San Jose Mercury News

Published Saturday, July 31, 1999, in the San Jose Mercury News

Abuse victim sues over jailing

Recanted story: Woman says a deputy district attorney tried to force her to testify.

By Sandra Gonzales
Mercury News Staff Writer

In an unusual lawsuit targeting the tactics of a Santa Clara County prosecutor, a domestic-violence victim is suing the lawyer for false imprisonment, claiming he retaliated against her for refusing to show up to testify against her abusive husband by having her thrown into jail.

The lawyer defends his approach as one of the few ways to successfully prosecute a crime in which as many as nine out of 10 victims recant testimony against their abusers.

In the suit filed Wednesday in Superior Court, Lori Drane contends she told Deputy District Attorney Matthew Braker that she had lied about 1997 domestic-violence charges against her husband. Drane said Braker then began harassing her and threatening her with prosecution if she did not change her testimony to match the initial statement she gave to police.

``What got this lawsuit rolling was a prosecutor who decided that he was going to get a conviction at any cost,'' said Drane's attorney, Anthony Boskovich.

Braker denied that he ever threatened or harassed Drane. He did say he sought a court order forcing her to appear at the hearings because she had failed to respond to several subpoenas.

As a result, the judge issued a warrant for her arrest and had her jailed in July 1997.

``If we didn't do anything, the case would have been dismissed, and he would have gotten out, beat her again and possibly killed her,'' Braker said.

Drane subsequently appeared in court but refused to testify, invoking Fifth Amendment rights against self-incrimination, and Municipal Judge Nazario Gonzales ordered her released.

But Drane was jailed again for more than a week in late October and early November 1997 after she tore up another subpoena to appear in court.

Drane was released in November after her husband, Theodore Drane, pleaded guilty to felony domestic violence. He was sentenced to six years in prison.

Braker said that in 90 percent of domestic-violence cases, the victim recants.

``If we drop a case every time a victim recants, we wouldn't be prosecuting very many domestic-violence cases,'' he said.

But Boskovich said he considers the prosecution's approach extreme and that prosecutors should listen to victims, too, instead of simply substituting their own judgment.

``What's needed is a little bit of balance,'' Boskovich said.

Prosecutors, however, say they plan to hold firm in their approach to domestic violence. ``It's better to be sued than to have someone killed,'' Braker said.

Drane's lawsuit also seeks unspecified damages against the county's department of correction, alleging it refused her repeated requests to be taken before a judge when she was jailed.

Contact Sandra Gonzales at sgonzales@sjmercury.com or (408) 295-3983.


©1999 Mercury Center.