Reading this post by Doug Berman, it dawned on me that Paul Cassell hasn’t posted anything at Volokh Conspiracy in a while.  Given his position as a leading advocate for the rights of crime victims since his quitting the federal bench, it’s left me with the impression that all is quiet on the CVRA extremist front.  I’ve had occasion to take issue with Judge Cassell’s positions.

Doug’s post has shaken me out of my complacency, and reminded me that there are people doing dastardly deeds even while Paul Cassell sleeps.  More particularly, in Pennsylvania, producing this decision out of the Third Circuit.

Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines.  Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing.

The CVRA entitles a crime victim, “or a crime victim’s lawful representative,” to be heard.  Zackey, the victim of Donahue’s credit card fraud that destroyed Zackey’s credit and caused enormous problems in his life, went out and hired a lawyer to represent him.  Way to go, Zackey!  The lawyer, Jessica Richman, sought to do what lawyers naturally seek to do, enter an appearance and speak.

Zackey sought full restitution, including Ms. Richman’s legal fees, as well as an upward departure at Donahue’s sentence.  The government was right there with him, agreeing to pursue his demands.  But that left Richman in the well, all dressed up but nowhere to go.  Not good enough, Zackey said.

The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.”  Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.”  

The Circuit denied Zackey’s writ of mandamus to force the district court to let Richman do her voodoo, holding that since the government was already on board with the program, the district court didn’t abuse its discretion.  But then, left open are a few rather troubling aspects.

What if the government didn’t agree to pursue everything Zackey demanded?  Notably, the government agreed, in seeking restitution, to include Zackey’s legal fees.  Consider that proposition, when tendering a bill for services rendered in the amount of a gazillion dollars, that its payment becomes a part of the restitution order at sentence.  That doesn’t mean it gets paid, since not every defendant has the wherewithal to pay the restitution, but it’s sure a great place to go for the big bucks.  After all, the only person affected is the defendant, and it’s not like anybody gives a hoot about him.

This insinuation of the right to counsel of victims was part of the message sent to Berman by his reader who forwarded the decision.

The helpful reader who forward this ruling to me refers to Zackey as a “victim Gideon case.”  In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom. 

But Doug spells out why the analogy ultimately fails.

But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.

Still, the issue of reimbursement of legal fees by the defendant as part of restitution remains unaddressed.  While not quite the same, it’s also not so dissimilar as to ease the tension of the comparison. 

It strikes me as not much of a stretch that in the next round of political pandering to victims, the issue of Gideon for victims, and paid for by defendants, is placed on the table.  Forget the irony that the funding is inadequate to fulfill Gideon for defendants, since nobody loves defendants.  Victims, on the other hand, are victims, and there’s nothing we can’t do to ease their pain.

Can somebody please check on Paul Cassell and make sure he’s feeling well?