court.
Following, prosecutors had five days on misdemeanor domestic violence cases to obtain a signed affidavit from the accuser corroborating the criminal complaint.
Otherwise bail, if set, would be reduced to zero dollars, and the defendant would be released if he wasn't also being held on another case.
Depending on the class of misdemeanor, prosecutors had 60 or 90 days to secure the signed deposition to prevent the case from being statutorily dismissed.
In the current system, prosecutors telephone the complainant and discuss the case with them after interviewing the police officer.
Prosecutors inform the alleged victim they are going to e-mail them the complaint and supporting deposition. They are asked to read those documents.
If complainants agree with the information, they reply "I agree" in the email and return it.
After receiving the return e-mail, the assistant district attorney handling the case makes the confirmatory phone call.
The prosecutor also signs an affidavit verifying the information on the complaint and affirming it was explained to the alleged victim.
Afterward, complainants are invited to the D.A.'s office to discuss the case further.
Muller-Mondi said the new method allows prosecutors to communicate more quickly with complainants and helps victims "get earlier into the buy-in."
Now, by the time of the defendant's arraignment, prosecutors have contacted the alleged victim, which hadn't always been the case before.
"This is something that troubled me from the get-go – that we needed to have earlier communication and interaction with the victim," said McMahon.
Swiftly establishing the facts and circumstances surrounding a domestic-violence incident helps both prosecutors and the defense assess and dispose of the case, Muller-Mondi said.
"We get many more pleas than we did otherwise," said Muller-Mondi.
But, she added, "We're not looking at convictions as much as addressing the family's needs. The goal is for the defendant to be held accountable and for the victim to be safe."
Accountability could entail jail time, probation, or entry into a program such as for substance abuse or anger management, she said.
Victim advocates at the D.A.'s office work with victims to secure any social services they might need, said Muller-Mondi.
Defense lawyers aren't sold.
At its core, they question the legality of the electronic signings.
"What we have is the district attorney's office creating their own law," said Pisciotta, the Legal Aid chief. "This isn't authorized by law. What you have happening is different district attorney's offices doing it differently. ... I think it's wrong."
In response, McMahon points to several decisions in which judges, mainly in Queens, have upheld the electronic signatures.
"It is legal and appropriate and Constitutional to do it this way," said McMahon.
Criminal defense attorney Manuel Ortega said he's not aware of any law that specifically allows or prevents the electronic signings.
"It will ultimately come down to the courts," said Ortega. "Ultimately, it will have to go to the Appellate Division or Court of Appeals."
In such a scenario, a convicted defendant would appeal the validity of the e-mail process, he said.
Pisciotta said state lawmakers must step in.
The Legislature needs to "establish protocol to apply uniformly across all counties" for electronic signings to be deemed an acceptable practice, he said.