December 6, 2000

by Jill Kramer

Linda Fermin's husband grabbed her by the hair and slammed her into the wall.  Screaming into her ear, he twisted her arm behind her back and yanked it up to the back of her head.  Then he put one hand over her nose and mouth.  Unable to breathe, she grew dizzy, fell to the floor and blacked out.  Moments later, she regained consciousness to see him hustling their two young children down the hallway and into the living room.  She crawled into the bedroom and discovered that, in her terror, she had wet her pants.  She changed into a fresh pair, thinking, "thank God, it's over, and he didn't kill me."  But her odyssey through the legal system was just about to begin.  And, at one point, when things had gone terribly wrong, she wondered which was worse -- the abuse from her husband or what felt like her re-victimization by the system.

The domestic violence laws are a work in progress.  There is no question that, as a society, we now punish spousal abuse more harshly than we used to.  We're also getting better at re-training batterers so that many of them stop their violent behavior.  But there are still problems in the legal process.  The Pacific Sun is examining one case to see where some of the problems occur, in the hope that they can be prevented in the future.  We'll tell the story of Joe and Linda Fermin through her eyes, from the start of their marriage to his present confinement in the Marin county jail.

When they met, she was 24, he was 40.  She was blonde, baby-faced and pudgy.  She'd had a weight problem all her life, and hadn't dated much in high school.  He was handsome, slim, charming and exotic -- his Dominican Republic origins  showed in his light brown skin and amber eyes.  He made beautiful custom leather goods in his free time and held a steady job doing repairs for a luggage company.  Linda's family loved him, and so did she.  She lost weight while they were dating.  They married within the year.  It was 1988.

Soon after the wedding, Linda started putting on weight again.  He told her she was fat and disgusting.  He was sexually rough with her, often forcing her into painful positions.  "He'd call me names and tell me, 'no one else will have you, and I'm the only one who would care about you.'  But [abuse] starts off in a way you're not sure it's really happening," she says.  "And then when you realize it's happening to you, you think, well, maybe it's true what he's saying.  You get into a tailspin and you don't know what's right and what's wrong."

They had a daughter, then a son.  Joe stopped working for the luggage company -- Linda was never sure if he quit or was fired.  She became the sole support for the family, working in bank management.  They fought about money and he'd throw her around.  Embarrassed and confused, she couldn't bring herself to tell her parents, much less the police.  But one time in 1996, when he kicked her and threw her over the couch, she did run to a neighbor's house to call the cops.  When they arrived, Joe claimed that Linda had assaulted him; and, to Linda's astonishment, it seemed that the police believed him.  They left without making an arrest.  Still, Joe was on his best behavior for awhile afterward.

Then Linda began discovering more and more distressing things about Joe.  He was doing drugs, sometimes taking the children with him to make his buys.  He was still contributing no money to the household -- but worse, she found that he was cashing checks his mother sent for the kids and throwing away presents she sent for them. She learned from his family that he'd lied to her, for no apparent reason, about details from his past.  And the physical abuse continued.  Linda says he told her, on several occasions, that the only way she'd ever leave him was "in a box."  He also threatened to go back to the Dominican Republic and take the kids with him.  She grew emotionally distant from him and, by the end of 1998, she had decided to end the marriage.  She began to ask him to leave, hoping they could part peacefully.  He ignored her.

The final confrontation came in May of '99, a Thursday evening after she came home from work.  He was sitting in the living room with the kids, now nine and four.  She asked him for money, he said he didn't have any.  She went out to the garage, where his leather workshop was, and found his wallet.  Inside, she says, was "a ton of cash -- maybe four hundred dollars and some checks."  She came back to tell him what she found and a screaming match ensued.  She decided to retrieve her insurance card that he kept in his wallet and went back out to the garage.  He came out just as she was stuffing the card in the waistband of her pants.  Thinking that she had taken the money, he grabbed at her but she got away.  He caught up with her inside the house, grabbed her by the hair and slammed her into the wall.  Their daughter, watching the scene in horror, burst into tears.  "Look in your wallet!" Linda screamed as he twisted her arm behind her back.  "I didn't take any money!"  He looked, and let her go.  But then she ordered him out of the house.  That was it.  He came after her again, knocked her into another wall, held his hand over her mouth and she passed out.  When she recovered, she changed her soiled pants, grabbed her purse and walked deliberately down the hallway.  Passing the living room on her way to the garage, she called to the kids to come with her.  They followed her, got into the car, she locked all the doors.  Joe saw her backing out of the garage with her cell phone in her hand.  He took off in the other car while she called the police.

Linda found out later from her doctor what Joe had done to her.  There were small tears in the tendons and nerves in her shoulder, and the cartilage in her hip had snapped.

Joe was arrested the following Monday, when he'd returned to the house in violation of the restraining order that Linda had taken out against him.  He was in jail for ten days until a friend bailed him out.  The district attorney filed criminal charges against Joe.  He filed for divorce.

The two cases -- the criminal and the civil -- proceeded slowly over the course of the next year.  The DA charged Joe with one felony battery and three misdemeanor violations of the restraining order.  But civil charges were also piling up against him in the divorce case as he disregarded one court order after another.  By the spring of 2000, there were 20 counts of contempt of court on the civil side, for his failure to pay child support and refusing to attend a batterer's program.  As it turned out, the sentence he received in civil court was more severe than his punishment in criminal court.  The civil judge, Randy Heubach, threw the book at him.  The maximum time allowed for each contempt charge is five days in jail.  Heubach gave him 100 days, five for each of the 20 counts. 

In criminal court, Judge Stephen Graham, eager to avoid a trial, proposed a deal:  he would reduce the felony to a misdemeanor, so Joe would be facing four misdemeanors, and Joe would plead guilty.  But at the sentencing hearing in May, Linda made an impassioned, eloquent statement about the hell that she had been living through.  Graham was so moved, he announced that he would reconsider his earlier proposal -- perhaps this crime should be dealt with as a felony after all.  He asked the prosecutor, Ellen Yee, to consult with Linda to see how she felt about it.  Yee told her that, if she insisted on a felony, Joe would likely demand a trial.  The risk of going to trial, of course, is that you can lose.  Did she want to put her kids through the trauma of testifying against their father in court?  Without the children's testimony, it was essentially Linda's word against Joe's.  The judge had indicated that he didn't see this as a state prison case anyway, so Joe would only face jail time whether there was a trial or not.  Linda felt that Yee was encouraging her to go along with the misdemeanor deal.  Still distraught from her wrenching testimony, she said okay.  Yee told the judge.  The defense asked for a continuance, so they had to come back for sentencing in June.

But as they left the courtroom, with Joe walking closely behind her, Linda became frightened.  He was still out on bail.  He'd violated the restraining order before -- what was to keep him from coming after her again?  She ran up to Yee and told her she changed her mind.  She wanted to go to trial.  She wanted Joe behind bars.  Yee told her it was too late for her to make a pleading in front of the judge -- the defense attorney had already left.  Yee says now that Linda could have made her feelings known to the judge by either writing him a letter or by making a statement next time they appeared in court.  Linda says Yee did not make that clear to her.

"I wanted to go to trial," she says.  "I felt that they [the DA's office] didn't want to.  But I felt like I had a strong case."  The prosecutor wasn't so sure.  "The risk is an acquittal," says assistant district attorney Ed Berberian.  "And what does that tell the defendant about how he conducted himself?  That could enforce upon him that I can do this."

Still, Linda was expecting Joe to go to jail.  He could have gotten as much as four years -- one for each misdemeanor.  The probation department recommended 120 days in jail. Graham gave him 90.  To Linda, it seemed like a slap on the wrist.

But Joe didn't go back to jail at all.  He was ordered to turn himself in to custody in two weeks.  Unbeknownst to Linda, he applied for parole while he was still out on bail.  He appeared before the parole board the day before he was to go to jail and was put on home arrest instead. Once again, his punishment had been reduced.  "In Marin county, an awful lot of people who are sentenced to jail time never spend any time in jail," Judge Graham told the Sun.  "They're in alternative programs.  I can't order how a misdemeanor is to be served, I can only make a recommendation."  In this case, he hadn't done so.

The parole board allowed Joe to wear an electronic monitoring bracelet for four months, with the condition that he attend the batterer's program at Marin Abused Women's Services and make the back child support payments that he owed. 

"The idea" of home arrest, says parole board member Joanne Buckwalter, "is, one, to save the job and, two, to get immediate treatment.  With parole, you can have the jail time right over his head.  If he doesn't [comply with the conditions], you can yank him right back in."

It didn't work out that way.  Just before his first child support payment was due, Joe cut off the electronic bracelet and disappeared.  On August 9, Linda got a call from the secretary of the parole board.  "Linda," he said, "do you know where your children are?"  Linda was frantic.  "Who's going to be responsible if something happens to me or my kids?" she wondered.  It was then that she regretted having trusted the criminal justice system.  "With what the legal system has done over all this time, I would never have proceeded.  I would have sat back and been done with it.  I would never put myself through that again."

Today, she's feeling a little better about the system.  Joe was eventually apprehended in October, largely thanks to Linda's own detective work.  It was also fortunate that, in August, the DA's office was able to hire a part-time investigator to serve warrants.  Linda tracked Joe down to a boat he was living on in San Francisco.  She told the investigator, who staked out the boat and arrested Joe when he showed up.  He's been in custody ever since.

How long he remains there is still unclear.  Judge Graham gave him an extra 120 days for violating probation, on top of the original 90.  But what became of the 100 days ordered by Judge Heubach?  Somehow, that order got lost in the shuffle.  "There is no automatic cross-check between the civil and the criminal, in the sense that you have systems online that you can quickly check," says Berberian.  "There should be.  And that is a weakness in the system, there's no doubt about it." 

There is another misunderstanding about the Heubach order that has never been corrrected.  Heubach left it up to Graham to decide whether the criminal and civil sentences should be served concurrently or consecutively.  But Graham believed that Heubach wanted them concurrent, so he left it that way.  And how did he get that impression?   Graham relied on Yee for the information, and Yee relied on Linda.  It was Linda who called Yee to tell her about what happened in civil court, and she got her legal terms confused.  Yee simply relayed what she heard to the judge.  When Linda found out about the mixup, she said, "Why is she going to the victim? Shouldn't she check the record?"  The Sun asked Yee the same question.  She didn't have an answer.

At the end of November, Yee called Linda and told her that the jail had no record of the additional 100 days.  She suggested that Linda have her civil attorney go back to family court to clarify the matter.  Linda was outraged.  "That is absolutely ridiculous," she says.  "I have to go back to court to tell the judge to do what he already said he was going to do?  I'm getting sick and tired of doing their jobs for them.  When are they going to put me on the payroll?"

There are a number of ways that this case -- and, presumably, other cases -- could have been handled better.  Victims should be notified when a convicted batterer has applied for parole.  In this case, if Linda had known about Joe's initial parole application, she would have warned the board that he was a flight risk.  If he were paroled anyway, at least she would have been prepared.  There should also be some coordination between the civil and criminal courts when a divorce case is running parallel to a domestic violence case.  District attorney Paula Kamena hopes that someday a special court could be created to handle both types of cases in the same arena.  "Imagine how much better it would be," she says, "if the judge who does the custody orders and the family support orders also does the domestic violence cases.  The confusion that apparently Ms. Fermin went through wouldn't exist."  Meanwhile, it would help if there were a computerized system to give judges and attorneys easy access to both the civil and criminal sides.

The issue of whether or not batterers are adequately punished is another question.  Linda is still on pain medication for the damage that she suffered at her husband's hands a year and a half ago.  To her mind, Joe got off easy.  But just a few years ago, he wouldn't have done any time at all.  Until the law was changed in 1998, domestic violence cases were routinely "diverted" -- instead of being prosecuted, the batterer was simply told to attend a treatment program.  If he didn't go, there were no consequences.  Today, chances are better that a batterer will learn to change his behavior.  When Joe is eventually paroled, the authorities will expect him to go to a 52-week treatment program.  If he doesn't, they'll drag him back to jail again.  If they can find him.