I.    Introduction/History

    On December 7, 1994, the Supreme Court of Appeals decided unanimously to establish fatality review teams and to adopt a fatality review protocol (this protocol was amended on December 4, 1998). The protocol provides that “[t]he death of any person recently involved in related court proceedings is a threat to the integrity of the courts. When such a death occurs, it is imperative that the circumstances preceding it be reviewed in order to maintain public confidence in the court system.” Under the protocol, the teams review cases involving the deaths of adults who have had significant recent involvement with the courts. The review is limited to adult deaths because cases involving the deaths of children are reviewed by the child fatality review team under the Office of Medical Examinations [§ 49-5D-5 of the Code of West Virginia].

    Once the Administrative Director directs that a case be reviewed, the counsel for the Judicial Investigation Commission conducts an investigation and prepares a confidential report which is presented to the assigned fatality review team. There are three fatality review teams composed of eight members each and covering three geographically separate regions of the state (see attached map of Fatality Review Team Regions).

    In order to ensure an objective review of the case, fatality review teams do not hear cases from their own regions and no names or other personal identifiers are included in the confidential report. Therefore, this synopsis does not identify the cases or individuals involved.

    The role of the fatality review team is “to identify any patterns or trends that may be present, to examine court procedures to determine whether proper steps were taken, to review applicable statutes and rules to see whether amendments are needed, and to assess whether other involved agencies followed required processes and whether there was a coordinated effort among agencies to address the issues in the case.”

II.    1998 Fatality Review Team Membership

     Region 1:

        The Honorable John T. Madden, Judge, Second Circuit (Chair)
        William D. Anderson, Magistrate, Marshall County
        Annette Fantasia, Family Law Master, Wood County
        Teresa Beer, Circuit Clerk, Upshur County
        Shelly L. DeMarino, Prosecuting Attorney, Gilmer County
        Karen Lukens, citizen member, Kanawha County
        Carolyn Flannery, Attorney at Law, Wetzel County
        Patti Kota, Director, YWCA Family Violence, Ohio County

       Region 2:  

        The Honorable Thomas A. Bedell, Judge, Fifteenth Circuit (Chair)
        Gail Boober, Magistrate, Jefferson County
        April Dowler, Family Law Master, Berkeley County
        Barbara Core, Circuit Clerk, Marion County
        Penny Hartman, Assistant Prosecuting Attorney, Monongalia and Preston Counties
        Rodney A. Taylor, citizen member, Randolph County
        Catherine Munster, Attorney at Law, Harrison County
        Sharon Semans, RDVIC, Monongalia County

       Region 3:  

        The Honorable Dan O'Hanlon, Judge, Sixth Circuit (Chair)
        Sharon Stone, Magistrate, Boone County
        Ronald Anderson, Family Law Master, Cabell County
        Ronald F. Miller, Circuit Clerk, Greenbrier County
        Paul Blake, Prosecuting Attorney, Fayette County
        Joan Browning, citizen member, Greenbrier County
        Jane Moran, Attorney at Law, Mingo County
        Gloria Martin, Family Refuge Center, Greenbrier County

III.    1998 Cases Reviewed

    In 1998 fatality review teams completed eight reviews. A total of twelve deaths were subject to review in 1998. The number of reviews and the number of deaths subject to review in 1998 are almost double the number of reviews and the number of deaths reviewed in 1997: Four reviews were conducted in 1997 and a total of five deaths were subject to review in 1997.

    The perpetrators used guns to kill the victims in six of the eight cases reviewed. In three cases pistols were used. In two cases shotguns were used, and in one case a rifle was used.
    
    In the remaining cases the deaths were the result of one perpetrator killing the victim by hitting him with a car and another perpetrator killing the victim by beating him to death.
    
     The perpetrators in four of the eight cases either committed suicide or attempted to commit suicide.    
    
     The perpetrators were males in seven of the eight cases.
    
    The perpetrators and the victims lived together in six of the eight cases.
    
    Five of the twelve deaths were women. Of the seven men who died, three committed suicide and three were killed by another man. The cause of death of one of the seven men who died had not been determined at the time of the review (there were allegations that a woman killed him and there were allegations that he killed himself).

    Domestic violence protective orders were in effect in three cases. In two of these three cases the perpetrator violated the protective order at least once prior to the victim being killed.    

    In four of the eight cases the perpetrator had past charges of drug/alcohol abuse (e.g., DUI; public intoxication; possession of illegal substance) or evidence of drug abuse in his past (statements from a former girlfriend).

    Stalking of the victim(s) by the perpetrator was suspected in four of the eight cases.

    In one of the eight cases reviewed, children were present at the scene of the killing.

    Perpetrators in five of the eight cases had previous charges of various violent behavior (e.g., domestic battery, sexual assault in the first degree; malicious wounding) or reports of violent behavior (e.g., sexual abuse allegations; shooting at former girlfriend).

Below is a brief description of each of the eight cases reviewed:

Case # 1:    A boyfriend, who was cohabitating with his girlfriend, shot and killed her and then committed suicide by shooting himself. A domestic violence final protective order protecting a third party (another girlfriend; not the girlfriend who was killed) was in effect against the boyfriend at the time the killing took place. Children were present when the shootings occurred and they notified neighbors of the incident.

Case # 2:    A boyfriend shot and killed his ex-girlfriend and then shot himself, committing suicide, while a domestic violence temporary protective order (protecting the ex- girlfriend) was in effect. The ex-girlfriend moved to another county after the domestic violence temporary protective order was issued and attempted to trick the boyfriend by putting the wrong forwarding address on court papers: The boyfriend found her new living location anyway.

Case # 3:    A boyfriend, who was cohabitating with his girlfriend, shot and killed her and then shot himself, committing suicide. At the time of the deaths, the girlfriend had been before the circuit court on allegations that her daughter had been sexually abused by the boyfriend (the boyfriend was not the father of this child). The Department of Health and Human Resources was involved in working with the girlfriend and her daughter. A few days prior to her death, the girlfriend told the Court that she was not presently seeing the boyfriend and understood that if she would see the boyfriend again she would lose any opportunity of regaining custody of her daughter.
    
Case # 4:    A boyfriend, who was out of jail on bond awaiting trial on charges of sexual offense in the first degree (arising from a brutal attack against his girlfriend which resulted in her spending time in the intensive care unit of a hospital), malicious assault (arising from the same brutal attack mentioned above) and two violations of a domestic violence final protective order (issued against him to protect his girlfriend-- these violations occurred after the brutal attack mentioned above), drove a vehicle into a male friend of his girlfriend, killing him in his girlfriend's presence. It is noteworthy that the circuit judge made as a condition of bond for the second violation of the domestic violence protective order that the boyfriend have no contact with the girlfriend and that he leave the state and pursue his employment in Ohio. Also, it is noteworthy that at the time these conditions of bond were imposed the prosecutor moved for bond to be revoked--the circuit judge denied the prosecutor's motion. At the time of the review, the girlfriend continued to visit the boyfriend who was in jail (he was charged with first degree murder for killing the girlfriend's friend) and stated that the killing was accidental.

Case # 5:    A circuit judge gave a defendant who had been convicted of two counts of robbery ten days to take care of personal matters before he reported to prison to serve his sentence. Neither law enforcement nor the prosecutor objected to this as the defendant did not have a history of committing violent crimes. However, sometime during the ten days, the defendant, who was the paramour of a married woman, beat her husband to death. Both the defendant and the married woman were charged with first degree murder.

         
Case # 6:    A husband shot and killed his wife in the parking lot of a day care center after the wife had taken the couple's children inside, then attempted to take his own life. The incident occurred while a domestic violence protective order was in effect (protecting the wife). After the protective order was issued, the wife and two children moved to a battered-women shelter. Prior to the shooting, the husband had violated the protective order by threatening his wife and following her around, which led to him being charged with domestic battery and with violating a domestic violence protective order. The husband was released on bail on both charges. Soon thereafter, the husband took a neighbor's car to the day care center so that the wife would not recognize him and waited until she came outside after taking their children into the day care center before shooting her.

Case # 7:    After assaulting and attempting to kill his wife and son, a husband shot and killed his sister-in-law and brother-in-law. The husband had a DUI conviction five years prior to the killings, and a domestic battery conviction three years prior to the killings. The husband had no court involvement at the time of the murders.

Case # 8:    A boyfriend cohabitating with his girlfriend assaulted her and her son and left the residence. Law enforcement officers were called to the scene and advised the girlfriend of the domestic violence petition procedures and services provided by a local domestic violence shelter. The girlfriend refused any services, stating that she felt safe in her residence and that she would kill her boyfriend if he returned. Subsequently, the boyfriend returned to the girlfriend's residence where he died as a result of a gunshot wound. At the time of the review, it had not yet been determined whether the death was a homicide or suicide. The boyfriend had eight convictions for public intoxication and two for controlled substances between 1990 and 1997. The public intoxication convictions where all dismissed due to alcoholism. In addition, a domestic violence petition and two battery charges had been filed against the boyfriend, all of which were either withdrawn or dismissed.

IV.    1998 Recommendations

    The recommendations made by the three fatality review teams have been grouped below according to one of the following topics: domestic violence issues, training issues, legislative and/or rule change issues, or miscellaneous issues. Additionally, following the recommendations are comments by the Administrative Office of the West Virginia Supreme Court of Appeals written in bold and addressing concerns and/or actions taken by that office as a result of the recommendation.

.    When children are present in the home (whether the victims of the domestic violence themselves or whether they merely observe acts of domestic violence), judges, family law masters and magistrates should make a referral to child protective services as required by W. Va. Code § 49-6A-2.

     Action by Administrative Office: Magistrates were informed again at the September 1998 Magistrate Training Conference that they have a statutory duty to refer such cases to child protective services [§ 49-6A-2].

.    At meetings of county multi-disciplinary investigative teams, the prosecuting attorney should review domestic violence cases that his or her office has handled in which children were involved either as victims or as observers of the violence.

.    Prosecuting attorneys in every county should develop a policy to prosecute domestic violence crimes whether or not the victim of the violence wishes to proceed. Prosecutors should not have a policy of automatically dropping criminal charges simply because victims of domestic violence crimes want to drop charges against abusers.

.    Electronic devices similar to those used for home incarceration should be used to protect a victim of domestic violence. For example, if a defendant is charged with crimes involving domestic violence, then the defendant should be ordered to wear an electronic device as a condition of his/her bail. Whenever the defendant walks within 500 feet of the victim's home this device would trigger a unit placed in the victim's home to sound an alarm and call into a 24-hour center which would then record the conversation with the victim and call 911. Additionally, the victim should be given a hand held device to use when he/she is outside of the home. This hand held device can be pressed if he/she sees the defendant. Once the hand held device is activated, it connects the victim to the 24-hour center and enables law enforcement to come to the victim's aid. The team strongly feels that the use of these devices will help victims not only feel safer, but be safer. Therefore, the team recommends that the Court further research and investigate how these electronic devices may be used in domestic violence cases.

     Action by a Circuit Court: Chief Circuit Judge Dan O'Hanlon in the Sixth Judicial Circuit implemented a pilot program using the electronic devices described above in his circuit on November 6, 1998, based on the above recommendation from a fatality review team. The Sixth Judicial Circuit uses the JurisMonitor system when defendants have been convicted of domestic violence related crimes. This system alerts the home incarceration officer when the defendant leaves his/her home. Additionally, this system will set off an alarm that is placed in the victim's home if the defendant comes within so many feet of the victim's home. When the alarm goes off in the victim's home, the device in addition to alerting law enforcement authorities begins recording any sounds it picks up in the victim's home in the JurisMonitor's office. The JurisMonitor company will send a copy of the recording to the prosecutor's office the very next day so that the prosecutor's office will have some idea of what may have transpired at the victim's residence.
    
    In addition to the JurisMonitor system, Judge O'Hanlon also arranged for a cellular phone company and a paging company to donate cellular phones and pagers which could be assigned to victims. The victims may place free calls to 911, the court, the home incarceration officer, and the prosecutor's office on the cellular phones. The law- enforcement officer, home incarceration officer or prosecutor's office can page or call victims in order to immediately notify them if the defendants have violated home incarceration.

    To date this pilot program has been very successful. The JurisMonitor system has been used as a condition of bond or as a sentence in twelve criminal cases involving domestic violence from December 1998 through October 1999. As of October 1999, no incidence of violation (e.g., contacting the victim in contravention of a court order) has occurred for any defendant participating in the program . Additionally, the victims have overwhelming stated that they feel much safer with this program in place. Thus, a presentation on the Sixth Circuit's pilot program is being planned for the circuit judge's spring judicial conference.

    If you are interested in the program, please call Jules Dowler, assistant prosecuting attorney in Cabell County at (304) 526-8653. She has been very involved with helping Judge O'Hanlon set up this program.

     Note from Administrative Office: It may be helpful to have legislation which authorizes the use of a system such as the JurisMonitor system--especially if this system is to be used in civil domestic violence cases.

.     The remote video court appearance pilot project should be expanded to allow victims of  domestic violence to file domestic violence petitions and to make court appearances from domestic violence shelters in order to obtain temporary protective orders from the court.     The video equipment is already set up in two magistrate courts. Video equipment would     need to be purchased (possibly through Bell Atlantic's funding program) and installed in the domestic violence shelters. Additionally, domestic violence shelters will need fax  machines so that the petition for a temporary protective order can be filed with the court by fax. The team expressed concern that lives of victims were endangered when they had to leave a domestic violence shelter in the middle of the night and go to the magistrate court, where there was no bailiff on duty, to get a temporary protective order. The team strongly feels that the use of video court appearance from domestic violence shelters would make victims, domestic violence shelter workers, and magistrates safer. The team recommends that the Court makes it a priority to investigate the possibility of expanding the remote video court appearance pilot project to domestic violence cases so that the Court can take advantage of Bell Atlantic's funding program.

    Action by Administrative Office: Currently, the Administrative Office is in the process of setting up a pilot program in Greenbrier County to test whether having a remote video site in a domestic violence shelter will be beneficial.

    Additionally, the Administrative Office notes that Trial Court Rule 12.05 authorizes a petitioner to file a verified petition for a protective order by fax [prior to the adoption of the new trial court rules, Rule 6 of the Rules for Facsimile Transmission also authorized a petitioner to file a verified petition for a protective order by fax]. Therefore, if the domestic violence shelter has a fax machine, a petitioner can file the petition by faxing it to magistrate court. Indeed, the petitioner can file a domestic violence petition by faxing it from any fax machine. The magistrate will call the petitioner if he/she needs more information before issuing a temporary protective order. A petitioner need not go to the magistrate court if he/she is concerned that it could be dangerous to do so. However, Peggy Rash, Associate Administrative Counsel, noted that an informal survey indicates that magistrates have not received many domestic violence petitions by fax.


.     Magistrates should be required to make available to domestic violence victims information concerning services available for the victim.
    
.     Courts having contact with a domestic violence perpetrator who fits the profile of a  domestic violence perpetrator who is dangerous should be required to refer the perpetrator to a mental hygiene proceeding.


    Note from Administrative Office: Reference is made to a "profile" of a domestic violence perpetrator. Some states have conducted studies to isolate indicators to identify dangerous perpetrators of domestic violence and their results have been inconclusive. In other words, there is no known model to use as a base from which to train or instruct. Moreover, currently there is no statewide source of data to check even if a "profile model" existed or one was to be tested.

.    Law enforcement officers should receive training on domestic violence matters, including procedures for arresting perpetrators of domestic violence when the police officer did not observe the criminal activity [such arrest is authorized by W.Va. Code § 48-2A-14].

.    Law enforcement officers should be reminded of their statutory duty to refer victims of domestic violence to shelters and to facilitate their transportation to those shelters [§ 48-2A- 9(b) of the Code of West Virginia sets forth the law enforcement officers's duties].

     Magistrates, family law masters and circuit judges should be trained on how to identify a  domestic violence perpetrator who will be dangerous.


     Note from Administrative Office: Reference is made to a "profile" of a domestic violence perpetrator. Some states have conducted studies to isolate indicators to identify dangerous perpetrators of domestic violence and their results have been inconclusive. In other words, there is no known model to use as a base from which to train or instruct. Moreover, currently there is no statewide source of data to check even if a "profile model" existed or one was to be tested.


.    Law enforcement officers should be trained to investigate a domestic violence case in a manner that enables them to collect enough evidence so that the prosecutor can proceed  with a criminal domestic violence case even when the victim is unwilling to testify.

.    Prosecutors should be trained to make a motion in circuit court to revoke bail when a domestic violence perpetrator has violated a condition of bail which was intended to protect a victim and/or the community from danger.

.    Circuit judges should be trained to revoke bail when a domestic violence perpetrator  violates a condition of bail which was put in to protect a victim and/or the community  from danger.

.    Law enforcement should be trained to respond to all domestic violence calls, especially  when a protective order is in effect.

.    Court personnel should be trained to ensure that domestic violence protective orders are sent to the proper law enforcement officers as required by the domestic violence act.


    Action by Administrative Office: The Administrative Office informed the magistrates at the September 1998 Conference and the magistrate clerks at the June 1999 Training Conference of their duty to make sure such orders are sent to the proper law enforcement officers as quickly as possible.

.    Prosecutors should make sure that the law enforcement officers in all counties are informed about and updated on the domestic violence laws. The STOP grant funds may be available for such training.

    Note from Administrative Office: The Commission on the Future of the Courts did recommend the creation of a Family Court. The Constitutional Amendment failed in 1998, but will be put on the ballot again in 2000.
    
.    Although there is an enhanced penalty for third-offense domestic violence battery or  assault, currently there is no enhanced penalty for second-offense domestic violence battery or assault [W.Va. Code § 61-2-28]. Adding such penalty would help courts to be more effective in dealing with domestic violence situations.

.    The Legislature should amend the domestic violence act [W.Va. Code § 48-2A-1 et seq.]     and the criminal domestic battery statute [W.Va. Code § 61-2-28] to require courts to order a domestic violence perpetrator to receive counseling. If the domestic violence perpetrator refuses to participate in the ordered counseling, then the court should be authorized to sentence him/her to jail. According to one team member, Minnesota currently has a law to this effect and has seen a 40% drop in recidivism since the law has been in existence.

    Note from Administrative Office: Since magistrate authority is limited to unsupervised probation, probation officers are not assigned to magistrate courts and there would be no supervision of these offenders ordered by a magistrate to attend counseling. The court should not be placed in the position of policing its own orders. A more workable solution would be to amend the relevant statutes to include a mandatory jail sentence which may be suspended. If suspended, then the alternative sentence of counseling alone or counseling in conjunction with available alternative sentencing options would have to be ordered. In either case, the supervision of the alternative sentence would need to be stated. If the alternative sentence is revoked for failing to attend counseling or failing to perform any condition of the alternative sentence, the person would be committed to jail.

.    The Legislature should amend the domestic violence act [W.Va. Code § 48-2A-1 et seq.]     to mandate that both the victim and domestic violence perpetrator be ordered to receive counseling in a final protective order.

.    The Legislature should amend the domestic violence act [W.Va. Code § 48-2A-1 et seq.] and the criminal domestic battery statute [W.Va. Code § 61-2-28] to require courts to revoke bail in a criminal case brought pursuant to § 48-2A-10d or § 61-2-28 when a perpetrator violates a civil protective order after bail has been set in the criminal case and keep the perpetrator in jail until the scheduled hearing takes place.

    Note from Administrative Office: It may be more appropriate to address bail matters in Chapter 62, Article 1C of the Code rather than under individual offenses. The team may not have been aware of the provisions in W.Va. Code § 62-1C-17c relating to bail in cases where offenses are committed against family or household members. This would seem to be the more likely statute to amend to accomplish the end the team seeks.

.    On second-offense domestic violence charges, bonds should be set higher and should be set by the circuit court. In the circuit court setting all interested parties could participate and the circuit judge would have more information available upon which to make an informed decision concerning the amount of the bond.

.    The Legislature should amend the domestic violence act [W.Va. Code § 48-2A-1 et seq.] to make sentences for violating a protective order mandatory (so that the perpetrator is not eligible for an alternative sentence). The team noted that domestic violence is no less serious than DUI and, thus, should have the same mandatory sentencing structure.

    Note from Administrative Office: The domestic violence act [W.Va. Code § 48-2A-1 et seq.] currently requires actual jail time. The fatality review team making the above recommendation may not have been aware of this.

.    The domestic violence act [§ 48-2A-1 et seq.] should be amended to give a judicial  officer the discretion of ordering a respondent named in a domestic violence protective order to  participate in a substance-abuse treatment program if the respondent has a history of  being arrested for public intoxication or has any other history of substance abuse.

.    Enact legislation providing that bonds be established by circuit courts for second and subsequent offenses of domestic violence [treat these case like capitol offenses].
    

     Action from Administrative Office: The Supreme Court is developing an automated domestic violence protective order case management program which cross-references criminal case data. Once the State Police receive the data for a protective order registry by electronic transfer, the information will be available statewide to those authorized access to the registry by the State Police. The case management domestic violence program should be operational in all magistrate courts in the year 2000. However, this program will not include circuit court records (or family law master records).

.     Protocol for fatality reviews needs to be amended to more fully explain how long fatality review team members are to serve on a team as well as how members may resign and be replaced.

    Action from Administrative Office: The West Virginia Supreme Court of Appeals amended the protocol to address this concern [the protocol is available upon request].

.    The Administrative Office should modify the new domestic violence petition so that the petitioner does not have to indicate that he/she wants the court to order that the respondent not possess firearms. This needs to be taken off of the victim's shoulders.  

     Note from Administrative Office: The domestic violence petition form follows the statute. W.Va. Code § 48-2A-6(b)(10) states that it is in the judicial officer's discretion as to whether the respondent will be ordered to not possess a firearm. Perhaps the fatality review team is really recommending that this statute be amended to make clearer that if a protective order is issued, the respondent is not allowed to possess a firearm under federal law and eliminates any reference to firearms in the discretionary relief that may be ordered.

.     Prosecutors should take advantage of a grant which is available from the Division of  Criminal Justice Services to form a “STOP Team,” which includes among its team membership the local prosecutor, a victim's services agency or organization, law enforcement and the victim. The STOP Team works together to provide support and services to the victims of domestic violence which will help victims make changes so that they can remove themselves from the cycle of domestic violence.
    
.    Licensed day care centers should be required to routinely have a conference with employees in order to discuss its children's family situations. Such precautions would make the staff aware of any potentially dangerous situation.