Letter to the editor: Victims, witnesses not showing up for court a serious issue in prosecuting suspects

This is a letter submitted to Fall River Reporter and was not written by us.

Failure to Prosecute. Lack of Prosecution. No Face, No Case. If you spend any time at all in the criminal district court, you know these all mean essentially the same thing – a criminal case was dismissed and the defendant set free because victims or witnesses on the case didn’t show up for trial. Some estimates indicate this happens to more than 66% of the cases that reach the trial session. When it happens, the court clerk enters three words into the official docket – Failure to Prosecute. On the street, the explanation is the same, but slightly more direct – No Face, No Case.

Over the past few weeks, as we’ve learned more about Corree Gonzales, the man charged with the stabbing of Will Flanagan, many have wondered how a person with a violent criminal record and lengthy history of mental health challenges was free to run the streets of Fall River and allegedly stab someone in broad daylight.

Some have blamed the dangerous fact of Mr. Gonzales’ freedom on the privatization of our mental health system. It’s a fair point but for the fact that a defendant is only subject to actual mental health treatment once that person has been deemed not competent to stand trial, and the competency standard is surprisingly low. Mr. Gonzales was evaluated several times and always found competent, even though he very clearly could have benefitted from treatment. Procedurally the courts focus was to know if Mr. Gonzales could be prosecuted and punished, not to determine if he needed treatment.

Others point to supposedly lenient judges. I understand that critique as well, but I’m not sure there is any instance in Mr. Gionzales’ record where a judge went against a prosecutor’s recommendation to impose an inappropriately light sentence. My observation, instead, is that Mr. Gonzales, time and time again, wasn’t held accountable for violent acts because of “Failure to Prosecute.”

Prior to the two charges connected to the stabbing of Will Flanagan, Mr. Gonzales accumulated nineteen (19) criminal charges beginning in 2013. Twelve (12) of those charges include some kind of physical violence against another person. Of those twelve (12) violent charges, eight (8) were dismissed for “Lack of Prosecution,” or “Failure to Prosecute.”

In our criminal justice system, someone accused of a crime has the right to confront his accuser, which means that the prosecutor needs the live testimony of a victim or eyewitness at trial to prove the case. It’s not good enough to have a victim’s written statement, a police report, or the testimony of an officer who arrived on the scene after the fact and made note of what he was told. In most cases, a witness – usually the victim in an assault case – needs to take the witness stand on the day of trial, with the Defendant sitting in the courtroom, and tell everyone in the courtroom what happened. Without that testimony – without that witness present – the prosecution generally cannot secure a conviction.

Here’s the problem – and the reason why the majority of cases get dismissed on the trial date – many victims don’t want to testify. Some are afraid of the defendant and afraid to come to court. Those witnesses have no faith that law enforcement or the district attorney’s office can protect them so they refuse come and the case gets dismissed. Other victims and witnesses, especially in instances of family or relationship violence find that over time, their hurt and anger softens into something like forgiveness, or at least, acceptance, and they don’t want the defendant held accountable. Those victims don’t show up. Those cases get dismissed. Most of the time, cases are dismissed for “Lack of Prosecution,” because a LOT of time passes between the arraignment date and the trial date. By the time a trial date is scheduled, months or even years after the crime itself, the victim who was angry and hurt and intent on holding the defendant accountable back on the arraignment date, has lost interest or moved on. Getting that person back to court months and years later is incredibly difficult and when that person can’t be found or just doesn’t show up, the case gets dismissed. Failure to Prosecute. No Face, No Case.

Similar to the percentage of cases dismissed across the District Court for “Lack of Prosecution,” two thirds of Mr. Gonzales violent charges were ultimately dismissed, seemingly because witnesses didn’t show up. Many of the dismissals were not only avoidable, the fact that so many cases were dismissed at all, likely reduced the seriousness of the consequences in those few instances when Mr. Gonzales was convicted.

As a general rule, each time someone is charged with a crime, the stakes – the potential penalty – should be more than what that person was facing in his previous case. If a defendant pled to probation last time, the prosecutor is likely to seek jail time on his next charge. If that next charge results in a sentence of thirty (30) or sixty (60) days in jail, the prosecutor will seek an even longer jail sentence the time after that. Each conviction generally builds on the last conviction. When each conviction is separated by several dismissals for “lack of prosecution,” that build happens much more slowly and a defendant with numerous and frequent charges might go years before the court sees that a really serious sentence is justified. Additionally, when a defendant is held on bail or held as a danger pending the outcome of a case, the prosecutor knows that when the case finally gets to trial, witnesses are unlikely to show, the case is likely to be dismissed and defendant will be released. In those instances, the prosecutor might settle for whatever conviction he can get, which is usually less than the sentence he was originally asking for – time served.

Bottom line, when so many cases are dismissed for “lack of prosecution,” not only is there no accountability for cases that were dismissed, there is less accountability and less serious consequences for the cases where a conviction is possible. Arguably, this is how Mr. Gonzales, accused of many violent acts over the years, was able to be running through the streets of Fall River on the day he is alleged to have attacked the former mayor.

So, how do we fix it?

The District Attorney needs to choose to put resources into the District Court. The four (4) district courts in Bristol County collectively hear 16,000-18,000 criminal cases annually. Those cases are handled by approximately twenty-five (25) prosecutors who are usually the most junior lawyers in the Bristol County District Attorney’s Office. Those prosecutors are assisted by a similar number of victim/witness advocates who are responsible for connecting with victims and witnesses of crime to make sure they stay engaged in a case through months and years of prosecution. The District Court prosecutors and advocates put incredible time and energy toward trying to build cases and getting witnesses to court, but the handful of people doing that work are not enough. There are not nearly enough personnel and not enough resources. A team of fewer than fifty people – prosecutors and advocates – are just not able to make and maintain meaningful, constant connections with the thousands of victims and witnesses enough to make a dent in the number of cases being dismissed for “lack of prosecution.”

The District Attorney understands all of this, but in ten years of his administration has done very little to address the problem. The most senior prosecutors and a small handful of the most serious cases are heard in the Superior Court. Superior Court cases get the vast majority of media coverage and as result capture the public’s attention and imagination. So that’s where this District Attorney gives his attention. Admittedly, most District Attorneys do, choosing to largely ignore the M.A.S.H. unit that is the District Court. To allow the District Court to fail as it has however, to eschew an ounce of prevention for a pound of cure. Functional prosecutions in the District Court where fewer cases are dismissed for “lack of prosecution,” and more defendants are being held accountable, would likely mean few defendants “graduating” to more serious crimes in the Superior Court. If he wanted to, the District Attorney could prioritize the District Court with more prosecutors, more advocates, better resources and better training. With enough support and enough capacity, the District Court staff would be in a position to build trust, understanding, and urgency with victims so that many more choose to show up to court when it matters most.

Unfortunately, it takes a violent crime, in broad daylight, on a busy street, to someone we know, for the average person to wonder how and why a man regularly charged with committing violent crimes has rarely been held accountable. The answer is “failure to prosecute,” or perhaps more accurately, “failure of leadership.” A small group of willing assistant district attorneys and advocates, who wanted to prosecute and who tried to prosecute, weren’t given the necessary resources to do that and victims didn’t show up to court. Cases were dismissed. Our neighborhood became less safe and someone we care about got seriously hurt.

Seth Aitken