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Craig Mastantuono Nov. 29, 2012

Domestic Violence Homicides UpJanuary 18, 2010Wisconsin Law Journal Staff

A preliminary report from the Wisconsin Coalition Against Domestic Violence (WCADV) revealed a dramatic spike in domestic violence homicides last year.

According to the organization, there were 60 domestic violence-related deaths in 2009, compared to only 36 in 2008.

“Tensions are certainly high in some homes and I’d imagine the economy might be a part of that,” said Waukesha defense attorney Jennifer R. Dorow.

She hasn’t had a domestic violence-related homicide case this year, but has “gotten some repeat customers” recently for lesser charges.

Kohler & Hart LLP attorney Brian Kinstler recently successfully defended a Sheboygan woman accused of killing her husband, who had abused her for more than a decade, on New Year’s Day 2009.

He suggested that there may be more women offenders in domestic violence-related homicides than in the past.

“Based on my contact with domestic violence counseling centers, I’ve sensed that there has been an increase in the number of women who are essentially taking things into their own hands,” he said.

Tony Gibart, Policy Coordinator for WCADV, said preliminary numbers show an increase in the number of female perpetrators.

“It’s still in the single digits, but there is definitely an increase,” he said.

Harder to try

Criminal defense lawyers suggest that the higher numbers could make domestic violence cases harder to win, as district attorneys seek tougher punishments.

“When domestic violence is high on a district attorney’s radar, my clients will have to jump through more hoops to get considered for formal diversion programs,” said Dorow, a former prosecutor now at Huppertz & Dorow SC in Waukesha. “Pre-trial offers get tougher and there is less room for negotiation.”

That means someone who was referred to a treatment program for a misdemeanor offense two years ago may not get the same opportunity for counseling if their case comes across the prosecutor’s desk again.

Veteran criminal defense attorney Craig A. Mastantuono agreed.

“If it’s a case that goes to trial, we need to be twice as diligent,” said Mastantuono, of Mastantuono Law Office SC in Milwaukee.

If you’re handling a case for a client accused of homicide in the domestic violence context, Mastantuono said, the first step is to explore whether a self-defense argument is viable.

Things such as a documented history of abuse in a relationship or witness testimony on the dynamic of the relationship between the accused and the decedent can help bolster a self-defense claim.

Kinstler noted that a defendant’s testimony alone is not always enough to prove repeated abuse.

He said that in his case, he was able to track down records dating back to 1995. He also recommended researching police calls for evidence of prior instances of abuse.

“Interviewing friends and confidants, police contacts and contacts that clients may have gone to at domestic violence resource centers all can help in making a case,” Kinstler advised.

But absent a solid self-defense argument or unique circumstances, domestic violence homicide cases can be tough to win, Mastantuono said.

“They are tough to mitigate,” he said, “because a person accused of domestic violence is not sympathetic.”

Kinstler said when he was picking his jury for the trial in Sheboygan, the vast majority of the initial pool revealed either a personal or family history of domestic violence.

“I think that jurors are generally more aware of domestic violence issues than you might expect,” he said. “I was amazed.”