At Slate, Mark Joseph Stern reached the only conclusion that any reasonable person could reach.
When a victim’s brother can single-handedly imperil the exoneration of a man whom prosecutors already set free, we have abandoned any pretense that an expansive conception of victims’ rights can coexist with a fair criminal legal system.
He’s talking about the Maryland appellate court’s vacatur of the nolle prosequi of Adnan Syad, the focus of the podcast “Serial,” It wasn’t the state that appealed, but the victim’s representative, her brother. The court held that the brother was given inadequate notice such that he was unable to be personally present in court, although he was present by Zoom. Apparently, Zoom is good enough for a defendant not to be prejudiced at trial, but not for a victim’s rep to be “present” for a hearing in which he has no right to be heard.
There are two problems here, however. The first is Stern’s inclusion of the word “expansive,” as if this were some extraordinary right above and beyond what victims or their representatives would otherwise be allowed. Indeed, Maryland hasn’t enacted the dreaded Marsay’s Law and provides only for the limited rights of notice and presence. There was nothing expansive about Maryland’s law.
The second is Stern’s calling the reasoning “absurd.” The outcome was, but the holding was nothing more than what the law required. The court isn’t to blame when its ruling gives effect to the law. The problem is that the law is absurd, but only if you recognize that criminal law is something between a defendant and the state. Once you introduce the victim into the mix, and provide for victim’s rights that are inherently in conflict with the rights of the defendant and the ability of the state to do its job, whether that’s to prosecute or dismiss, it’s doomed to end with absurd outcomes.
We hold that in the circumstance where, as here, a crime victim or victim’s representative conveys to the court a desire to attend a vacatur hearing in person, all other individuals involved in the case are permitted to attend in person, and there are no compelling reasons that require the victim to appear remotely, a court requiring the victim to attend the hearing remotely violates the victim’s right to attend the proceeding. Allowing a victim entitled to attend a court proceeding to attend in person, when the victim makes that request and all other persons involved in the hearing appear in person, is consistent with the constitutional requirement that victims be treated with dignity and respect.
And where, as here, the state has reached the conclusion that the defendant’s conviction should be vacated because the defendant did not commit the crime, who would argue that the victim’s representative should have any role at all against an innocent defendant? That would be Paul Cassell.
While the hearing court may permit the victim’s representative to speak at the vacatur hearing, as it did here albeit over Zoom, the court held that it’s discretionary and the victim’s rep has no right to do so. Cassell has a problem with that.
While the Appellate Court generally supported victims’ rights, one part of the decision held that that a victim does not have a right to be heard a vacatur hearing. This conclusion is difficult to square with the language of the Maryland Victims’ Rights Amendment, which gives crime victims the state constitutional right “to be heard at a criminal justice proceeding”—which a vacatur hearing would seem to be. But this part of the Appellate Court’s decision may have limited practical importance. The Appellate Court noted that while a victim may lack a “right to be heard, there are valid reasons to allow a victim that right in a vacatur hearing, and the court has discretion to permit a victim to address the court regarding the impact the court’s decision will have on the victim and/or the victim’s family.”
Cassell’s argument is grounded in the problem that arises when both the state and defense are on the same side of an issue at the hearing, such that there is no one to voice the arguments in opposition to what they jointly move.
The conclusion that a victim should be heard at a vacatur hearing where no one is defending the judgment of conviction is well supported by (for example) the U.S. Supreme Court’s practice of appointing an advocate to defend the judgment below when both parties decline to do so. For example, in 2000, Chief Justice Rehnquist appointed me to argue in defense of the Fourth Circuit’s decision that 18 U.S.C. section 3501 superseded the Miranda requirements, after the Clinton Administration Justice Department declined to defend the federal statute. In another case, the Supreme Court has explained that this approach permits it to “decide the case satisfied that the relevant issues have been fully aired.”
Should this apply when the position of the state before the court is that a defendant is innocent and his conviction should be vacated? It’s possible there is some collusion between the prosecution and defense where a state would concede innocent for false or unsavory reasons, and there would be no one to point this out to the judge, to make the arguments that the defendant is indeed guilty and his conviction should not be vacated except the victim. While that may not be the situation here, what about Jeffrey Epstein in Florida, for example? Just because Sayid’s innocence has huge public support doesn’t mean there can be different rules for people we like rather than despise.
Here, however, there will either be an effort at further appeal or a return to the hearing court, where the victim’s brother can be personally present to (hopefully) watch the exact same outcome happen in the flesh. The court stayed its ruling for 60 days, so that Sayid won’t be required to return to prison as this gets hashed out. To what end? None that will serve any useful purpose, but that’s the nature of giving victims rights, only to interfere in an adversary system between the prosecution and defense to create the pretense of empathy and gum up the works.