Victim advocate won’t be forced to testify

Kim Smith

Friday, April 5, 2002 | 11:04 a.m.

Even though he knows his decision will "cripple" the case against a battery suspect, District Judge Michael Cherry said Thursday he will not force a domestic violence shelter to reveal information desperately sought by prosecutors.

Deputy District Attorney Donna Rosenberg had sought to force Safe Nest officials to reveal the name of a victim advocate so that she could be forced to testify in an upcoming kidnapping and battery case.

The alleged victim in the case has recanted her version of the events of Sept. 19 and the advocate is needed for the successful prosecution of the case, Rosenberg told Cherry.

The advocate could tell jurors that the woman was so terrified after being stabbed in the face by Ernesto Hill that she spent two months in a shelter, Rosenberg said. She could also describe the alleged victim's demeanor as she waited for Hill's preliminary hearing to begin in November.

"The victim was terrified about seeing the defendant, she was terrified to have to identify the defendant and she was terrified to have to testify against the defendant," Rosenberg said following the hearing. "She was shaking and crying."

Because Hill's preliminary hearing was canceled when he said he would enter a plea agreement, the alleged victim did not have to testify and therefore, her story has not been memorialized on paper, Rosenberg said.

Hill ended up backing out of the plea agreement and the victim is now saying she was the aggressor in their fight and she was stabbed accidentally, Rosenberg said.

"Now the victim says the only reason she went to a shelter is for female bonding," Rosenberg said.

Safe Nest attorney Bridget Branigan told Cherry that the information Rosenberg requested is confidential. To release it violates federal statutes and could jeopardize their federal funding, she said.

Moreover, if prosecutors obtain confidential information, defense attorneys would then be entitled to it as well, Branigan said.

As a result, "releasing any information at all could have a chilling effect on women coming forward," Branigan said.

Forcing a victim advocate to testify could also jeopardize her life and the lives of others at the shelter, should a batterer decide to follow the advocate to the shelter's secret location, Branigan said.

Rosenberg countered that any victim or witness in a homicide, sexual assault or armed robbery case is afraid of retaliation and yet they are compelled to testify.

"If the victim in this case had been accompanied to the preliminary hearing by her best friend, her best friend would have been subpoenaed to testify," Rosenberg said. "If any employee at a bank testifies at a bank robbery trial, what's to stop someone from going to that particular branch and shooting everyone there?"

Cherry acknowledged the merits on each side, but said the needs of the shelter outweigh the needs of the district attorney's office in this case, at least.

"We need to protect the program, it's too valuable to the community," Cherry said.

Rosenberg said she intends to proceed with the trial, which is scheduled for May 28.

Hill faces a battery with use of a deadly weapon charge, a first-degree kidnapping with use of a deadly weapon charge and a violation of a protective domestic order charge.

"As of now, the judge has made a ruling and we'll go forward with the best of our resources in the prosecution of my case," Rosenberg said.