Attorney Paul DeMeester said he is filing an emergency appeal with the U.S. Court of Appeals in San Francisco on Monday in hopes of keeping his client, Katina Britt, out of jail.
Judge Robert Foiles held Britt in contempt of court this week and ordered her to surrender to the jail on Tuesday morning. She refuses to testify at ex-boyfriend David Gilford's ongoing domestic violence trial out of concern for her personal safety, DeMeester said.
Gilford, 28, is accused of beating Britt so badly in November 2003 that she was knocked unconscious and hospitalized for bleeding kidneys. He is charged with domestic violence against a cohabitant and burglary, and faces 11 years in prison if convicted.
Chief Deputy District Attorney Steve Wagstaffe said Foiles made the order to coerce Britt into testifying for her own protection, not to punish her. Without her testimony, the domestic violence case is weak, and Gilford will more likely be convicted of a lesser charge of assault.
"Like every other case, the victim can't control the outcome," Wagstaffe said. "Given what we know about domestic violence and the cycle of violence, we can't let people get away with it."
DeMeester said that, by ordering her to jail, Foiles and the San Mateo County District Attorney's Office are misinterpreting a law that is supposed to protect domestic violence victims like Britt. He said it is only during asecond proceeding for the same incident that a victim can be jailed for refusing to testify, and Britt has refused in just one proceeding, the current trial.
Wagstaffe said the court followed the law by providing Britt with domestic violence counseling after she refused to testify last Monday. She was ordered to go to jail after refusing to testify a second time later in the week.
Wagstaffe said recorded jail phone calls made by Gilford indicate that Britt is being pressured by Gilford's family members not to testify. He said Britt has wanted to testify in the past, and gave a full report on the incident after it occurred.
Another key witness who could help the case against Gilford is Britt's son, who was 11 years old when he witnessed Gilford attack his mother, Wagstaffe said. The boy has been reported missing to police in the East Bay by his grandmother, which Wagstaffe said could be related to the boy's own subpoena.
Wagstaffe said approximately 75 percent of domestic violence victims are reluctant to testify, but the majority choose to do so after they receive counseling. It is rare that it comes to the point where a judge has to threaten the victim with jail time.
If Britt surrenders, she will remain incarcerated until she chooses to testify or Gilford's trial is over, which would be a matter of days, Wagstaffe said.
DeMeester is going to file appeals with Foiles and the federal court to try to keep Britt out of jail. He said he will also draft language that will clarify the existing state law, which he will submit to the legislature.
Contact staff writer Malaika Fraley at (650) 306-2425 or by e-mail at firstname.lastname@example.org.