It must be special to be a victim, for that’s what everybody wants to call themselves.  Victim.  We all feel sorry for the victim.  So sorry, in fact, that our eyes water and minds grow fuzzy with empathy.  And that’s how reason becomes twisted to reach the rationale of the victims rights advocates.

Lawprof Paul Cassell has posted at Volokh Conspiracy about his latest article arguing for broad construction of the “right” to mandamus appeal under the CVRA. 

There is a clear “circuit split” among the various circuits as to whether crime victims are entitled to ordinary appellate review in the appellate courts or merely “clear and indisputable error” review that applies in the setting of mandamus petitions.  I argue the crime victims should receive the same sort review as other litigants. 

The CVRA’s appellate review provision appeared to provide crime victims the same sort of appellate protections as all other litigants – as several courts of appeals have held in reviewing crime victims’ petitions. Unfortunately, in a recent decision the Tenth Circuit (In re Antrobus) parted company with those other circuits and eviscerated the appellate protections promised to crime victims. In In re Antrobus, the Tenth Circuit rejected carefully reasoned decisions from the Second and Ninth Circuits and held that crime victims could only obtain appellate relief if they show that the district court had made a “clear and indisputable” error. This Article critiques the Tenth Circuit’s Antrobus decision, arguing that the Second and Ninth Circuits (among other circuits) got it right and the Tenth Circuit simply got it wrong.

If you’re like me, you spewed coffee all over your keyboard when you read Judge Cassell’s words.  Crime victims should receive the same sort of review as other litigants?  You bet.  Absolutely.  Let them have exactly the same sort of review as defendants in criminal cases.  Nothing. 

It’s not bad enough that the victims rights crowd uses whiny-worded arguments in combination with muddle-minded rhetoric to fundamentally alter the nature of criminal versus civil authority, so that their victims can enjoy the power of the government to vindicate their private, personal interests.  It’s not bad enough that they want to veto the prosecutor, trump the judge, and bootstrap the rights designed to protect a defendant into their arsenal of personal revenge.  No, that’s not enough for them.

Crime victims now want a power that has been denied the defendant, that presumptively innocent person for whom the Constitution’s bill of rights was intended, and leap frog their way to the top of the appellate docket.

The defendant gets a god-awful ruling, absurd and ridiculous, harmful and destructive, wrong in every respect?  Tough nuggies.  There’s not a thing to be done about it until after the prison door slams shut and the defendant gets to see how good he looks in an orange jumpsuit.  And then, of course, all the benefits of presumption shift to the government, so that the appeal begins from the point of view that he’s guilty as sin, and has to leap tall buildings to get even past the most obvious of errors.

But not the Victim.  While a defendant has no right to an interlocutory appeal, victims do.  While the defendant can’t do anything to prevent proceeding to trial in the face of a major Brady denial, discovery failure, massively wrong suppression decision, the victim can tie the case up at will when the prosecutor hasn’t been sufficiently loving, honoring the victim’s every whim or whine. 

The reason for this distinction is obvious.  Defendants are evil and unworthy.  Victims are wonderful and sympathetic.  So what if the defendant is as yet presumed innocent, no crime has as yet been proven and, by definition, there cannot be a victim without a crime.  We can happily blink and make every conceptual foundation of criminal law magically disappear, so that our victims will feel warm and fuzzy.

The gist of Judge Cassell’s issue is that the 10th Circuit has held that purported victims must show “clear and indisputable error” to obtain reversal of a district court decision.  Some district courts, oddly enough, don’t have enough room in the well for that third table, especially since it’s required to be bigger and fancier than the other two.  Such outrageous treatment of victims.  Appeal! Appeal immediately!

The argument would fall into the category of silly, perhaps borderline greedy, but for the fact that Judge Cassell tries to sell it as if this is how everybody else gets to play ball at the Circuit; “the same sort of appellate protections as all other litigants.”  All?  Judge Cassell knows better.  Judge Cassell knows well that this isn’t the sort of appellate protection received by one very large, one very discrete, one very despised group of litigants.

If Paul Cassell wants victims to enjoy the same protections as “all”, then let him start with the “all” for whom the Constitution’s protections were intended.  A defendant can’t appeal at all until the case is over and he’s suffering the consequences of error.  Until that changes, the argument to expand appellate protections for victims. like “all” other litigants, fails miserably.