In the messy world of domestic violence cases, often complicated by a lover's willingness to forgive, this one had a promising twist for prosecutors: Though the woman refused to testify against her boyfriend, a police officer said she had witnessed the attack in a Laurel gas station parking lot.
But Anne Arundel County Circuit Judge Paul Harris, in a decision that has victims' rights advocates crying foul, acquitted the man charged with second-degree assault after he was accused of striking his girlfriend three times in the face. The judge said that without the woman's testimony, he could not be sure that she hadn't consented to the attack.
"The state is stepping into the shoes of the victim when she obviously doesn't care," Harris told the prosecutor, according to a recording of the Oct. 3 hearing. "It's that big brother mentality of the state. ... But I have to decide the case based on what I have, and I think a crucial element is missing."
And in a comment that has riled victims' advocates and prosecutors, Harris added, "You have very rare cases; sadomasochists sometimes like to get beat up."
With authorities across the country encouraging victims of domestic violence to come forward, concerns were raised yesterday that the judge's comments and dismissal of the case set a dangerous precedent - one that threatens to erode victims' trust in the legal system.
Police and prosecutors are encouraged to push forward with cases even when witnesses won't assist them, said Michaele Cohen, executive director of the Maryland Network Against Domestic Violence. Officers responding to domestic violence incidents are required to fill out added paperwork so that other evidence exists besides witness statements.
"The goal is to enable prosecutors to prosecute, whether or not the victim decides to participate," Cohen said.
According to charging documents, a police officer was on routine patrol when she saw Michael Antonio Webb approach a car at an Exxon station in Laurel. Webb reached in the driver's side door and swung his hand three times at the driver, police said.
Webb, 24, of Columbia is 6 feet, 3 inches tall and weighs 315 pounds, according to charging documents. Now serving a four-year prison term after pleading guilty to a drug distribution charge in June, Webb was unavailable for comment yesterday but had pleaded not guilty in the assault case.
His attorney, Kara Donaldson, was out of the country and could not be reached for comment yesterday.
The officer testified in court that she was 25 feet from the car at the time of the incident.
"I witnessed him use his right hand, not in a fist, but in, I guess, an open hand, and push the female's face. ... As I saw him grabbing her hair ... and trying to pull her out, that's when I called it on the radio," the officer said, according to a recording of the hearing.
The woman told the officer that Webb had attempted to pull her out of the vehicle, causing her hairpiece to fall off, and that he hit her in the face, though she characterized it as "more of a tap than a punch." The woman had no visible injuries, police said.
The officer testified, "She appeared scared. She was talking very quiet to me. She wasn't making eye contact with him."
The judge's comments were first reported yesterday in The Capital of Annapolis.
For more than a year after the June 2006 arrest in the Laurel attack, prosecutors were unable to locate the woman to assist in the case. Two show-cause hearings were held, and the court ordered that she be arrested for failure to appear in response to a witness subpoena.
Attempts to reach the woman, who is 39, were unsuccessful yesterday.
But Harris, in an interview in his office yesterday, said the state did not prove its case, saying there was "too much speculation."
Harris noted that the jury instructions on charges of second-degree assault say that it must be proved that "the defendant's actions were not consented to by the victim."
"How do you determine that without the victim?" Harris said, adding that criticism of his handling of the case was "blown out of proportion."
Harris said the sadomasochist comment was intended as a hypothetical. "I'm probably as against domestic violence as anybody, when the case is proven."
Experts in the legal community questioned the judge's contention that the victim's testimony was key to the case, specifically because a police officer offered eyewitness testimony.
Byron L. Warnken, a professor at the University of Baltimore School of Law, said in many cases, key elements of a crime are often proved through "reasonable inferences."
"Unless he found that the officer was not credible, it appears that there would be enough by which a typical fact-finder, a reasonable fact-finder, would have found the element of second- degree assault to exist in that case beyond a reasonable doubt," Warnken said. "The notion that you can't possibly try this case without the victim there is incorrect. What would we do in a murder case?"
Lynn McLain, a professor at the University of Baltimore, said: "Very often, domestic violence victims do not appear and do not testify, and often that is because they are intimidated by the abuser."
Of the judge's comments, McLain said, "It certainly seems to me these comments were unusual. ... They were inappropriate. And I would suspect that those comments would be reported to the [Commission of Judicial Disabilities], and they would investigate to see whether they were inappropriate."
Comments from the bench have landed judges in trouble in the past.
In 1993, Baltimore County Circuit Judge Thomas J. Bollinger agreed to participate in sensitivity training at the recommendation of the state bar association. Complaints had been filed after the judge did not give a prison term to a man convicted of second- degree rape, saying that the woman, who had been drinking with the man, passed out and was carried to his apartment by friends, had facilitated the rape.
Bollinger noted from the bench that having a pretty young woman passed out in bed was "the dream of a lot of males."
Anne Arundel State's Attorney Frank R. Weathersbee, the county's top prosecutor, said his office routinely prosecutes defendants in domestic violence cases when an accuser won't testify. Roughly one-fourth of the 14,000 to 16,000 cases that his office prosecutes each year are classified as domestic violence, Weathersbee said.
"There are lots of reasons why the victim doesn't want to proceed, but we recognize the cycle of violence continues and in order to protect the victims we go ahead and proceed," Weathersbee said.
Weathersbee called the judge's decision "unfortunate."
"He talked about sadomasochists - that's a little over the top," Weathersbee said. "But that's why we have judges, so they can make decisions."