This past week, the W.R. Grace Company went on trial in federal court in Missoula, Montana for environmental crimes, particularly mining vermiculite and releasing asbestos into the environs, in violation of the Clean Air Act.  By doing this, Grace is alleged to have “endangered” the local residents. 

Naturally, this means that Paul Cassell has wound up the victim machinery and sought to exercise the rights of some of the locally endangered under the Crime Victims Rights Act.  There’s a drawback, however.  No one has actually been harmed.  Endangered, perhaps, but not harmed.  But little details like this can’t keep a good victim down.

District Court Judge Donald W. Molloy rejected the “victims’ ” attempts to inject themselves into the trial, holding that the CVRA, which defines a crime victim as “a person directly and proximately harmed,” does not apply. 

This interpretation leads to the conclusion that because victims of the federal offenses alleged are not necessarily harmed, they are not necessarily victims under the Act, which are by definition person directly and proximately harmed.

This brought a quick writ of mandamus to the 9th Circuit.  Cassell argued:

First, the Superseding Indictment alleges that the Parkers have been placed in “imminent danger of death or serious bodily injury.” Being placed in grave danger is, ipso facto, a harm sufficient to trigger the protections of the CVRA. Any other conclusion would mean that there would be no “victims” of a whole host of federal offenses that involve threat of injury rather than actual physical injury, including not only the most serious environmental crimes but other federal offenses such as attempted murder, drive-by shooting, assault, child endangerment, and mailing of threatening communications. These offenses are not “victimless” crimes because they create fear and other emotional injuries. The Parkers have been harmed by the defendants’ crimes because of the obvious psychic harm stemming from being placed in the shadow of imminent death and serious bodily injury.

In other words, if there is a crime, there must be a victim, as there can be no crime, “ipso facto,” without them.  In the absence of physical harm, “psychic harm” will do. 

What does this mean to the victims?  It means the right to be present throughout the trial, to have input into the prosecution’s strategy and choices and ultimately, the right to compensation and restitution.  How can there be a victim without a cash payout at the end?  That would be unAmerican.

As of yesterday, the 9th Circuits writs have been fully briefed and ready for determination.  The defense challenge to victimhood presents a compelling dilemma:  How is one a victim of a crime before a crime is found to have been committed?  What are the bases for victimhood outside the allegations of the indictment?

This case, however, is anything but run-of-the-mill, and it perfectly illustrates the dangers of departing from the hornbook rule that the CVRA’s application to pre-conviction proceedings must be determined from the factual allegations in the indictment. That is so in part because the freestanding, postindictment allegations of harm made by Petitioners depend on complex scientific and medical judgments that are strongly disputed by Defendants—who will at trial vigorously challenge the Government’s assertion that their alleged conduct endangered any alleged victim of the charges at issue in this case. But it is especially so because the indictment utterly fails to specify both the particular conduct upon which its broadly framed charges are based and the particular individuals against whom the alleged offenses were committed, and because the statute of limitations sharply circumscribes the extent to which the indictment’s few particulars support chargeable criminal offenses in the first place.

Beyond the mere claims of victimhood, the defense contends that the “trial within a trial,” meaning the issues and allegations raised by the “victims” apart from the government’s indictment, have no place within the criminal prosecution.  This presents yet another problem with the CVRA, empowering victims to put the defense in the position of defending a collateral criminal attack apart from the prosecution itself.  But then, if the victims deserve to have this cornucopia of rights apart from the government, they have to be vindicated somewhere or they’re just illusory. 

This leaves the defense exposed to two separate prosecutions, the one mounted by the government and the one presented by the self-proclaimed victims, for whom no constraints exist at all.  The victims can throw everything they’ve got against the wall to see if anything sticks, while the defense is busy defending against the United States of America.

In a curious move, Judge Molloy has responded to the writ of mandamus as well, something that rarely happens.

I am absolutely convinced my pretrial ruling, based on the issues and complexity of the case, was correct. . . . In light of the testimony of the eight witnesses who have testified I have no doubt that if any of the witnesses is allowed to sit in the courtroom to listen before testifying, it will significantly impact the ability of any of all of the defendants to cross examine witnesses to point out lack of memory, bias, confusion, and any other matter inherent to the notion that cross examination and confrontation are the crucible in which the truth must be tested.

One of the most odious aspects of the CVRA is that it undermines the basic rules of fairness at trial, allowing trial witnesses to sit through the testimony of other witnesses before taking the stand.  But then, who cares about the integrity of the trial process when there are victims’ rights to vindicate?  Thankfully, Judge Molloy seems to care that the witnesses against W.R.Grace don’t get a free pass on tailoring their testimony in order to conform it to make sure that Grace gets crucified.  Whether Grace deserves to be crucified or not isn’t the point; They still get a fair trial.

Step by step, victims’ rights advocates like Paul Cassell are pushing the frontier at every opportunity, manufacturing victims where none exist and extending victimhood beyond any rationale basis.  For most of us, this has yet to present a real problem, as it hasn’t interfered with our cases and no one has moved that third table into the well of our courtroom.  But as legal entropy allows victimhood to expand, and as victims come to recognize just how much they can screw with the process, and screw up the process, it will come soon to a courtroom near you. 

Need more proof that it’s a very real problem?  How about Alan Hesketh, the former Pfizer VP who was ordered to pay $200,000 in restitution to the victim of child pornography based upon his conviction for possessing it.  Not making it.  Not distributing it, but merely possesing it.

Senior U.S. District Judge Warren W. Eginton said his ruling was the first in a criminal case in which someone convicted of possessing illegal images — but not creating them — is required to pay restitution.

“We’re dealing with a frontier here,” Eginton said, but he said judges have discretion with criminal restitution orders.

The rationale was purely rhetorical, that the victim suffered “exploitation” as a result of Hesketh’s conduct.  As revolting as Hesketh may be for his conduct, and as much as we may want to punish him for it, one thing is abundantly clear: He was not the cause of any actual harm to the “victim”.

Once harm is divorced from the concept of victim, there’s no stopping them.  Hey, I’m suffering deep psychic harm from environmental dangers too.  Where’s my seat in the well and when do I get my restitution check?

Update:  The 9th Circuit has spoken, and the victims are victims.  Apparently, if there is a crime, there must be victims. 

After review of the parties’ briefs and the record, the petitions for writ of mandamus are granted. The district court erred in denying petitioners’ motions to accord rights to victim-witnesses based on its finding that the 34 victim-witnesses identified by the United States as prospective victims do not meet the meaning of “crime victim” set forth in the Crime Victims’ Rights Act, 18 U.S.C. § 3771(b)(2)(D), and therefore are excluded from court proceedings.

Shut off the lights on the way out.