Fairness, Procedural Justice, and Domestic Violence: A Conversation with Judge Jeffrey Kremers

In this New Thinking podcast, Judge Jeffrey Kremers of the Milwaukee County Circuit Court brings procedural justice to bear on domestic violence. Sharing his insights from the bench, Judge Kremers talks about the importance of procedural justice for both defendants and survivors as well as their families, and discusses strategies for addressing the unique challenges posed by domestic violence cases.

This product was supported by Grant No. 2015-TA-AX-K023 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, or recommendations expressed in this podcast are those of the speaker(s) and do not necessarily reflect the view of the Department of Justice, Office on Violence Against Women.

The following is a transcript of the podcast:

Avni MAJITHIA-SEJPAL:
Hello, you're listening to the New Thinking Podcast. I'm Avni Majithia-Sejpal from The Center for Court Innovation. Today I'm joined by Judge Jeffrey Kremers. He is a judge at the Milwaukee County Circuit Court in Wisconsin, and we will be talking about the intersections of procedural justice and domestic violence. Judge Kremers, welcome.

Jeffrey KREMERS:
Thank you and I'm glad to take part in this podcast this afternoon.

MAJITHIA-SEJPAL:
Let's start with procedural justice, which refers to the experiences of defendants, litigants, victims and others within the justice system. And suggests that these experiences have a direct impact on justice. Procedural justice emphasizes the importance of good communication, clarity, respect, and objectivity or freedom from bias. Research has shown that when people believe that they were treated fairly, they're more likely to comply with court orders, regardless of the outcome of their cases. So Judge Kremers, why is procedural justice important to you? And in your experience as a judge, have you witnessed its impact on the people and cases who come through your court?

Jeffrey KREMERS:
Our mantra in the criminal courts in Milwaukee is that every interaction is an opportunity to reduce harm. So if that's our goal, to not only do justice, but also more importantly, in terms of your question, be perceived as doing justice, then I want to make sure that people have a voice. Meaning they can be heard. That we understand each other, that is they understand what I'm telling them, and I understand what they're telling me or asking me. That the court system is neutral in all respects, that's gender neutral, race neutral, wealth-based neutrality. And that everyone, from defendants, victims, witnesses, staff, lawyers, the public, are all treated respectfully. Then of course, I need to use the tenants of procedural justice.

MAJITHIA-SEJPAL:
Over the years, you have worked extensively with the issue of domestic violence and have presided over a specialized domestic violence court. What are the typical cases that you see?

Jeffrey KREMERS:
I preside in a criminal court, which means I handle any criminal case from a disorderly conduct up through attempt murder, where the parties involved have been in a domestic relationship, meaning they've either lived together or they have a child together. And the criminal act is between those two parties. They might be married, in which case there may be a parallel family court case going on, would seek to resolve the issues of custody or visitation or physical placement of the children. There might be a civil order of protection or an injunction in place, which will also be impacted by the criminal case.

There very often are children involved, so children's court may be involved, the Bureau of Child Welfare may be involved, so all of those other parts of the system may impact what we're doing. But in my court, the focus is on whether or not the state can prove the criminal allegations they've brought against the defendant. Now that also brings into play issues of no contact and the fact that, in many cases, the defendant is the breadwinner in the family. And so, there are issues of financial support for the victim, there's emotional support, so all of those things can come into play in the handling of a criminal case.

MAJITHIA-SEJPAL:
How would you say procedural justice can apply to cases like this? Especially when there are families and children involved and safety is a primary concern.

Jeffrey KREMERS:
So safety is always the number one concern in any domestic violence case, but at the same time, we're dealing with a very complicated situation. Because in every other kind of criminal case, or almost every other kind of criminal case, the victim and the defendant are strangers. Or at least don't have the same dynamics as a domestic violence kind of case. But here, there are very mixed feelings that the victim comes in with. And sometimes they just want the violence to stop. They really don't want the defendant to go to prison or jail. They still love the person, they still want the person to be around for the children, so there are these kinds of mixed emotions on the part of victims. In addition, our system of justice gives out mixed messages.

So in family court, or even in children's court, the idea is how do we unify these two parties or this family? How do we get them back together? Whereas in the criminal case, the push is more towards how do we separate them safely? How do we get this victim to move on, or the defendant to move on, where the victim doesn't want to be in contact with the person anymore? And so the messages are kind of mixed between what they might hear in family court, family unification, and what they hear in criminal court, no contact. And that is a difficult conversation to have and a difficult path to weave as you handle the case. And so, it's all the more critical that we employ the really strong principles of procedural justice. Because it's how you say it and how you explain it that becomes so critical to both parties, the defendant and the victim, and anybody else who's connected to the case.

MAJITHIA-SEJPAL:
When you're concerned about the safety of victims in your courtroom, how do you balance the victims against the defendants? Particularly with the view of asserting your neutral position?

KREMERS:
The way I would respond to that is to say that I don't believe there's anything incompatible with the principles of procedural justice in addressing both victim safety and offender accountability. I think we can do both if we focus on how we address the issues that are before the court. And keep in mind, those principles that I stated before of voice and neutrality and understanding and respect, and therefore focus on how we do what we do in court and not so much on the what or the why. Those are important, obviously. Determining what somebody did, whether it amounts to a criminal violation or not, and why they did it, in terms of focusing on an appropriate sentence, they're all obviously critical to the outcome of the case.

But equally critical is how we go about doing that. The relationships that bring these people to our court are almost never single incident cases. And you cannot address the event that's in front of you without an understanding of the relationship that brought the people to you. If you can't talk to people and get them to tell you what's going on, in a way that they feel safe telling, they feel like they're being heard, then you really don't understand the context and therefore can't really address the situation. No matter what the outcome of the case is.

MAJITHIA-SEJPAL:
Procedural justice is usually framed from the perspective of defendants, but with domestic violence cases, victims are extremely important to the case. So what are some of the challenges that you think they face within the court system?

KREMERS:
One of the biggest challenges that victims face, for example, is the notion that, why does she stay with him? Why did she dismiss the protection order? Why didn't she cooperate last time he was charged with beating her up and why should we believe her now? Or why should the system help her now, when she didn't give us an opportunity to help her before? It's almost paternalistic and it comes back to them in the form of prejudice or bias. If I've learned anything about out procedural fairness, it is that it really applies to everyone who comes in contact with the court system. From victims, defendants, lawyers, witnesses, the public, the staff, everyone. We have to develop strategies that focus on the needs and the input of each of those individuals or groups of individuals, so that's signage and how we treat people when they come in the building, to primarily how our staff and the courts treat people with respect to victims and their children.

We have had problems, certainly every court I've been in has had problems, with how victims get treated in the courts. And that's at the clerk's office when they're filling out paperwork, in the district attorney's office, and the courts themselves when they check-in. Whether it's the bailiff or the clerk of court or the court reporter, they all have to understand that their body language, their facial expressions, the way they answer questions, are all critical events in the life of that victim. The challenge for us in the system is to treat every single case as though it's the first one we've ever heard. But with the experience of all the cases we've ever heard behind us.

MAJITHIA-SEJPAL:
What about challenges to do with paperwork, technical language …

KREMERS:
Within our system, most of those issues are addressed because the district attorney's office has a very strong victim advocate program where every victim in a domestic violence case is assigned an advocate who helps them navigate the court system. So if there are papers that need to be filled out for victim compensation, for example, or if they want to get a restraining order, or an injunction, there's another set of advocates. When they come to court, the victim advocate is there and they have a separate waiting room where they can wait and not sit in the courtroom in the presence of the defendant or his family or friends or whatever the case may be. So that kind of a support system for victims, I think, is critical.

MAJITHIA-SEJPAL:
Do you come across victims who are also dealing with questions of immigration? How does that complicate domestic violence cases and particularly the question of procedural justice?

KREMERS:
We deal with a number of victims and defendants who have immigration issues. It is a significant complicating issue in those cases. Victims are very reticent to participate or cooperate because they're afraid that they're going to be deported or held. And that's just the ones who we know about. There are lots of other instances of domestic violence where there are immigration issues and the victim just doesn't even report it to the police because they are afraid. And of course, the defendant plays on that and I've seen it in court. I had a case last week where the victim indicated that the defendant was holding her papers and would not give them back unless she dropped the charges. So I had to address that by telling him that we were going to have a bail hearing, and if the victim doesn't have all of her papers back by then, I will consider that as an aggravating factor in determining his bail.

So it's a complicating factor, I think more than and bigger than the immigration issue, is cultural competence. It's one thing to understand the immigration implications of what's going on, but it's even a bigger question for us to understand what the cultural issues are. Why do they act the way they do in court? Why do they come into the court the way they do? Why do they not come into court? What is their expectation? It's particularly heightened in those communities that are very close-knit and relatively compact. And so, I think it's incumbent on judges and staff to be culturally competent and to see how those issues play out. Not only in the way they act in court, but also what our culture is and how we, therefore, interpret what they do or how we see what they do or how we hear what they say. Because if we're letting our culture get in the way of understanding their culture, then procedural justice just goes out the window.

MAJITHIA-SEJPAL:
As faculty at the National Judicial Institute on Domestic Violence, you've been involved in efforts to train other judges. Can you talk about what you pass on to judges regarding domestic violence and procedural justice?

KREMERS:
I'd go back to my first answer, about making sure they understand what the principles of procedural justice are in terms of neutrality and voice and respect and understanding. And that judges understand the context of what's happening in front of them, that they learn how to listen and not assume. I think it's critical to understand that how you talk to a defendant or a victim has a lot to say, I believe, about whether they're going to come back in your court. We know that domestic violence is a learned behavior. So if they can learn it, they can unlearn it. And that starts with how they're treated in court.

If I just call them a name and talk down to them or be disrespectful to them, you can see it in their eyes. And they just shut down. I watched a judge do a guilty plea one time, and if I gave you the transcript of the guilty plea you'd say, "That was perfect. He asked every question he should ask. And he got a yes and a no answer every place he should." But I was sitting in that courtroom and I watched the judge do it. He never once looked at the defendant, never once. He was just on autopilot. And when that defendant got up and walked past me, he didn't know I was a judge, he was just walking out of the courtroom with some family member. And he said, "That," using a profanity, "never looked at me, didn't pay any attention to me."

That's a perfect example of an opportunity lost to try and make a connection with the defendant. So I always ask defendants, "Why do you think this happened? What do you think you need to do to change?" I then will talk to them about what they said to me and why they did what they did and what caused it. Now they're in a position where they're willing to listen and to talk about it. That's the kind of message that I try and give to the judges at the Institute. And the last one, I guess, is that I say again and again, is every interaction you have with a defendant and a victim is an opportunity to reduce harm in your community. Don't waste that opportunity.

MAJITHIA-SEJPAL:
On that concluding note, Judge Kremers, thank you for sharing your experiences and insights on this very complex subject.

KREMERS:
Thank you, it's my pleasure.

MAJITHIA-SEJPAL:
This is Avni Majithia-Sejpal and you've been listening to the New Thinking Podcast. To hear more of our podcast, you can visit www.courtinnovation.org. Thanks for joining us.