By Kevin Haas
ROCKFORD — In the weeks leading up to an arrest in 2016, Nicholas August threatened a former girlfriend and tried to manipulate her into thinking she could never leave him.
His threats became more frequent and more dangerous, according to accusations laid out in an order of protection. At one point, he followed her to a store and yelled at her, “You will die and I am going to kill everyone in your family,” the court documents state.
But on the night of his arrest his phone call was different. He was asking for a favor.
“He asked me that night to write up a statement saying that I made a false police report,” the petition for an order of protection reads. “I told him I wouldn’t do that … so he got pissed off.”
August’s history is in the spotlight after a Jan. 3 holdup at Heritage Credit Union that shut down one of the city’s busiest thoroughfares for hours and brought 100 law enforcement officers to the scene. During a violent and horrifying ordeal that lasted 6 1/2 hours, police say the 38-year-old August sexually assaulted the hostage he held inside the East State Street credit union. August eventually surrendered, dropping to his knees with his hands up outside the building, and released his hostage.
The public nature of the crime is uncommon, but August’s history of domestic violence allegations followed by pleas for his accusers to recant is familiar to police and prosecutors.
“We’ve actually caught offenders on the jail (phone) saying, ‘You need to write an affidavit and give it to my lawyer,’” Rockford police Lt. Kurt Whisenand said last year in an interview with the Register Star. “They basically spell out to the victim how they recant.”
Accusers often recant in domestic violence cases. The reasons vary. They can be economic, if the victim relies on her abuser for shelter or financial support. It can be the result of a change of heart or pure manipulation.
It could be that “he’s a good dad and I need a good baby sitter,” Winnebago County State’s Attorney Marilyn Hite Ross said.
Hite Ross couldn’t say how often domestic violence victims recant, but during an interview last year she asked one of her office’s domestic violence attorneys for an estimate and was told “this week alone, between five and eight people,” she said.
The frequency at which victims recant, or stop cooperating with authorities, informs every move police and prosecutors make when they pursue charges. Authorities in some jurisdictions still rely on victim testimony to prosecute a case. But prosecutors get murder convictions without the victim’s testimony, so why do they rely on it for domestic violence?
That question is behind so-called evidence-based prosecution, the practice of basing a prosecution around what investigators can gather at the scene, through hospital records, text messages and other physical evidence.
“The whole philosophy is when a cop shows up at the scene, the focus of the cop needs to be: How can I prove this case six months from now without the victim?” former San Diego prosecutor Casey Gwinn said in a May interview with the Register Star. “There’s a huge paradigm shift that has to happen.”
Gwinn, a leader in the Family Justice Center concept that Mayor Tom McNamara’s administration is implementing here, pioneered the practice of evidence-based prosecution while working in San Diego in the late 1980s. An American Bar Association study showed the practice helped his office obtain a 70% jury trial conviction rate in misdemeanor domestic violence cases. The overall conviction rate was 96%, according to the 2001 study.
Since 2008, about 42% of all domestic violence jury trials in Winnebago County have resulted in a guilty verdict. By comparison, 61% of murder trials during that same time ended in a guilty verdict, according to a Register Star analysis of 17th Judicial Circuit Court cases provided at request of the newspaper.
The criminal justice system doesn’t collect data on conviction rates, and Hite Ross doesn’t track it for her office. That has, at times, put her at odds with the mayor’s administration, which needs the data to measure the success of its planned Family Peace Center and to apply for grants to support its operation.
But Hite Ross has a fundamental objection to tracking such data. Prosecutors, she says, should not chase high conviction rates but should approach each case in the service of justice, whether that means a conviction or not.
Still, Hite Ross said she embraces the evidence-based approach that Gwinn pioneered. She’s also put a priority on prosecuting domestic violence cases, and recently has moved to strengthen the domestic violence unit in her office to keep pace with a challenging caseload. She hopes to place an additional attorney on that team by month’s end.
Domestic violence cases are labor intensive for prosecutors, and they require a specialized understanding of how to work with victims. When prosecutors are overburdened, or if enough evidence isn’t collected from the onset of the case, offenders can slip through the cracks of the criminal justice system, says Gwinn, the city’s guide in launching the Family Peace Center.
Gwinn observed domestic violence court here in February and said he saw cases dismissed too often.
“I watched multiple cases be dismissed because the prosecutor didn’t have any way to prove the case, and didn’t have the ability … was either not willing or didn’t have the ability to go forward without the victim,” he said. “I never saw a case in court where they said, ‘Your honor, the victim is not present but we’re ready to proceed.’”
Hite Ross said her office moves forward without the victim’s testimony when the evidence is sufficient. She notes that she brought evidence-based prosecution here when she joined her predecessor Joe Bruscato’s staff in December 2008. Before that, she prosecuted the first domestic violence case without a victim in Cook County and got a conviction.
“We prosecuted it like a murder case,” she said. “We used the evidence from the hospital records. We had the medical staff come in and testify. We and the officers who had photographed her injuries and had observed her when they located her shortly after the abuse.”
She said her office went through substantial training with law enforcement to aid in domestic violence prosecutions.
“We have always followed that philosophy of evidence-based prosecution. Sometimes the evidence without the victim just isn’t there. Then, of course, there’s nothing that we can do,” Hite Ross said.
Her office has had success recently in trying domestic violence cases. In 2018, nine of the 11 trials ended in a guilty verdict. Three of four did in 2019, and the two trials so far this year resulted in convictions, according to cases from the 17th Judicial Circuit analyzed by the Register Star.
Fewer jury trials also can be a byproduct of adopting evidence-based prosecution, said Gael Strack, co-founder and CEO of Alliance for Hope International, who, along with Gwinn, is helping the city with its Family Peace Center plans.
“Most of the cases ended up pleading out, quite frankly, because if you build a strong case from the beginning there’s really no factual issue in dispute,” Strack said. “One way to solve this problem is to really put more effort on the front end to really gather all the information. In years past, they would just take the victim’s statement and that’s it.”
Hite Ross said more public awareness regarding domestic violence helps bring justice because people better understand the difficult dynamic faced by survivors. Whisenand, the Rockford police lieutenant, also calls for public support in curbing the city’s issues with domestic violence, which accounts for approximately 35% of the city’s violent crime.
“It’s not a problem that you can arrest your way out of. It’s not a problem that you can prosecute your way out of. It has to be the entire community,” Whisenand said. “It has to be the whole community identifying those relationships that are toxic and bad and intervening with those resources.”