The “Third” Lawyer’s Dilemma

It’s hard to explain why the proliferation of Marsy’s Laws are specifically awful. Sure, there’s the Ted Frank’s Rule, but since individual states tweak the laws to some greater or lesser extent, the specifics are hard to pin down. Generically, they’re a “bill of rights” for victims, which sounds lovely since everyone loves a “bill of rights” and everyone feels empathy for “victims.” And that’s really all that’s needed to sell this hot mess to the voters.

Voters in six states — Florida, Georgia, Kentucky, Oklahoma, Nevada, and North Carolina — all approved amendments to their state constitutions expanding the rights of crime victims. Known as “Marsy’s Laws,” these amendments provide an enforceable bill of rights for crime victims in the criminal justice process, guaranteeing such things as rights to notice of court hearings, to attend court hearings, and to be heard at particular points in the process. These amendments help to set the stage for a future effort to amend the U.S. Constitution to protect victims rights there as well.

Note that this victims’ bill of rights isn’t merely worming its way into laws, but into constitutional amendments. Bad laws are hard to fix, but far easier than constitutional amendments. And even as victims’ rights propagandist Paul Cassell expresses them between sobs, they don’t seem like the terrible things I suggest. After all, what’s wrong with keeping victims apprised of proceedings? It seems like basic courtesy, right?

And if it was basic courtesy, that would be fine. But it’s not. And the remedy, even if it was, isn’t a stern tongue lashing of a discourteous prosecutor, maybe even discharge from his post if was discourteous enough. The problem, you see, is that a right has been created for the “victim,” which is curious since there is no victim until there’s a crime, and there is no crime until a jury says there is.

But Marsy’s Laws tend to make the victim a recognized entity in advance of such a finding, and basically on the basis of the person claiming victimhood being all that’s required. And once someone decides they’re the victim, this is what (at least per the Nevada flavor of Marsy’s Law) they get:

Each person who is the victim of a crime is entitled to the following rights:

(a) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment and abuse, throughout the criminal or juvenile justice process.

(b) To be reasonably protected from the defendant and persons acting on behalf of the defendant.

(c) To have the safety of the victim and the victim’s family considered as a factor in fixing the amount of bail and release conditions for the defendant.

(d) To prevent the disclosure of confidential information or records to the defendant which could be used to locate or harass the victim or the victim’s family.

(e) To refuse an interview or deposition request, unless under court order, and to set reasonable conditions on the conduct of any such interview to which the victim consents.

(f) To reasonably confer with the prosecuting agency, upon request, regarding the case.

(g) To reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other postconviction release proceedings, and to be present at all such proceedings.

(h) To be reasonably heard, upon request, at any public proceeding, including any delinquency proceeding, in any court involving release or sentencing, and at any parole proceeding.

(i) To the timely disposition of the case following the arrest of the defendant.

(j) To provide information to any public officer or employee conducting a presentence investigation concerning the impact of the offense on the victim and the victim’s family and any sentencing recommendations before the sentencing of the defendant.

(k) To be informed, upon request, of the conviction, sentence, place and time of incarceration, or other disposition of the defendant, the scheduled release date of the defendant and the release of or the escape by the defendant from custody.

(l) To full and timely restitution.

(m) To the prompt return of legal property when no longer needed as evidence.

These aren’t just nice things to do to be sensitive and empathetic to the victims, but each establishes a right, and every right must have a remedy for when it’s violated. Despite the profligate use of the word “reasonable,” one of the most dreaded words in law, many of these “rights” are in direct conflict with some other guy’s rights in the well. Can you guess who that might be?

As bad as the legal system might be now, after striving for a couple hundred years to get it right, this throws a blind monkey wrench into the frail working of the legal Rube Goldberg machine. What if a defendant is not yet prepared for trial because he’s engaged in difficult investigations of witnesses, but the victim feels that she’s waited long enough for that scoundrel to get his punishment:

(i) To the timely disposition of the case following the arrest of the defendant.

Does the defendant get an adjournment or does the judge call for jurors? What constitutes “timely”? When defense lawyer and prosecutor agree that more time is needed, but the “victim” doesn’t, who wins? And that’s just one question. But what about the victim’s right to confidentiality as opposed to a defendant’s right to discovery, to Brady, to Giglio? A victim’s lawyer in Connecticut found out the hard way that this misbegotten bomb thrown into the system creates difficult conflicts.

An attorney who would not disclose a private conversation with a client — an alleged victim of a sexual assault — was held in contempt of court last week by a Cook County judge and ordered taken into custody.

Danielle Johnson was there to represent the “victim.” Judge Carol Howard ordered her to reveal information obtained under privilege about the “victim’s” mental health treatment following an assault. The defendant was certainly entitled to this, and Johnson was absolutely right to honor the attorney/client privilege, though the general rule is comply with an order and grieve later. But who can fault her for taking the hit on behalf of her client? It was honorable defiance, since the disclosure can never be undone.

But what of the defendant’s rights? It’s not Johnson’s concern, as she represented the victim. The deprivation of the defendant’s rights was the price of affording rights to someone who has no business being in the well at all, but now that she’s there, and represented, what’s a victim’s lawyer to do but zealously represent her client, even if it means burning the defendant? So what if she’s a third wheel in the well? She did her job, even if her job meant undermining the process.

The criminal “justice” system was crafted to pit the government against the defendant for a crime against society, not any individual person. At trial, the victim was a witness to the offense, not a party in the litigation. There is no tenable way to change this unless the rights afforded the victim come at the expense of the defendant. Even the government to guide its prosecution according to its sound discretion and duty to “do justice.”

Selling this fundamental shift in the criminal justice system to voters isn’t hard. What it will do to take a bad system and make it completely unworkable is subsumed in the current fetishization of empathy. If you thought things were bad before, they’re going to prove disastrous under Marsy’s Laws, and, as constitutional amendments, they’re going to be extremely hard to undo the damage.

30 thoughts on “The “Third” Lawyer’s Dilemma

  1. REvers

    This stuff is now a part of the Oklahoma Constitution, as of last Tuesday. Yay, voters! However, I am happy to report that the prosecutors I deal with on a daily basis are appalled.

    I do expect to have some fun at some point, too.

    1. SHG Post author

      This cuts deep into prosecutorial prerogative as well as defendant’s rights. The prosecutor who has to determine the strength of the case now has to deal with the victim (and/or victim’s lawyer) demanding trial or life plus cancer because of how horrible the trauma is. Kinda hard for a prosecutor to do her job with a crazy person having veto power over her.

      1. B. McLeod

        Prosecutors will try cases where they otherwise would have entertained the plea offer. In some of them, they will lose, for the very reasons they would have considered the plea offer. It has been a thing now around the country for 20 years. When the defendant is acquitted, the “victim” doesn’t get the desired pound of flesh, and “advocates” and “activists” chalk the case up to the “flaws” in our system that fail to guarantee conviction of every person accused by a “brave victim.” It just spirals on down, and sadly, fails to bring home to the idiots who spawned this why they should let prosecutors handle the cases according to their own judgment.

  2. Beth Clarkson

    “there is no victim until there’s a crime, and there is no crime until a jury says there is.” I don’t understand this. It seems to me there is a crime as soon as it’s reported. The defendant must be considered innocent until the jury concludes he/she is guilty, but there really isn’t any doubt about the crime/victim existing. The victim has suffered theft, assault, etc. unless you are assuming the person reporting the crime is lying about their experience prior to the jury concluding they are not.

    1. SHG Post author

      This is one of those things that non-lawyer struggle to understand: there are two issues at trial, did a crime occur and was the defendant the person who committed the crime. In many instances, there isn’t any sincere question that a crime occurred, and so we regularly take that piece for granted. But for statutory and constitutional purposes, it can’t be assumed or taken for granted as it eliminates one of the basic burdens on the prosecution.

      1. Hunting Guy

        This Is one of those times where terms of art mean different things to different disciplines.

        Thanks for making me smarter.

        1. Fubar

          Don’t know if it will make anyone smarter, but there was a gothic rock band named for the term of art that cannot merely be assumed or taken for granted.

      2. B. McLeod

        Hence, the absence of fit with presumptions of “victim” status, right? Hard to see how people don’t get that.

  3. wilbur

    “to be free from intimidation, harassment and abuse”

    Does this include making them cry during cross-examination?

  4. Guitardave

    In the two-birds-one stone dept… it will at least serve as an jobs program for all those woke out of work Reddit lawyers.

    1. SHG Post author

      They would be thrilled to get indigent defense wages to represent the victims, if only that money wasn’t being diverted at the moment to represent undocumented immigrants. So many sticky fingers out there.

  5. Joe

    What they say: “This is good, now victims can get timely restitution.”

    What they mean: “This is good, now insurers can get their share.”

    What happens: “Your honor… why is there a third-party collection agency on the restitution order? Oh, crap, they’re a victim under the statute.”

    1. SHG Post author

      Under most versions of Marsy’s Law, everybody is a victim (cops included, as least if you ask cops) except the defendant.

  6. Rich

    You perfectly described it.
    The Medical Quality Assurance Commission of Washington State and the Revised Code of Washington on which it derives its authority.

  7. Christopher Dove

    California went so far as to amend its constitution to include Marsy’s Law, first in 1982 and later in ‘08. It’s made our current bail kerfuffle into a full-blown quagmire, turned some prosecutors into victim’s rights attorneys, and judges into victims’ rights protectors (as opposed to “independent” arbiters of justice). Oddly enough, that same concern tends to disappear when my client also happens to be the victim in another case.

    1. SHG Post author

      CA is the experiment for Chesterton’s Fence. Amazing how a state that purports to be so woke can do so much pervasive harm in the cause of “justice.”

  8. Gregory Smith

    It’s easy enough to establish a “right” through legislation, but is there any real recourse for a “victim” who was denied one of those ennumerated rights? I’m assuming they would need to not only sue the prosecutor, but overcome prosecutorial immunity.

    1. SHG Post author

      It has nothing to do with suing the prosecutor, but revisiting the prosecution as necessary to afford the victim her rights.

      1. Gregory Smith

        violations of some of these « rights » (e.g. « right » to « confer » with the prosecutor) can be cured at a later point in time if they are initially denied, but others cannot. If a « victim » misses a hearing because the prosecution failed to provide « reasonable notice » to the « victim », what recourse is available? Do these laws create any sort of mechanism other than attempting a nearly pointless lawsuit against a prosecutor ?

        1. SHG Post author

          As you were already told, nothing about this has anything to do with a lawsuit against a prosecutor. If you ask ten more times, the answer will be the same ten more times.

  9. Pingback: Victim’s-rights law shields cops’ names after civilian shootings | Overlawyered

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