Zero Tolerance

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It is mid-morning already, more than an hour since Twana Davis and her three children arrived at the Queens County criminal courthouse. Thankfully, the hallways are cool despite the sweltering July day outside. After standing expectantly near the courtroom door for nearly 45 minutes, the reserved 26-year-old has settled onto a wide marble bench, watching her children have one last talk with the assistant district attorney.

By Twana’s recollection, this is at least the third assistant DA on her child abuse case–which after a harrowing five months is about to be dismissed for lack of any credible evidence. Jennifer Gottlieb rises from her crouch after delivering a tight hug and a rub of the head to Addonia and Eddie, Twana’s two eldest children and the original complainants against her. Then the government lawyer smiles apologetically at some visitors in the hallway, admitting with a short laugh, “I don’t want to be anywhere near this.”

Gottlieb, who came on the case in its last three weeks, was brave enough to end the long and sorry criminal justice saga of Twana Davis. The story began in the early morning hours of Sunday, March 2, when two police officers knocked on the door of her Far Rockaway home, responding to a report made by the Brooklyn police and an Administration for Children’s Services caseworker. Twana’s ex-husband, who had taken the children for the weekend, had Eddie and Addonia in a hospital near his home in East New York. She was being arrested, police told Twana, on suspicion of punching Eddie in the eye and whipping Addonia on the back of the neck with a dog chain.

In the weeks that followed, no one bothered to investigate the complaints. The evidence of the case rested solely on the children’s statements and the fact that their father felt compelled to bring the children to the hospital to have them “treated.”

Four months and two weeks later, when Gottlieb finally made some calls, she discovered that a doctor at Brookdale University Hospital, after fully examining both children, concluded there was no medical evidence to back up the children’s allegations, and that their father had a disturbing habit of “leading the witnesses” while they were talking. A school social worker had also seen the kids the week prior to Twana’s arrest and noticed no injuries. And the children themselves had abandoned their stories–after child protection workers sent them for four turbulent weeks to live with their father, a man with a criminal record for, among other things, viciously beating their mother.

Davis’ is one of hundreds of such cases showing up in the city’s criminal courthouses this year. There has been no formal announcement, but the police have a new “must-arrest” policy in cases of reported child abuse and neglect, observes Judge Thomas Farber, who presides over all misdemeanor child endangerment cases in Brooklyn. While the police themselves refused City Limits‘ repeated requests for an interview, people who populate the criminal justice system say the trend has been obvious for the last eight months. New York City’s famed policy of zero tolerance for low-level misdemeanor street crimes has moved into the home.

Stories range from those like Twana’s, where there are allegations but no physical evidence of abuse, to cases (commonly seen in the newspapers these days) where parents have left their children alone in potentially dangerous situations. In the past, these kinds of cases have been handled by child protection workers empowered to move children to foster care if necessary. Now they are also being handled–some say “man-handled”–by police, prosecutors and the courts.

“Last winter I had several women charged with endangering their children because they were heating their apartments with a stove,” observes Judge Martin G. Karopkin, who sits in Kings County arraignment court. “I said, what about the landlord? Would the mother be any less irresponsible if she let the apartment freeze up?”

There is no doubt, Karopkin says, that child abusers should be criminally prosecuted. But in more questionable cases, prosecutors and cops should be more wary of being “caught up in a passionate desire to do right.”

He adds that in many of these misdemeanor cases, child protection workers don’t see fit to permanently remove the children from the home–yet still their parents are arrested for allegedly mistreating them. If done improperly, all of this can permanently scar a family, he warns. “We have to remember,” he says, “the government is, ultimately, not going to assume responsibility for raising these children.”

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In the case of Twana Davis, no truer words have been spoken. Since she gave birth to her son Eddie Jr. 10 years ago, Twana has taken sole responsibility for raising her children. Though she was married to Eddie’s and Addonia’s father, Eddie Davis Sr., for five years, Twana says the children’s care fell almost entirely to her. The same was true when she lived with a second man, the father of her six-year-old son Netwan, another batterer whom she managed to escape.

For the last two years, Twana has gone it alone, managing to enroll full-time at Lehman College and move the children out of a violent neighborhood in East New York, where she grew up, into more peaceful surroundings on the second floor of a two-family home in Far Rockaway, Queens.

Twana’s friends at New Ammies Chapel Fire Baptized Holiness Church maintain that she has done her best to guide her children, seeing that they attend church school and services on Sunday and Bible school on Tuesday. Twana herself serves as vice-president of both the children’s choir and the youth group. And in a particularly sweet victory last spring, She managed to win her children a religious education, securing a three-year scholarship for each of them at St. Mary’s Star of the Sea, a local Catholic school. “I have always admired the way she handles her children,” says the church’s junior pastor, Marian James.

But in the early morning hours of Sunday, March 2, the police weren’t interviewing Twana’s pastor. They were talking to Eddie Davis Sr., a man with a criminal record including three arrests for abusing his ex-wife, the worst of which happened nine years ago when he beat her with a car jack. Twana says, however, that Eddie didn’t hurt his children and, after the divorce, the couple maintained an informal arrangement where he could take Eddie Jr. and Addonia for an occasional weekend visit–as long as they were supervised by Eddie Sr.’s mother.

According to Addonia, she and her brother were visiting their father’s house, sleeping in the bedroom, when he came in, “took off his belt,” and asked them to talk about how their mother had abused them. Addonia now shrinks from offering additional details about that night, but her earnest description of the ensuing weeks leaves no doubt about her opinion of what happened. “I think they put my mommy through a whole bunch of trouble. And I couldn’t see my mommy for three weeks. I was crying for my mommy. And I was happy when I went home.”

Police, court, and hospital documents in the case offer only sketchy details of the hours preceding the arrest and, since neither the police officers nor the ACS worker involved are permitted to talk about the case, there is no way to determine exactly who is responsible.

But this much is known from piecing together accounts from court documents, interviews with those involved and, most importantly, observations of the emergency room physician who examined Eddie and Addonia: When the children left their mother’s house on Saturday afternoon, they were fine. Their father reported the children’s abuse allegations to the police later that evening. Then, either he or the police notified the child protection authorities.

Then, apparently at the request of the caseworker in a Manhattan office of the Administration for Children’s Services, the children and father were brought by ambulance to Brookdale Hospital. Around 4:30 a.m., they were examined by Dr. David Cabbad, the physician in charge of Brookdale’s pediatric emergency department.

But before the exam was completed, Cabbad recalls, Twana Davis had been arrested. The physician says an ACS staffer contacted him before he went into the examining room, telling him the agency suspected abuse in this case. But that’s not what Cabbad saw.

“The guy brought in his kids and said the mother had been beating them,” he says. “I examined the children and they looked fine.” Eddie Davis Sr., on the other hand, “was very forceful when I started asking the kids questions. It was like he was leading the witness: ‘Mommy hit you, right?'” Cabbad notes this pattern is relatively frequent in emergency rooms. One parent will bring in the kids late at night, alleging abuse on the part of the other. “It’s very common, especially in custody battles.”

Cabbad immediately called the caseworker to tell him he saw no evidence Eddie had been punched or Addonia had been whipped. It was then that he was told that Twana had already been arrested. “I said, for what? And they said, ‘On the word of the father.'”

“I think somebody jumped the gun,” Cabbad says. But he adds he wasn’t surprised by the response of the officers. The police have been much more involved in ACS investigations “since they changed the letters of the agency” from CWA to ACS, he notes. “Every time [ACS workers] come in now, they come in with the police.”

He adds that after the examination was complete, he discussed his diagnosis with the father, who then left the hospital with the children. When Twana’s brother and three other friends arrived in a panic shortly after, Cabbad gave them his card, but told them there was nothing he could do. “Unfortunately,” he said, “this is in the system.”

That wasn’t much help to Twana. She spent the next 16 hours sitting a Queens holding cell awaiting arraignment, worrying about what had happened to her children. As it turns out, Netwan, apparently deemed to be in good health, was sent home with Twana’s brother. And according to police papers, Eddie and Addonia were left in the custody of their father–per the orders of ACS.

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Two years ago, cases like this were rare in criminal court. Back then, the cops and district attorneys were primarily interested in cases with hard evidence of a serious crime: a broken arm, a radiator burn, charges of sexual abuse. Knotty stories like Davis’, lacking documented physical evidence and featuring sharply conflicting witness accounts, were sorted out by child welfare workers and civil court judges trained in family law.

But that was before the highly publicized death of Elisa Izquierdo. The grisly circumstances of the 6-year-old’s November 1995 murder, combined with the fact that child protection workers had been warned repeatedly of her plight, fueled the perception that caseworkers–shielded by closed-door proceedings in Family Court–were failing to pursue these cases, protecting parents at the expense of their children.

The publicity put everyone on notice–from child welfare officials, police and prosecutors to teachers, hospital administrators and the mayor–that the city’s children were tragically underserved. Under intense public pressure, Mayor Rudolph Giuliani appointed Nicholas Scoppetta, a respected child advocate and a noted former prosecutor, to head the restructured Administration for Children’s Services. At the same time, the police and district attorneys–sensitized by both the Izquierdo case and new thinking about domestic violence in general–were looking at their own response to child abuse and neglect calls.

Scoppetta called for dozens of reforms–several of which would sharply change the way ACS does business. Among them, he proposed revamping the Family Court system, increasing criminal penalties for child endangerment and, importantly, enlisting the help of police and prosecutors in child abuse and neglect cases.

Later this summer, Scoppetta and Police Commissioner Howard Safir are slated to announce a formal partnership with the city’s five district attorneys in dealing with reports funneled through the state’s child abuse hotline. The most serious sounding reports–expected to be 35 to 40 percent of the approximately 1,000 cases ACS now handles each week–will warrant an “instant response” from ACS, police and prosecutors, meaning they will all arrive at the scene as soon as possible. Remaining calls will get a “coordinated response,” meaning an ACS caseworker will decide whom to bring in.

ACS officials note, however, that Scoppetta, making use of his contacts in the prosecutors’ offices, has already accomplished much of this informally. The senior staff is now in constant contact with their counterparts in the criminal justice agencies.

Officials emphasize that these initiatives are designed to net only serious offenders. Yet physical and sexual abuse cases are in fact relatively rare–only 8 percent of parents are charged with “abuse” in Family Court. The rest are dealing with issues of neglect. So the criminal justice system’s new approach inevitably focuses primarily on neglect charges. It’s a new universe for cops, the prosecutors and the courts. And their role doesn’t sit well with people close to the child welfare system–even those who spend their time advocating for abused and neglected children.

“I think for all of us, there has been a real surprise that these have turned into arrest cases and child endangerment cases going through the criminal court system,” notes Jane Spinak, the attorney in charge of the Juvenile Rights Division at the Legal Aid Society. Her staff represents some 44,000 children each year in Family Court proceedings. “Overall, what we’re seeing is that these are issues about whether parents are properly supervising kids. …That’s not a criminal question. That’s a child protection question.”

ACS Deputy Commissioner William Bell admits this is an issue. “Does it do a disservice if a mother is arrested when there has not been a ‘real’ crime against the child? That’s something that we have to look at,” he says. But he reiterates that ACS is “first, last and always” in the business of protecting the child. “We have to explore any potential crime that has been committed against a child and then make a decision on a case-by-case basis.”

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This sounds rational enough, and it is–if the people in the criminal justice system could be trusted to carefully scrutinize these low-level cases. But such care is rare in criminal court, particularly in the misdemeanor parts, where judges confess they have been swamped under a caseload generated by new aggressive policing policies and Mayor Giuliani’s quality-of-life initiatives.

Instead, a system has evolved where parents accused of misdemeanors are routinely offered a plea bargain that would ostensibly leave them free of a permanent conviction record–most commonly they get an “ACD” or adjournment in contemplation of dismissal–if they agree to attend parenting-skills classes and stay out of trouble for a year. Who could argue? It sounds like a good deal for everyone involved. But as Twana Davis found out, that’s exactly the problem.

Inside the courtroom that Sunday night, Twana was greeted with a criminal complaint sworn out by her ex-husband and a Rockaways police officer. It basically repeated the children’s allegations, although, interestingly, Addonia’s allegation of being hit by a “dog chain,” seen all the way through the arrest documents, was reduced to a “plastic rope” in the complaint. Altogether, Twana was facing two counts of misdemeanor assault and two counts of endangering the welfare of a child.

Twana tried to explain to her court-appointed lawyer that there was medical evidence showing that she had not beaten the children. She was told this could be produced at a later date. In the meantime, she was free to go home. Then the prosecution asked for something that shocked Twana: a full order of protection forbidding her from having any contact with Eddie Jr. or Addonia until her next court date more than three weeks away. Her court-appointed lawyer made no protest and the order was granted.

As a result, Eddie Davis Sr. received custody of the children, at least temporarily, because ACS was not formally involved in the case and had chosen not to petition Family Court to “remove” the children to foster care. Technically, this also meant ACS had not formally “placed” the children with Eddie Sr., although that was the effect of the caseworker’s instructions at the time of the arrest. In criminal court, it is not the job of the judge or the prosecutors to investigate the home where children are placed; they could justly assume that the ACS caseworker knew what he was doing. Apparently, he did not.

According to Twana, Addonia, and members of Twana’s church, the next four weeks were hair-raising for the whole family. Routinely violating an order she knew nothing about, Addonia would call her mother almost every night, often sobbing. She and Eddie Jr. were not in school, Twana was told, because their father never bothered to bring them. Addonia missed her friends and her bed at home. Most of all, she said, she was just lonely for her mother.

Eventually, the children prevailed on their father to at least take them to their church. When he complied, members of the congregation greeting the children were appalled to see a deep, bar-shaped burn on Addonia’s forehead, apparently accidentally made with a hot comb. “It was white, down to where you see the flesh,” pastor James recalls. “There was no reason for her to have a mark there.”

Lacking any obvious alternatives, Twana says she tried to obediently suffer through until her next court date. Then one night, Addonia called her from a pay phone on the street. She had wandered out and no one had noticed, she reported. Twana, knowing what the streets of East New York were like, ordered her back to her father’s apartment immediately. After the girl was safely inside, Twana sagged onto her couch and realized the time had come to fight this thing–hard.

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Twana says she began frantically calling the people who helped her during the years she had been battered. Eventually, a staffer at a shelter she once stayed in recommended she call Network for Women’s Services, a nonprofit that locates volunteer lawyers for poor women.

There she got a hold of lawyer Jill Zuccardy who, as a former family law attorney for Legal Services, immediately recognized the suspect role Twana’s former batterer was playing in this case. Zuccardy started working her contacts in Queens, and convinced Vincent Siccardi, a seasoned criminal defense lawyer, to take over Twana’s case pro bono. Meanwhile, Zuccardy set about pursuing the investigation that the police and district attorney did not do. She found Dr. Cabbad, securing an affidavit supporting Twana’s story. And she talked to people at ACS, sensing they felt queasy about the case. Three and a half weeks after the arrest, ACS finally wrote a letter to the court, admitting there was not enough evidence to take the children away.

“We have an active case,” wrote Helene Cook, an ACS supervisor. However, she added, “the allegations of excessive corporal punishment cannot be substantiated, as the doctor who examined the children on 3-2-97 stated there was no medical evidence to support the allegations.”

Cook continued that some of the children’s claims should still be considered valid. “At this time we cannot say that the mother physically abuses the children. However, she does engage in inappropriate punishment such as throwing objects at the children.

“If the order of protection is dropped against Mrs. Davis, we can work on returning the children to her,” Cook concluded. “However, she must enroll in parenting skills classes. Of course, we will monitor this case until services begin.”

Caseworkers frequently assist parents of questionable competence by pushing them to accept parenting skills classes or other social services. But they do not have the leverage to force a parent into classes unless the agency formally removes the children or can prove in Family Court that the parent abuses or neglects their child. And to do that in Twana’s case, they would have had to convince a judge the children were more than likely in “imminent danger,” the standard Family Court requires. For obvious reasons, ACS never sued to take Twana’s children; they didn’t have the proof they needed. But the agency also refused to declare the case “unfounded”–thereby leaving the criminal court without any guidance.

Siccardi thought he had the facts to get the case dismissed outright. With the doctor’s affidavit, he managed to convince a judge to change the terms of the order of protection so Twana’s children could finally return home. But the prosecutor vigorously fought this change and would not consent to a full dismissal of the case. The terms stood: an adjournment for one year in contemplation of dismissal with required parenting skills classes.

On Zuccardy’s advice, Twana rejected the offer. While the assistant DA was technically offering a dismissal of the case, anyone familiar with the court system understands the deal has the practical effect of admitting guilt to child endangerment and assault charges. Zuccardy and others familiar with Family Court proceedings felt this could severely hurt Twana if ACS later tried to remove her children. Moreover, Zuccardy points out, there was no guarantee Twana’s ex-husband wouldn’t try to make more trouble, with the knowledge that she would be vulnerable for a whole year.

As for Twana, she says she wanted vindication. She was studying full-time to be a social worker; she had always planned on working with children. While her court records would be sealed, she says that without a full dismissal she wouldn’t be able to honestly answer any employer inquiries about her criminal background. And, she adds quietly, taking parenting skills classes would simply be a waste of her time. “I’ve been a parent for ten years. I’ve gone through the hardest part already,” she says. “I know what I’m doing.”

Still, it took nearly four more months of court appearances and of shuttling the children to interviews before Siccardi could convince the DA’s office to drop the case. It was only after Siccardi demanded a trial, and Gottlieb–the new prosecutor on the case–began questioning Twana’s witnesses, that the DA’s office relented.

On the day of the dismissal, Gottlieb was clearly moved by the palpable relief of Twana and her children. She smiled broadly and walked over to hug Addonia and Eddie Jr. after the judge said, “Motion granted.” Siccardi was impressed. “She did the right thing,” he said, walking out of the courtroom. “She didn’t have to do that. She could have covered her ass.”

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That is a phenomenon so common it has it has been reduced to an acronym in the DA’s office, Brooklyn’s Judge Karopkin says with a laugh. “CYA: Cover Your Ass.”

Judges and prosecutors admit this is especially true in child protection cases. “There are a lot of cases that proceed, it seems to me, past the point where perhaps they should, because nobody wants to take risks,” notes Judge Farber, who is himself a former Manhattan prosecutor. It’s quite possible, he admits, that some of these parents may be innocent. The publicity that surrounds child abuse and neglect cases probably prevents prosecutors from dropping weaker cases, he says bluntly. But, he adds, that is understandable. “In child cases, maybe that’s OK. The consequences are so severe if an error is made. You really want to be sure.”

During the last few months in Brooklyn, where Farber and Karopkin work, the system for dealing with these misdemeanor cases has been changing–probably for the better. Kings County District Attorney Charles Hynes has long made domestic violence and child endangerment cases a top priority. And in May, he established a specialized Crimes Against Children Bureau staffed with eight specially-trained, full-time prosecutors. Hynes’ emphasis is on learning how to properly handle children as witnesses–while improving the initial investigations so that prosecutors do not have to rely on the kids’ accusations alone, says Bureau Chief Ama Dwimoh.

The DA’s hope is that effective misdemeanor prosecutions will ultimately reduce the number of serious, tragic abuse cases, explains Lisa Smith, a professor at Brooklyn Law School and an architect of Hynes’ domestic violence initiatives. Certainly, this seems to have proven true in battering cases, she says. “I think the abusers get a message from being arrested, being booked, being arraigned, and going in for a court date. There is value in that,” she says. “You see that if you put an effort into prosecution, you can get somewhere.”

“Nobody wants to prosecute,” Smith adds. “They want to prevent..”

With such an emphasis on up-front investigations, prosecutorial misfires like Twana Davis’ case could be avoided. But at this point, only Brooklyn is putting such a model program in place.

For her part, Davis says she understands the prosecutors may have the best intentions. But, she says, they should remember one phrase: “Innocent until proven guilty.” This fall, she hopes to return to school and complete her social work degree.

“Before everything happened, I wanted to work for ACS,” she says, bemused. “But that’s a turn-off now.”