Nicole Bissonnette

Conditions of bail and 8th amendment freedoms – reflections on domestic violence homicide

Michael Sefton, Ph.D. Dangerousness assessment, domestic violence homicide, DVH, Human Behavior, Police officer behavior, psychological relevence , , , , , , , ,

The 8th Amendment guarantees that people will not be faced with unfair conditions while in custody nor should they have undue hardship following adjudication. But when victim safety requires it then some modification of this rule must be considered. Dangerousness to possible victims requires some abusive subjects (usually men) be held without opportunity for bail at least as long as it takes to confirm that there is no immediate danger to possible family members. This evaluation sometimes takes hours to days to complete. In Massachusetts, here in the US, some courts have court clinics that can assess persons in custody for risk of suicide and dangerousness. The pandemic has reduced this option significantly and arraignments were conducted virtually for months. Many district courts work with domestic violence agencies on a regular basis sometimes in the court buildings near court rooms.

Maine Law Review

Not much has changed since the Maine Law Review cited our work in its 2012 in Nicole Bissonnette’s review of bail conditions following domestic violence. Ms. Bissonnette published second paper in 2017, in the same MAINE Law Review that gives some quick and easy fixes for the 8th Amendment conundrum as it pertains to domestic violence. It is a fact that victims generally do not call police when the abuse first begins. It is also a fact that if a victim has been threatened with death if she “leaves” or “asks for a divorce” then her risk is substantially elevated and a safety plan must be provided including an order of protection.

The 8th amendment guarantees that excessive bail nor excessive fines shall not be required when someone is in custody and when found guilty of a crime. In many cases of domestic violence assault, abusive spouses are released on personal recognizance – essentially no bail is taken. Abusers are required to show-up on the next court day (usually Monday morning) and answer to charges of assault, domestic abuse, or whatever the evidence shows. The 8th Amendment also specifies that punishment for crimes shall not be excessive, overly punitive or harsh. It is frequent that abusers may have no criminal record whatsoever. Given that fact, it is hard to argue for high bail in a case where the defendant is unlikely to skip out on an initial hearing. This is precisely the reason why officer reports must include detailed statements from victims and witnesses – especially children.

I agree in principle that bail should not be punitive but neither should a family be faced with constant fear and danger because of the arrogant defiance of an abusive spouse. People without means do not have money for bail and some individuals are unfairly kept in jail simply because they or their families do not have cash for release from custody. So, a person who may be unemployed and was picked up for shoplifting and has 2 prior arrests may have an artificially high bail so he sits for weeks in a county jail awaiting trial. There are times when dangerous supersedes the right to be released from custody. This requires close scrutiny for making bail conditions that reflect risk to community and red flags for individual families.

In the 2017 Maine Law Review, Nicole Bissonnette restated her 2012 premise that bail conditions must be considered carefully when it comes to letting violent intimate partners out of custody. Ms.Bissonnette smartly cited the work done by this author and colleagues that brought these issues into sharp focus (Allanach et al. 2012). The importance of orders of protection cannot be understated in preventing domestic violence homicide. “The purpose of this follow-up comment is to evaluate the existing (PFA) system and assess methods of improving outcomes while avoiding prohibitive fiscal impacts” according to Ms. Bissonnete, 2017. The process, structure and failings of the existing system will be illustrated by the tragic deaths of Amy Lake and her two children, who were murdered by Steven Lake, despite the PFA in effect at the time. It was this case that brought domestic violence homicide into national prominence and provided substantive recommendations for mitigating DVH. Information is often unavailable to bail clerks or even judges when PFA’s are needed most. Information such as whether the defendant has previously violated conditions of release, probation or other orders, including, but not limited to, violating protection from abuse orders according to Jennifer Thompson, 2004. When these factors are affirmed then bail conditions must be revised in real time accordingly. Substantial bail for violation of protective orders is but one of them. Some believe that having non-refundable, very high bail is the only sanction to prevent recurring violations of the PFA. The 8th Amendment informs that bail may not unfairly impact people without employment and those who do not have financial means to buy there way out of jail.

There are cases, as recently as 2021 where a protection order was denied and domestic violence escalated into death of the New Hampshire suspect and critical injuries to intimate partner who became the victim. A judge did not think a protective order was warranted. Similarly, in Austin, TX, a disgraced police officer shot and killed his step-daughter, the teen’s boyfriend and his former wife in April 2021, even after the teenage girl begged for a protective order with the option to hold the abuser in jail. Her fear was palpable. The shooter was required to wear an ankle bracelet for 90 days after which he was free to stalk his former family who were trying to move on. There were several flaws in the safety plan in this case that ultimately triggered the terminal event such as coming together for planned visitation so the former police officer could visit his son who was not murdered. In New Hampshire, a judge denied a protective order on the basis that the abuser had not been violent since 2016 although acknowledged that the man was coercive and controlling. The victim, Lindsay Smith, was shot and critically wounded in Salem, MA in November 2021. Her former boyfriend, who had stalked the victim for the years since the break-up reportedly said he intended to forever “turn her life upside down” died from a self-inflicted gunshot wound. This may have been avoided if the temporary restraining that had expired had been approved to become a permanent restraining order as the victim had petitioned.

The desire to mitigate police discretion in domestic violence cases stems, in part, from problems relating to “the inherent ambiguity of the police-citizen encounter in the context of domestic violence.”

Jennifer Thompson, 2004 Maine Law Review

The domestic violence literature suggests that after 5-7 beatings victims will reluctantly summon police – especially if they fear either they or their children are about to be murdered. The details Calais, ME case of domestic violence are being carefully guarded even today. It is known that Daniel Phinney, 26 was out on bail after being arrested and charged with domestic violence and criminal threatening in May 2013. At that point he must have both physically assaulted his significant other and threatened to kill or maim his family resulting in the charge of criminal threatening. Police are quick to say that Phinney had “no prior criminal history” perhaps in an effort to obfuscate public outrage evoked by the system of bail in Maine that releases violent abusers over and over again on low bail. Had anyone made an effort to determine the degree of risk posed by Daniel Phinney prior to his release? Had anyone registered safety concerns based on the defendant’s behavior and history? If there had been routine aftermath follow-up then this may have been a known fact. A psychological assessment of Phinney may have provided important details about his impulse control, substance use, coping skill, and proclivity toward violence and had been charged previously with domestic violence. Phinney was killed by police in a stand-off in Calais, Maine shortly after being released from custody.

The case is reminiscent of the 2011 Steven Lake homicide in Dexter. Lake had twice been released on bail before murdering his family.  The medical autopsy concluded that “in spite of psychological counseling (the state) failed to appreciate the degree of anger and violence in Steven Lake”.  He had also been charged with criminal threatening after holding his family at gunpoint as he drove home the point about how much he loved them but he could not let Amy move on. 

Using a firearm in the commission of a domestic violence incident is defacto evidence of dangerousness and no bail shall be considered until such time as all firearms are collected and a viable safety plan is in place for potential victims including police protection. Michael Sefton, Ph.D. 2021

I was a member of a team that conducted a psychological autopsy on Steven Lake that resulted in over 50 recommendations to the esteemed Maine Attorney General’s Homicide Review panel in November 2012. At first glance there appears to be brash indifference toward the court protection order and the failure to remove firearms held by the defendant. It is now important to study the case of Daniel Phinney and others, so we ma learn from the many red flags exhibited in the weeks prior to his death. These red flag events must lead to stopping and containments points in future cases of domestic violence and domestic violence homicide. No family should be kept in fear by a spouse whose loathsome behavior derails all human spirit and sense of dignity.

At what point does the well-being of victims and potential victims rise above the abuser’s right to bail?

Michael Sefton, 2014 on the 8th Amendment and PFA orders

Allanach, R et al., Psychological Autopsy of June 13, 2011, Dexter, Maine Domestic Violence Homicides and Suicide: Final Report 39 (Nov. 28, 2011), http://pinetreewatchdog.org/files/2011/12/Dexter-DVH-Psychological-Autopsy-Final-Report-112811- 111.pdf.

Bissonnette, NR (2012). Domestic Violence and Enforcement of Protection from Abuse Orders: Simple Fixes to Help Prevent Intra-Family Homicide, 65 Me. L. Rev. 287. Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol65/iss1/12

Thompson, J (2004). Who’s Afraid of Judicial Activism? Reconceptualizing a Traditional Paradigm in the Context of Specialized Domestic Violence Court Programs, 56 Me. L. Rev. 407.

Sefton, M. (2021) Domestic violence and the importance of red flag warnings for preventing homicide. WordPress Blogpost. https://msefton.blog/2021/04/24/domestic-violence-and-the-importance-of-red-flag-warnings-for-preventing-homicide/ taken 2-25-2021

Domestic violence and the importance of red flag warnings for preventing homicide

Michael Sefton, Ph.D. domestic violence, domestic violence homicide, Human Behavior , , , , , , ,

The police in Austin,Texas here in the United States are dealing with a horrific case of domestic violence homicide just this week 2021. A former Traverse County sheriff’s detective killed three members of his family while picking up his son for a monthly supervised visit. Stephen Broderick shot and killed his former wife, step-daughter and the girls boyfriend. He did this all the while he was coming to visit the 9 year old boy. Broderick fled the murder scene was captured 20 hours later. That Broderick was a police officer made this case of special circumstance.

The 16-year old child, who was among the victims, begged for a more restrictive supervision from her step-father who had been released from jail on lower bail and was not required to wear an ankle bracelet after a period of 3 months. The order of protection was brought against former police detective who was now unemployed. In spite of the protection order being in place, even the teen knew that orders of protection were often violated and difficult to monitor. It is reported that when victims believe that they will one day be killed by an intimate partner then the danger is real and should be considered a red flag. Having a child unrelated to the abuser In the household is another significant red flag. 

“In the year that Amy Lake’s protection from abuse order was active against Steven, he violated that order at least five times but spent fewer than two days in jail for those violations, the report found. He also stalked her on Facebook, according to Diane Bowlby of the Bangor Daily News who was at the scene shortly after homicides.

Bangor Daily News 2012

Now nearly 10 years on, the psychological autopsy conducted in 2011, looked at the red flag warnings that are common to DVH everywhere. some I have described above. What brought my attention to the case in Maine was the purported prosecutorial impotence demonstrated by the district attorney Christopher Almy provided to local television. Almy said there was “nothing that could have been done” to protect the victim, Amy Lake and her two children, from her estranged husband Steven Lake. By saying there was nothing that could be done to protect the Lake family, the DA inadvertently undermined not only the police but the many agencies and medical professionals charged with drafting safety plans for victims of intimate partner abuse everywhere. In a similar way, newly elected county DA Jose Garza said he was “confident police did all they could to protect this family and he was incredibly proud of the officers” for the way they handled the Broderick case. More than one citizen comment in the newpaper questioned how anyone can be proud of a situation resulting in the deaths of 3 human beings? Given the outcome in both cases, and countless others, comments such as these strain credulity and fail to inspire.

On June 12, 2011, Mr. Lake snuck into the Amy’s rented home in Dexter and staged a despicable murder scene ultimately killing the children he claimed to love while Amy was forced to watch. Ending with her shotgun murder and is own death by suicide – ending the Lake family timeline forever.

In an article on contingencies for bail in cases of domestic violence, attorney Nicole R. Bissonnette writes in the the Maine Law Review about the importance of thoughtful conditions of bail, especially among men who are found to have violated these conditions often by texting, stalking and using social media to intimidate and contact potential victims of extended family members. Her published paper adds that failure to relinquish all firearms must be reported to the federal database. Ms.Bissonnette cited our work over 12 times as it pertained to “red flag” warnings and bail reform. Bissonnette raised questions about protection orders and the need for added tools of enforcement for men who violate the protection from abuse orders (PFA) often called restraining orders.

In Maine, men who violate orders of protection are often released from custody with low bail or no bail. Steven Lake was twice released from jail on two thousand dollars that was paid by his father. We proposed increasing bail by a factor of ten on any violation of the stay away order and that a comprehensive review of possible high risk warning signs and psychological history be undertaken prior to release. Using a firearm in the commission of a domestic violence incident is defacto evidence of dangerousness and no bail shall be permitted until such time as all firearms are collected and a viable safety plan is in place for potential victims including police protection.

The argument made by defense lawyers is invariably, that the lack of a criminal history defies precedent for holding men on large amounts of bail. This is illogical given the numerous red flags that were present in this case and Lake’s disregard for the law. In truth, Mr. Lake had never been arrested for his history of sexual crimes during the marriage, verbal threatening or anything until his final meltdown began. Tension boiled over on June 14, 2010, at the family home at 9 Brighton Road in Wellington when Steven allegedly brandished a gun in front of his family, threatening Amy and the man he accused her of having a relationship with, as reported in the Bangor Daily News. After that event, he was arrested and charged with criminal threatening for which he was heard to say that “he would never serve a day” in jail and that “the price of divorce is 35 cents – about the cost of one bullet.”  A comment that a court appointed psychologist might have wanted to better understand.

Lake slept with a pistol and holster hanging on his bed post. He posed with a rifle in his high school year book.  Steven was a gun guy and owned over 20 firearms. The criminal threatening occurred one year before he killed them all as the trial for criminal threatening approached and as the countdown to his divorce from Amy began ticking louder in his brain. None of his weapons were inventoried by police. Had he been held on high bail for each of the PFA violations and been properly assessed for his proclivity toward violence, he would have been unable to kill them one year down the road in 2011. Yet he had time to scribble over 10 suicide notes blaming everyone but himself for the deaths including the judge and his father-in-law, whom he promised to “see in hell.”  His father told us for the final report that if the judge had only let Steven see his 2 children for the 8th grade celebration, this could have all been avoided. Like his son, the senior Mr Lake looked to redirect blame away from his son. The 2 hours we spent with Steven Lake’s parents were perhaps the most unsettling and sad of the nearly 200 hours and 60 people who agreed to be interviewed. 

Fast forward 10 years. The setting is north central Texas. On Sunday morning April 18, 2021, in northwest Austin, law enforcement officials say Stephen Broderick shot and killed his step-daughter, Alyssa; her mother and his estranged wife, Amanda Broderick, 35; and Alyssa’s boyfriend, Willie Simmons III, 18. The 9 year old child was not harmed. 

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Stephen Broderick booking photo 2021

It is common for former intimate partners troll the social media accounts of family members in an effort to locate estranged spouse and her children who may be in hiding. Both Amy Lake and Amanda Broderick, the Texas mother of 3 expressed an interest in having children remain in contact with extended family, in spite of pending felony charges. Amy was keen to have her children see their grandparents (Steven’s parents) and have supervised visits with Steven. She communicated with her in-laws regularly via social media showing photos and posting life without Steven that he saw while trolling her account. 

Meanwhile, Amanda Broderick was said to have been sent over 30 text messages with a variety of intimidating sentiments about the upcoming trial yet she okayed supervised visits with their son, age 9. Any contact like this is a violation of the protective order and should have landed Broderick in jail. And they were sure to open up possible access to the jealous perpetrator to clues about current living arrangements, employment, after school activities, and other potential clues that raised the risk of further domestic violence and ultimately DVH. There were messages of deep felt sorrow and remorse as well, that are common in the cycle of abuse.

While awaiting adjudication of felony charges there must be no contact between children and violent perpetrator whatsoever. In Austin, the victim expressed a wish to allow her estranged husband to have contact with the little boy – his son, in spite of pending felony rape charges brought forth by the 16-year old step daughter who rightfully feared for her life. Amanda Broderick saw this as being in the “best interest of the child”. This remains a weakness in the overall safety plan and should have been denied by the family court.  It was unjustified given the fear expressed by the victims in this case, which ultimately were quite valid.

Firearms are a major cause of DVH and in every state are required to be taken from men with active protection orders in place. This was the default expectation in the two cases described here but in the case of Stephen Lake his arsenal of 22 firearms were not removed from his possession in spite of court orders. Similarly, the Austin killer was left with at least one firearm used to kill his family. Lake left 9 suicide notes many of which were rambling, angry tirades toward his wife and in laws. The Austin killer did not take his own life and was captured raising the specter of possible psychological analysis of his motives making the two cases very different at this level. To what extent Texas authorities will endeavor to understand the events that preceded the murders remains unclear. However, gaining a comprehensive understanding of the red flag warnings in this case is highly recommended and will add to the body of literature on domestic violence.

A court-sanctioned visitation agreement required them to maintain some contact to allow Broderick time with his son. In the application for a protective order, Amanda wrote that Broderick called her some 30 times after she left home to intimidate. She feared he would come after her and the children, she said, “because these allegations have come out and he may lose his career.” He could be dangerous, she warned.

Why would a court require that an abused family be required to allow an accused rapist to have visits with a 9 year old child? It cannot be in anyone’s best interest to have forced visitation with a violent and angry abuser.  One could argue that the killer in Austin, Steven Broderick shared most commonalities with the Maine case ten years previously, including sexual violence, coersion, threats of death, pathological jealousy, violation of the order of protection, trolling social media and refusal to surrender his firearms. He was a cop. Broderick was a SWAT trained police officer who resigned his position after being arrested for sexual assault on his step daughter. He should not have had a firearm pending the outcome of his case. He was released from jail on partial bail because he did not have the funds for the bail that was set by the court. He should not have been permitted to visit with his biological son. The risk of violence as was easily foreseen given past behavior. In the same manner, Stephen Lake would never stand trial, and had a cheap divorce in mind early on. 

“Domestic violence is not random and unpredictable. There are red flags that trigger an emotional undulation that bears energy like the movement of tectonic plates beneath the sea.” according to Michael Sefton (2016).

  1. Threatens to kill spouse if she leaves him – pathological jealousy
  2. Actual use of firearm or other weapon anytime during domestic violence incident
  3.  Access to firearms even if he never used them – veiled threats
  4. Attempt at strangulation ever during fight
  5. Forced sex anytime during relationship
  6. Unemployment of perpetrator
  7. Stalking via social media
  8. Presence of unrelated “step”child in home
  9. Spouse finds new relationship soon after separating
  10. Low bail release from custody – high bail holds are essential in DVH mitigation

In Maine, Texas and across America, the criminal justice system – including prosecutors, too often fail to protect victims of domestic and family violence from their abusers — even when the “red flag” warning signs are obvious as they were in both these cases.  See the 10 risk factors above for specific warning signs common to DVH. This begs the question, why are cases of domestic violence homicide not more fully examined with a psychological autopsy? These examinations might add to the body of literature and create impetus for change in DV law including bail conditions as suggested in the Maine Law Review. This post-mortem psychological examination would provide a number of clear red flags that are common from case to case. By doing so, perpetrators and those responsible for prosecuting them would operate quite differently. The judicial system for bail conditions would be beefed up including use of GPS monitoring along with high bail for repeat violations of protection orders. This must be taken seriously to provide greater security for potential victims and children growing up in these secretive, marginalized, and violent families. Advocates say the episode is a horrific example of a long-standing problem that hardly ever makes headlines: America’s criminal justice system too often fails to protect victims of domestic and family violence from their abusers according to the Texas Tribune published 4-23-2021.

If you or someone you know is facing domestic violence, call the National Domestic Violence hotline for help at (800) 799-SAFE (7234)

Sefton, M. (2016) Blog post: DVH in MA: 4 year old child begs his father.  https://msefton.wordpress.com/2016/10/02/dvh-in-ma-4-year-old-child-begs-father-not-to-murder-his-mother/. Taken 4-25-2021

Allanach R. et al., (2011). Psychological Autopsy of June 13, 2011, Dexter, Maine Domestic Violence Homicides and Suicide: Final Report 39 (Nov. 28, 2011), http://pinetreewatchdog.org/files/2011/12/Dexter-DVH-Psychological-Autopsy-Final-Report-112811-111.pdf.