Getting Prosecutors to do their jobs re: Elder Abuse

http://nij.ncjrs.gov/multimedia/transcripts/trans-audio-nijconf2010-elder-prosecuting.htm

Here is some of the sample discussion:

 

Shelly Jackson: OK. Good morning. I am going to be talking about some barriers and facilitators in prosecuting elder abuse in a pilot study that we’ve done. I want to acknowledge my colleague, Tom Hafemeister, who’s the co PI on this project. He’s also my husband, and he and my kids were upstairs still sleeping when I left.

[Laughter.]

Jackson: And then, of course, we’d like to thank NIJ for funding the project.

Now, before I get into the prosecution part of this, I wanted to tell you about how we became interested in prosecution. We were funded a few years ago to study financial exploitation of the elderly, and what we did was we looked at financial exploitation by comparing it to other types of abuse, like physical abuse, neglect and what we call “hybrid” cases. And that’s where there’s financial exploitation and something else going on. And you can see by the title here that we were interested in the dynamics, the risk factors, and when we conceptualized this study, we were thinking about Adult Protective Services as society’s response. Well, we were gathering our data, we were running our analyses, and we found out that 18 percent of the cases in our study were prosecuted and received a conviction for elder abuse. They might have been prosecuted on something else, but for elder abuse, it was 18 percent of the cases. But the physical abuse cases were more likely than expected to be prosecuted compared to those other four types of abuse that was going on.

We also learned at that time that our caseworkers were finding it very difficult to get prosecutors to help them out in those cases. So almost three-fourths of our caseworkers said, “You know, if I go to law enforcement, they’re less likely to help me in a financial exploitation case than a physical abuse or a neglect kind of case.” But then just in general, they were extremely frustrated with how prosecutors were responding to their cases. And so we engaged them in a conversation about why that might be, and you would hear things like, “Well, the elder actually told her son that she could — her son that he could write checks out of her checkbook,” or you’ve got power of attorney issues.

Elders make poor witnesses. If it is not $100,000 or more, prosecutors aren’t going to take the case. And these are things that you would hear in the literature as well when you do a review of the literature; they’re really reflected there as well. And that got us to thinking about what’s going on here, and it seemed to us that the caseworkers have this perception and belief; they really believe that prosecutors aren’t going to take their cases. So that leads them to think, “Well, why bother? I’m not going to send it over to the prosecutor anyway,” and this was particularly true in financial exploitation because what was happening with those kinds of cases is if there’s physical abuse and financial exploitation, they might pursue physical abuse thinking, “Oh, prosecutors might take that, but I’m going to drop the financial part because nobody’s going to do anything about that anyway.”

And then this is really anecdotal, but then we would go to conferences, and I would hear prosecutors say, “You know, elder abuse isn’t a problem in my jurisdiction. Nobody ever sends me those kinds of cases,” and then we’re thinking wait a minute, what’s going on here, there is some kind of miscommunication between these players. And that led us to go back and think we were initially thinking about society’s response in terms of Adult Protective Services, but we said, “Wow! What prosecutors are doing is directly influencing what our caseworkers are doing, what they’re willing to pursue,” and so we went back to NIJ and asked whether we could expand our study a little bit to try and start figuring out what prosecutors are thinking when elder abuse cases come their way.

And so we’ve done a pilot study looking at some barriers and facilitators, and that’s what I’ll present the rest of the presentation on.

OK. So this is a pilot study, and we had interviews with prosecutors in four states, Virginia, California, Illinois and Pennsylvania, and I’ll tell you why those states were chosen. But we had 17 prosecutors, and as I said, this is a pilot study. They had 13 years of experience on average, so, in general, they had some experience in prosecuting. Almost half of them had a hundred or more cases, which I can’t even imagine what that’s like, but maybe you can speak to that.

And almost three-fourths of them were not what you call a dedicated — I’m not sure exactly what the term is, but elder abuse is not the only thing they do. So, in almost three-fourths of the cases, they had 25 percent or less of their caseload was elder abuse.

OK. And then we created an interview instrument based on a review of the literature, some of the things we talked about before, but many, many other things, demographics and experience and then these facilitators and barriers to prosecution.

Now, we had five UVA law graduates. These were, I will confess, students of my husband’s whose jobs were either deferred — this was during the economic downturn. People weren’t walking out into great jobs. Their jobs were either deferred or they didn’t have job, but they were going back to their states, to California, Illinois, Pennsylvania, and that’s why we had those states. I mean, it was a convenient sample for sure.

So, once they would initially get the prosecutor in the office to agree to an interview, then we just used a snowball technique, “Is there somebody else that you know that we can interview about this?” And, on average, the interviews were 40 minutes. We tried to get them shorter, but we couldn’t. There was a lot to talk about.

OK. So these are some of our results, and the first thing we wanted to know is whether it mattered to prosecutors if the case came from Adult Protective Services, whether the referral came from law enforcement or didn’t matter, and in two-thirds of the cases, it didn’t matter, but where there was a preference, it was for law enforcement, and that, of course has to do with evidence. They’re generally seen as better at collecting evidence, and this is kind of the theme that we’re going to hear throughout this, it depends on the evidence, and I think Page is going to speak to that as well.

OK. And then we asked them is elder abuse more difficult, the same, or easier to prosecute than other kinds of crimes? And I think it’s 56 percent said that it is more difficult. And when we were talking to our caseworkers, over half of them thought that these were difficult cases to prosecute.

And then we got into why that might be. So we’re going to look at a number of factors that might influence why these are harder, and one of the things we were interested in is whether the organizational climate of the office, the agency that the prosecutor worked in, whether they take these cases seriously, and 94 percent of them do take them seriously. A third, a quarter of them thought that the prosecutors in their office were even more willing to take an elder abuse case than other kinds of crime, and that they were more likely to receive a conviction in about a third of those cases. And that had to do with things like sympathy for the elder.

And then almost half of them perceived, anyway, that they were rewarded for taking elder abuse cases. And Pennsylvania was significantly more likely to feel that way, and Virginia was significantly less likely to feel rewarded for taking elder abuse cases.

OK. And then we were interested in prosecutor training, and 41 percent of our prosecutors received less training in elder abuse compared to other kinds of trainings that they might receive, so training might be an issue.

And then we have another, a range of issues that we asked them about, and we just put them all on one slide here. So you often hear elders make bad witnesses, and you can see 93 percent of our prosecutors felt like elders make poor witnesses; the elder is unavailable to be a witness. There is weak evidence in these cases. Perpetrators acted within their rights, and that is often what you’ll hear with power of attorney, right? There’s nothing. She signed it. He can do what he wants to with it, “he said/she said” kinds of cases.

So, over half of the prosecutors thought that these were real issues that they have to deal with. Less so, though, were uncooperative third parties, it’s not perceived as a crime, the prosecutor is unqualified, or there’s insufficient resources in the office. And we saw before that the offices that we talked to, anyway, generally take these cases seriously.

And then we asked about a range of victim characteristics as well, whether these would increase the willingness to prosecute a case. So, willing to testify, significant harm was done to the elder. The elder has the ability to testify. They press charges or the elder made the complaint or the elder is not deceased, and what do most of those have to do with, except for the harm, they really have to do with victim cooperation. And I think that’s what prosecutors are seeing when they think about are they willing to press charges, are they willing to testify, that that signals to prosecutors whether the elder is going to be a cooperative witness. Now, less influential is whether the perpetrator is a stranger or a close relative.

And then some personal characteristics of the victim had to do with things like mental health, whether the victim is living — we just saw that — whether they’re articulate, good cognitive status, their physical health. These were a little less endorsed than the previous group of characteristics, but still there is a third to a half that consider these important factors as well.

What we did find, though, is social network, education, age and gender were not endorsed by prosecutors, but you can kind of see that those would be things like sexism, ageism, classism, and so you would probably not expect those to be endorsed, I think, but probably related to some of those other characteristics, I would guess.

OK. We also asked them an open-ended question, whether there were any perpetrator characteristics that might be influential in deciding whether to take these cases, and generally, they said no. And here, again, it depends on the evidence.

One person said family members are less likely to be prosecuted, and another said nonfamily members are more likely to be prosecuted. And, in our study, we definitely found that relatives were less likely to be prosecuted, which is not surprising.

OK. We were also interested in law enforcement because very often the case comes to prosecutors through law enforcement, and all of our prosecutors thought that law enforcement take elder abuse cases seriously.

And, in Virginia, we heard some variations on that, and so that’s why we decided to ask that question. But the prosecutors in our study thought they take elder abuse cases seriously and that they receive good evidence from prosecutors. And almost three-fourths of them, of the prosecutors, said that APS is involved in their cases, and when they are involved, 85 percent said that they receive really helpful assistance from Adult Protective Services, that they like Adult Protective Services being involved in their cases. And part of that has to do with kind of, you know, figuratively speaking, but holding the elder’s hand through the criminal justice process, that they have much greater skill in doing that than some others.

OK. So we also asked them, though, are there any ways that law enforcement and APS might improve what they’re doing, and, of course, they had some suggestions, such as collaboration, and this is one of my big themes. I’ve been in the world of child advocacy centers for over a decade, and I’m very fond of the multidisciplinary approach. And I’m going to come back to that at the end. I think it’s one of the keys.

I thought it was really interesting, though, that they thought that law enforcement and APS should be more proactive, given that because the APS at least perceives they don’t take those cases, they don’t bring them to the prosecutors, document everything. And then also they thought law enforcement needed some training in interviewing individuals with cognitive deficits, and we heard from our caseworkers that law enforcement is very impatient when they interview elders. They like everything in a nice, neat package, and it takes elders a little longer to kind of get the story out, and they get frustrated and leave.

And then the limits of power of attorney authority, and I think this really has to do with Virginia. Virginia just passed a uniform power of attorney. Lori wrote that great, great, great article — or monograph? Anyway, on power of attorney, and so Virginia just passed that. It goes into effect July 1. So that will be less of an issue for us, but it’s going to take a lot of training because we heard from our caseworkers that power of attorney cases, law enforcement doesn’t do anything with those. So it’s going to take some education to get them thinking in that direction.

We were also interested in whether we needed statutory reform or whether those statutes were working fine, and 81 percent thought that their statutes were helpful to them. Virginia, however, was significantly less likely to find their statutes helpful, and I think that has to do with their financial exploitation, lack of statute.

OK. We also wondered if there were some legal constraints that prosecutors were working within, and, of course, there are. There’s the confrontation clause, and with our elders who become incapacitated for various reasons from cognitive deficits to death, confrontation clause becomes a big issue and also a lack of hearsay exception, so if we can’t get the elder up on the stand, are there any ways that we can get information from other people into the courtroom. So those are two pretty huge barriers.

Power of attorney laws, I just mentioned, and narrow neglect statutes, and we’re going to look at neglect in a minute specifically, and those seem to be really tough cases.

OK. And we have identified a few court reforms, and we were interested in whether prosecutors thought these were helpful, expedited trials, enhanced penalties for the perpetrators, of course, priority on the docket and accommodation for elders. And those were generally, over 60 percent, over two-thirds thought that those were really useful reforms. But you can see the expedited trials, priority on the docket, that’s getting the elder in there as fast as we can, so that we can make sure we get them up, get the case in the courtroom.

And then, in terms of investigation and prosecution reforms, we’ve got some things going on there. Multidisciplinary teams were endorsed by, I think it was, 88 percent of the prosecutors. As I said, I’m a big fan of the specially trained prosecutors, equally powerful, specialists in the office, in the prosecutor’s office, to aid investigation, the availability of social service agencies, these forensic centers — have you all heard of elder forensic centers? — which is another kind of multidisciplinary approach, and vertical prosecution.

But what you can see, I think what a lot of those reforms have to do with, is getting elder cooperation, victim cooperation, right? If you’ve got vertical prosecution, you’ve got the same person kind of bonding with the elder and helping them through the system. So I think that’s what is at the base of a lot of these reforms, is trying to get our elders.

What I thought was interesting is no-drop policies and mandatory arrests were not nearly as endorsed, but I will tell you, in our study, with the physical abuse cases that were prosecuted, it’s not that our elders wanted those cases prosecuted. They didn’t, none of them — seventy-five percent of our elders didn’t want prosecutors involved at all — and particularly the physical abuse, but what happened is they’re in this brawl with their perpetrator, and they call law enforcement and they come out, and the elder says, “No, I’m sorry. I don’t really want to do this,” but law enforcement says, “You either press charges or we will, but we’re not dropping it.” And those are the cases that ended up the most likely to be prosecuted. It’s because there was law enforcement involvement. I know we can argue the merits of whether that’s a good thing or bad thing, but that’s the explanation for why these cases were prosecuted.

OK. And then we asked them open-ended questions about prosecutor — about other kinds of reforms, and I think this is reflective of what we’ve just been talking about, that we need some hearsay exceptions in those cases where elders become incapacitated or die. And this one, I’m hoping Page or Lori can speak to a little bit more, but the appointment of a defense attorney and then cross-examine the elder before the defendant’s been identified and before the elder dies, but you still can’t cross-examine that.

Page Ulrey: Well, individual defendant is entitled to a right to confront the witnesses against him. It’s not just a generic right.

Jackson: Yeah. Yeah. So it didn’t seem like that would work, but, OK, good.

And then several people identified public education — that we need to get our elders educated about elder abuse and make them proactive in their own safety.

And then some statutory reforms, power of attorney laws, that was probably Virginia attorneys or prosecutors; widen the category of neglect and financial exploitation and harsher penalties.

OK. Now, if we do look at whether prosecutors think these types of elder abuse are harder or easier or the same to prosecute, 73 percent said neglect are harder to prosecute than other kinds of crimes, 56 percent thought financial exploitation were harder to prosecute than other kinds of crimes, and 43 percent thought physical abuse were harder, but you can see for physical abuse, actually, about half of them also thought that they were easier to prosecute.

So the neglect which we just heard somebody saying that those are really difficult cases to prosecute is reflected here as well. But, as I mentioned in the beginning, we were very interested in financial exploitation, and so what we did is we tried to dig a little deeper into financial exploitation.

Oh, I forgot. This slide just shows that Virginia was more likely than the other states to find financial exploitation very difficult to prosecute, and, again, that’s because they don’t have any kind of statute that allows them to pursue those kinds of cases.

OK. Now, we also heard from our caseworkers that prosecutors are unlikely to take their cases unless it involves a lot of money, but the prosecutors in our study said there’s really no minimum amount required. It depends on the evidence, of course. But 20 percent of the prosecutors felt weaker to pursue a financial exploitation case, and this is what I was thinking earlier. Our caseworkers also thought that financial exploitation cases were harder for them to investigate as well. There’s some different kinds of issues involved with financial exploitation.

And I also mentioned what we call “hybrid cases” or co-occurring financial exploitation and something else. Our caseworkers thought that about 50 percent of the cases that they get involved co-occurring financial exploitation and some other kind of abuse, but it looks like for the prosecutors that happens in less than 25 percent of the cases that at least make it to their office.

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