Story by: Rachel Louise Snyder

The day Michelle Monson Mosure recanted, she stormed into the Billings, Mont., district attorney’s office, hysterical. Her husband, Rocky, had never made a threat, she said. She was to blame. He was a wonderful husband. A wonderful father. The prosecutor, Stacey Tenney, later told me that she knew Michelle was lying. Of course she was lying.

Just days earlier, Michelle, in an effort to obtain a restraining order, had for the first time completed an affidavit detailing what Rocky had done to her over the course of their decade-long relationship. “He beat me in front of my kids,” she wrote. “He made death threats in front of my children, sisters and his parents.” (Rocky’s parents say they never heard a death threat.)

The restraining order request was the first time Michelle had sought help. She’d kept Rocky’s abuse to herself for years, but then one day, in a rage, Rocky had broken into the home of Michelle’s mother, Sally, grabbed his daughter, who was staying with her, and fled. Sally called the police, and Rocky was arrested. With Rocky in jail, Michelle finally worked up the courage to file for a restraining order.

But then Rocky called his father and stepmother from jail, promising them he’d do better. So they bailed him out.

On hearing the news, Michelle “freaked out,” her sister said. Soon she was in the district attorney’s office taking back everything she’d said. Without her cooperation, there would be no case.

That was in September 2001. Two months later, Rocky shot and killed Michelle. Then he fatally shot his two children, and then he turned the gun on himself.

Domestic violence victims recant their testimony as much as 70 percent of the time, according to some estimates. People like Michelle do so to protect themselves against their abusers’ retaliation when they feel that authorities cannot or will not help.

Once they recant, they’re often proved right. Authorities in many jurisdictions still believe that without victim cooperation, there’s no reason to prosecute. If a victim doesn’t care, the logic goes, why should anyone else?

“The criminal justice system,” Ms. Tenney told me, “isn’t set up for uncooperative witnesses.”

In the 1980s and ’90s, however, a group of dedicated prosecutors began to believe recanting didn’t have to be an impediment to legal action; after all, murder trials happened every day without victim cooperation. They spent years building a movement for something called evidence-based prosecution, which kept a victim from having to take the stand against an abuser. Then, in the early 2000s, a Supreme Court case called Crawford v. Washington came along, and years of progress were placed in peril.

Long before Michelle Monson ever met Rocky Mosure, an activist named Ellen Pence began promoting a new way to prosecute cases of private violence.

Ms. Pence, who was based in Duluth, Minn., understood that in cases of domestic violence, victims recant out of fear of retaliation, as Michelle did, or because they are economically reliant on their abuser, as Michelle was. Very often abusers intimidate witnesses so thoroughly that they wind up not only recanting but also testifying for the defense. One court case I sat through detailed some of the more than 400 recorded calls a perpetrator made to his partner over the course of three weeks. He told her she was blowing everything out of proportion, he had people watching her, he’d never hit her again, he loved her, he owed her nothing. Of the many things communicated, he never once said, “I’m sorry.”

In late 1986, Ms. Pence’s work got the attention of a man named Casey Gwinn, a prosecutor in San Diego. Back then, he told me, if a witness didn’t want to testify against her abuser, the case was most often thrown out. Mr. Gwinn was intrigued by Ms. Pence’s work; he flew to Duluth and met with her. He returned home just in time to try his first evidence-based domestic violence case — against a sitting judge named Joe Davis.

Mr. Davis was accused of beating his girlfriend; his girlfriend had fled to Mexico. Mr. Gwinn decided to go forward with the case, using as evidence parts of the 911 tape and her injuries. Local media followed the trial intensely.

In front of a throng of television cameras, Mr. Gwinn lost. The case ended with a hung jury. It was a humiliating defeat. Recounting the story to me recently, Mr. Gwinn said he hadn’t known then how to cross-examine an abuser or how to explain the dynamics of an abusive relationship. “I made a fool of myself,” he told me. “I didn’t know what I was doing.”

But his efforts had caught the attention of San Diego’s city attorney at the time, John Witt. Mr. Witt called Mr. Gwinn to his office and told him it was going to be difficult, but he understood what Mr. Gwinn had tried to do. “He told me to go out and figure out how to win these cases,” Mr. Gwinn said.

Mr. Gwinn began ordering 911 tapes in all domestic violence cases. He asked the police to take pictures of everything: the crime scene, the victims, even the perpetrators raging in the backs of police vehicles. Any possible shred of evidence that existed, Mr. Gwinn wanted. He began to go out to local police departments to enlist them in his mission. When one sergeant told Mr. Gwinn that he was never going to prosecute these cases successfully, Mr. Gwinn created a messaging system to let the police know how their cases were resolved. It gave the officers a sense of agency, learning their efforts could actually make a difference.

Mr. Gwinn tried 21 cases in a row, all domestic violence misdemeanors. All without the victim testifying.

He won 17 of them.

By the mid-1990s, Mr. Gwinn had become a national leader in evidence-based prosecution; he and a colleague trained thousands of lawyers around the country. He believed fervently that if we could prosecute murderers without a victim’s cooperation, we could prosecute batterers.

The movement gained momentum across the country, particularly in left-leaning states and states with stricter domestic violence laws. Still, there were many rural and conservative areas where it hadn’t gained much traction — places like Montana.

Could evidence-based prosecution have saved Michelle Monson Mosure and her children? In addition to her affidavit, had anyone investigated further after she recanted, they might have learned how Rocky had threatened his family once with Michelle’s grandfather’s gun, or how he’d sometimes take the children as leverage to coerce Michelle into obeying him. They might have learned he was stalking his wife when she left the house, isolating her from friends and family — all of which could have come together to paint a picture of a family in serious danger.

In the end, it’s impossible to say whether Michelle could have been saved. But three years after her death came Crawford v. Washington, the case that nearly crushed two decades of progress.

Crawford v. Washingtona 2004 Supreme Court case, ruled that the Sixth Amendment’s confrontation clause barred admission of any testimonial statements made out of court, unless the witness who made the statement testified and was subject to cross-examination.

Jon Tunheim, a prosecutor in Thurston County, Wash., where the Crawford case originated, said that while the case was being argued, no one was even really paying attention. The question of what evidence was or wasn’t allowed seemed like settled law.

But once it was decided, Crawford hit the growing movement for evidence-based prosecution hard. Prosecutors could no longer use the statements of victims who would not appear in court. Michelle Monson Mosure’s affidavit, for example, would have been admissible in 2001 — the year she was killed — but would have been inadmissible under Crawford three years later.

“For about a year afterward the whole domestic violence community was just reeling,” Mr. Tunheim told me.

It has taken a while to gain its footing again. Prosecutors can still pursue domestic violence cases without victim testimony or cooperation. I recently sat in on a conference where a prosecutor from San Diego, Marnie Layon, gave examples of viable post-Crawford evidence: a victim’s demeanor, a platter of food spilled across the floor, independent witness observation, frantic calls or text messages to family and friends for help, social media posts.

And there is still some room for state courts to determine admissible evidence. A new set of cases, Hammon v. Washington and Davis v. Washington, have helped clarify what testimonial statements — ruled inadmissible under Crawford — actually mean. Emergency calls, for example, may or may not be allowed, and body camera footage, which is more and more common, bolsters many domestic violence cases.

But prosecuting in the post-Crawford era requires “creativity, ingenuity, hard work and dedication,” said Teresa Garvey, a former New Jersey prosecutor and attorney adviser at Aequitas, a nonprofit organization that helps prosecutors with gender-based violence. Gretta Gardner, a former Baltimore City prosecutor and now deputy director of the DC Coalition Against Domestic Violence, said a lot of prosecutors get scared off at the prospect of an aggressive defense lawyer. Crawford “gave them an excuse if a case was too difficult,” she said.

It had previously been a challenge to get prosecutors to even accept the idea of pursuing cases without victim cooperation, even when the victim’s testimony was admissible. Today, “what I’ve seen in prosecutors’ units is domestic violence fatigue,” Ms. Gardner said. Crawford doesn’t make prosecution impossible, but it makes things “complicated, too nuanced,” she added. “We’re kind of going backward.” Perpetrators, she said, “are not being prosecuted as often as they could and should be.”

In other words, “the barrier to evidence-based prosecution is not about evidence,” as Mr. Gwinn told me not long ago. It never really was. It’s about the kind of violence that is deemed worthy of state attention — like school shootings — and the kind that isn’t, like intimate partner violence. It’s about how we understand, or more often fail to understand, the intersections between family violence and nearly every other social issue we face in this country — homelessness, poverty, mental health, gender equality and yes, mass shootings.

“It’s not about the viability of winning these cases,” Mr. Gwinn said. “It’s about cultural norms and values. And at the heart of it is a stunning amount of misogyny.”

Read the original story here.