Family violence cases being kept under wraps
Travis County closes some records to victims of domestic abuse.
When Tara Coronado asked last year to see a copy of the agreement her ex-husband had signed with Travis County prosecutors to
settle criminal charges that he’d hit her, she had no idea what a
dust-up she would cause. The office of Travis County Attorney David Escamilla wouldn’t turn over the document. Now, nearly a year on, Coronado’s request has blown into a pitched open-records legal battle pitting Travis County against Attorney General Ken Paxton, who has ordered the papers released.
The dispute highlights a little-known tactic Travis County prosecutors use to dispose of about 1 in 5 family violence cases. In so-called deferred prosecutions, all charges against the alleged batterer are dropped. In exchange, he or she agrees to abide by a set of rules for up to two years, such as attending counseling and not having contact with the victim.
If the defendant fails to follow the agreement, prosecutors can refile the charges. If the person completes the program without any hitches, he or she can then ask a judge to expunge the case, meaning evidence of the incident in the public record is wiped away.
Escamilla said deferred prosecutions are an essential tool in handling domestic violence charges — particularly relatively weak cases, such as those in which com
pelling evidence is lacking or in which the victim cannot or will not testify against the abuser. Mack Martinez, who runs the office’s domestic violence unit, noted that as many as 80 percent of family violence cases feature reluctant witnesses.
“Domestic violence cases are the hardest cases we make,” he said. Other counties — Harris
and Tarrant — also regularly use a form of deferred prose- cution for domestic violence cases. Bexar County uses it
only “under very limited circumstances,” a spokeswoman said. To qualify, she added, the complainant “must be in full support of the agreement (and) the defendant must stipulate on the record in open court to his or her guilt.”
Martinez said the Travis County attorney’s office used the tactic in about 600 of its 3,200 cases annually. Escamilla said that because the case is considered pend- ing during the counseling period, it is not subject to open-records laws. And once the defendant completes the program successfully, it is considered an investi- gation that did not result in a conviction — meaning it is shielded from public view then, too.
“We’re not in disagreement with Ms. Coronado’s position philosophically,” he said. “But our legal and ethical constraints require us to do otherwise.”
The secrecy troubles open-records lawyers. “Why should a prosecutor’s deal with any defendant be withheld from the public?” said Bill Aleshire, an Austin open-records attorney who is representing Coronado. “How do we know the pros- ecutors are giving the same kind of deal to a rich person as to a poor person?”
Campaigners against domestic violence say they are concerned that offering repeat abusers a deal that might erase the incident from the public record can be dangerous. Previous domestic violence offenses can be used to enhance new charges, so erasing older cases narrows prosecutors’ options.
“We strongly advocate for survivors’ access to infor- mation pertaining to their safety,” said Derrick Crowe, a spokesman for SAFEAustin, which has helped Coronado in her effort to shake loose records of her case. “We also often find deferred prosecution in domestic vio- lence cases to be problem- atic because it can result in decreased accountability on the part of the batterer, and therefore increased risk for
the survivor of abuse.”
Bitterly contested case
Court documents filed as part of the open-records case show that when Coro- nado showed up at the Bee Cave Police Department on May 11, 2013, her “right eye appeared to be swollen and bruised.” She had cuts on her knee, elbow and ankle, and bruises on her back. She said
that she was going through a divorce and her husband had hit her.
Chet “Ed” Cunningham, a former star football player at the University of Texas who also played in the NFL, was charged with a Class A misdemeanor. Coronado was granted a two-month emergency protective order
against him, records show. The criminal case dragged as they fought over custody and divorce arrangements. Coronado wavered about pursing charges. Finally, Travis County prosecutors offered the deferred prosecution deal last April.
Because the case is considered ongoing, Escamilla said he could not comment on it. Cunningham’s attorney, Mindy Montford, was recently named assistant to new District Attorney Margaret Moore, a position she said prohibited her from commenting.
Cunningham denied any abuse and said he agreed to the deal only to put the bit- terly disputed case behind him. He said assurance that the agreement was to remain shielded from public view was also crucial. “We abso- lutely would’ve gone to trial if it hadn’t been private,” he said.
Coronado said she wanted the case to go to trial. When prosecutors told her they’d decided to strike a deal, she said, “I was kicked-in-the- stomach devastated.”
She acknowledged that she agreed to the deferred prosecution deal that pros- ecutors explained to her. But she said she was never told the charges against her ex-husband would be dismissed.
The open-records issue came to a head soon after the deal was struck. Coro- nado said she ran into her ex-husband at their son’s basketball game. That violated her understanding of the terms of the deal, which she said she thought called for him to stay 200 yards away from her.
She took photographs and requested video from the school. When she sent them to the Travis County attorney’s office, though, she said she was told the terms actually said Cunningham only had to stay away from her home or place of business.
Angry at what she saw as a more permissive deal than she’d understood — or restrictions that had been altered without her knowledge — Coronado asked to see the settlement. That’s when Travis County told her she couldn’t.
Suspicion and mistrust
While declining to speak directly about Coronado’s case, Martinez said he had never altered the conditions of a deferred prosecution. Still, advocates say not being able to see the details of such an arrangement doesn’t make sense. “I don’t understand how
the agreement is supposed to work if no one, especially the victim, is allowed to know the terms,” said Jeana Lungwitz, director of the Domestic Violence Clinic at the UT Law School. “I suspect not many defendants self-report their violations.”
Open-records disputes are sent to the attorney general’s office for resolution. Escamilla said his office had submitted several other identical requests to the state agency and had been assured he had good legal reason to withhold the deferred prosecution agreements.
But in September, Paxton’s office changed course on Coronado’s request. It ordered Escamilla to turn over Cunningham’s deal with Travis County. The reasoning: The county had already treated the document as public by showing it to Cunningham.
Escamilla’s office appealed that decision to state district court. On Feb. 1, he asked the judge to seal certain documents in the case and close the courtroom to the public for a hearing. The Austin Bulldog, a nonprofit online news outlet that covers the city, filed an objection, which postponed the hearing. “You’ve got to wonder why
they’re doing these deals,” Aleshire said. “It just adds to suspicion and mistrust.”