Recently in Victims' Rights Category

Victims of crime and witnesses who have testified against the perpetrators often wish to be notified when the perpetrator is going to be released or is going to be considered for parole.  The VINELink website provides links to register for these notifications in most states.

The always provocative Lester Jackson has this article on prosecuting people for defending themselves.  He begins with an interesting analogy to the 1970 Occupational Safety and Health Act and an assertion that the "elite anti-victim mentality" seems to lead some people to believe that criminals deserve a safe workplace in their chosen occupation.

I won't comment on the specific cases he discusses, but it certainly is true that the right of self-defense is too narrowly construed in many jurisdictions, and too many people are prosecuted for actions that should be legal or even praiseworthy.  Here CJLF sometimes splits from our usual allies on the prosecution side of the aisle.  We have filed only three briefs supporting defendants since I have been legal director, and two of them were in allegedly excessive use of force cases.

Also preposterous are civil suits by burglars against property owners for injuries suffered while attempting a felony.  Back when we had more sense, criminal entry onto the property was an absolute defense to such a suit.  Now the insurance company settles.

Jennifer Hopper, survivor of the notorious South Park attack in Seattle in 2009, has this story in the Stranger, titled "I Would Like You to Know My Name."  For background on the crime, see this story by Jennifer Sullivan in the Seattle Times a few months after the crime and this story July 1 this year by Levi Pulkkinen in the Seattle Post-Intelligencer on the verdict.  Thanks to "notablogger" for the tip.

The WSJ's "Notable and Quotable" feature quotes Blogger Brian Micklethwait writing at Samizdata.net, Aug. 9:

One of the more depressing things about these [London] riots is the way that the only thing that the Police can think of to say to us non-looters and non-arsonists is: "Don't join in" and "Let us handle it." If the bad guys start to torch your house, let them get on with it. If they attack your next door neighbour, don't join in on his side. Run away. Let the barbarians occupy and trash whatever territory they pick on and steal or destroy whatever property they want to.

There was a fascinating impromptu TV interview with some young citizens of Clapham last night, not "experts," just regular citizens, one of whom stated the opposite policy. Law abiding persons should get out of their houses, he said, en masse, and be ready to defend them.

The trouble with "letting the Police do their job" is that in the precise spot in which you happen to live, or used to live, their job probably won't start, if it ever does start, for about a week. In the meantime, letting the Police do their job means letting the damn looters and arsonists do their job, without anyone laying a finger on them, laying a finger on them being illegal. This is a doomed policy. If most people are compelled by law to be only neutral bystanders in a war between themselves and barbarism, barbarism wins. The right to, at the very least, forceful self defence must now be insisted upon.

I'm not sure why anyone pays good money for the Unabomber's stuff.  Anyway, the auction proceeds were applied to the unsatisfiable restitution order, and checks for $225,000 were mailed to victims of his crimes.  Sam Stanton has this report for the Sacramento Bee.

The above-titled National Institute of Justice special report by Nancy Ritter confronts the dilemma of untested sexual assault kits (SAKs).  The issue has garnered increasing attention lately, as police departments around the country report their discoveries of tens of thousands of untested SAKs, including Los Angeles (10,000), Dallas (12,000), and Detroit (10,500).

The entire report can be viewed from the NIJ's website, but here are a few of the interesting issues discussed.

• Outsourcing - Some law enforcement agencies, including Los Angeles, opt to outsource some testing to private labs because of backlogs and staffing difficulties.  While alleviating some pressure on public labs, outsourcing presents additional costs and burdens.  Public labs must conduct a technical or "peer" review of analyses performed in private labs, which has led to what some refer to as a "new backlog."  Also, under the Supreme Court's decision in Melendez-Diaz v. Massachusetts, jurisdictions must pay for private lab scientists to testify in court in criminal cases if the testing is outsourced.      
  

• Victim Notification - Most agree that victims deserve to know if and when their untested SAKs are discovered, tested, or matched to a suspect, but the best procedure is debated.  One city mails an official-looking letter asking the victim to call regarding an unspecified matter.  Another city composes a team of four, including a victim advocate and former detective, to conduct in-person notifications.  In any event, the situation must be handled delicately.  Some victims may find peace upon learning their attacker from 20 years ago has been identified, but others may have moved on completely and are unwilling to revisit the crime. 
  

• Statute of Limitations - The statutes of limitation for sexual assault charges have changed over the years, including recent changes in some jurisdictions that stop the clock if a DNA profile is obtained from the SAK.  But what about the thousands of untested SAKs that are discovered where the statute of limitations has clearly expired?  Testing of these SAKs may initially appear to be of lower priority, but victims' advocates argue testing may link the attacker to other unsolved crimes and provide closure to victims.
  

The California Legislature is presently considering a pernicious piece of legislation to enable 16- and 17-year-old murderers to have their life-without-parole sentences modified to life-with-parole.  Doug Krikorian of the Long Beach Press-Telegram has this story on Tom Shadden, whose son was murdered by a couple of teenage thugs, and his opposition to the bill.

The ex-Governator has apologized to the parents of Luis Santos for the "last minute nature" of his decision to commute the sentence of one of Luis's killers, who just by the wildest of coincidences happens to be the son of the former Speaker of the Assembly.  He does not apologize for the commutation itself.

Mr. Santos is also considering filing a lawsuit.  KNX in LA has this story and interview.  Such a suit would have nearly zero chance of success.  California's Victims Bill of Rights does contain a right to notice for victims of crime and the families of deceased victims.  However, executive clemency is not mentioned, and the courts are not about to read a restriction on the clemency power where it is not expressed.

Washington voters amended the bail section of the state constitution by a landslide 85-15:

All persons charged with crime shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great. Bail may be denied for offenses punishable by the possibility of life in prison upon a showing by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons, subject to such limitations as shall be determined by the legislature.

Generally, witnesses are not allowed to attend trials in which they are going to testify.  The theory is that witnesses should not hear the other witnesses and tailor their own testimony accordingly.  The rationale a bit of a stretch, though, because by the time of the trial the witnesses most interested in the case already know the gist of the evidence.

Can the defendant be excluded if he is going to testify?  Of course not.  Everyone knows that whatever value there may be in the "rule against witnesses" it does not override the more important value of allowing the defendant to attend the trial.

Can the victim (or, in a murder case, the victim's family) be excluded?  Surprisingly, the answer has historically been yes.  While the interest of the victims in attending the trial may not be precisely the same as the defendant's, it is still a strong interest and should generally override the relatively weak policies behind the rule against witnesses.  Yet victims of crime have had to fight for the right to attend trials.  In federal court, Congress has provided such a right, although a qualified one:

18 U.S.C. §3771:

(a) Rights of Crime Victims.-- A crime victim has the following rights:
...
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

Today, AP reports, "A judge has ruled that Chandra Levy's mother will be allowed to attend the entire trial of the man accused of killing the federal intern, even though Susan Levy will likely be called as a witness."

Peggy Noonan has this column in the WSJ on the Shirley Sherrod kerfuffle. The whole article is well worth reading, but the portion that is "on topic" for this blog relates to the murder of Ms. Sherrod's father in 1965.

And this is what she said. Forty-five years before, to the day, her father's funeral was held. He had been murdered by a white man in Baker County, Ga. These were still the bad old days; lynchings had taken place in her lifetime. The man who murdered her father "was never punished," even though there were three eyewitnesses. The grand jury refused to indict.

*                                *                              *

She was 17 when her father was killed, in 1965. After that, one night, a cross was burned on their lawn. Her mother had a gun, and black men from throughout the county came and surrounded the white men who surrounded the house. Shirley was terrified and hid in a back room, praying. That night something changed. "I made the decision that I would stay and work."

I've mentioned it here before, but it bears repeating. The most widespread abuses of prosecutorial authority in the "bad old days" were not wrongful prosecutions of the innocent on the basis of race but refusal to prosecute the guilty on the basis of race. Good thing that doesn't happen in America today, right?

The second paragraph illustrates the importance of the right of self-defense and the right to bear arms for the purpose of self-defense. The government cannot protect us all the time, even when it wants to. Much of the legal fight lately has been on the bearing-arms component, but we should not overlook the underlying right of self-defense. Too many people are still being sued or even prosecuted for using supposedly "excessive" force against the perpetrators of crime.

No big surprise, the right to bear arms recognized as an individual right in District of Columbia v. Heller is "incorporated" in the Fourteenth Amendment and made applicable to the states. The decision in McDonald v. City of Chicago is 5-4 on the practical outcome, divided along the predictable conservative-liberal lines.

On the theoretical question of whether it is the Due Process Clause or the Privileges or Immunities Clause that does the incorporation, Justice Alito's plurality opinion sticks with the traditional view of the Court's Warren/Burger-era precedents. Justice Thomas alone would go with the Privileges or Immunities approach. That approach is a better fit to the language and history of the Fourteenth Amendment but contrary to a lot of precedent. Justice Scalia goes along with Substantive Due Process based on the weight of precedent, but he grumbles a bit. He also crosses swords with Justice Stevens's dissent on fundamental issues of constitutional interpretation.

The majority portion of Justice Alito's opinion reiterates some good language from Heller on the importance of the right of self-defense.  (Use of force by the victim of crime, BTW, is the one issue of substantive criminal law where CJLF has filed briefs in support of defendants.)

The opinions and syllabus run 214 pages, so I expect to have more to say when I have a chance to read them in depth.

Claire Bushey has this article in Slate, titled "Why Don't More Women Sue Their Rapists?" The subtitle is "Because the Supreme Court took away part of the Violence Against Women Act." But reality, as usual, is more complicated than that.

In the federal Violence Against Women Act, Congress created a federal civil action in 42 U.S.C. §13981, and it amended the civil rights attorneys' fee statute, 42 U.S.C. §1988, to include those actions among those for which a prevailing plaintiff may be awarded attorneys' fees as well as damages. In United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court decided that Congress had stretched its powers too far, and these matters must be left to the states.

States, of course, do have tort suits for battery, which certainly includes rape. They do not, generally, have a provision for attorneys' fee awards for prevailing plaintiffs. But is that the main obstacle for rape victims who want to sue rapists? No. The main problem remains that most rapists simply don't have enough money to be worth suing. "You can't get blood out of a turnip," as the saying goes. An attorneys' fee award is a scrap of paper if the defendant has nothing to attach.

State legislatures can and should provide for attorneys' fee award for victims of violent crime who recover money judgments against the perpetrators. But don't expect miracles. You still can't get blood out of a turnip.

The Supreme Court dismissed as improvidently granted the case of Robertson v. United States ex rel. Watson, the case on the victim being able to prosecute criminally a violation of a domestic violence restraining order. When the case first came up, CJLF decided not to file an amicus brief because quirks in the case led us to believe it would not be as significant as it first appeared. Apparently the Court belatedly came to the same conclusion.

Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Sotomayor, dissent. I do not expect to see that lineup very often.

Update: More on this case here.

When a court imposes a domestic violence restraining order and the respondent violates it, who is the prosecutor for the resulting criminal contempt? The District of Columbia Court of Appeals* held that under the pertinent section of the D.C. Code, "the criminal contempt proceeding against Mr. Robertson under the District's intrafamily offense statute was prosecuted in the name of Ms. Watson, not in the name of the United States or the District of Columbia." The victim can pursue the prosecution despite a plea agreement by the prosecutor. Today, the U.S. Supreme Court agreed to review that ruling in Robertson v. US ex rel. Watson, No. 08-6261.

The high court also took up a case on employee privacy in text messages where the employer buys the pager, pays for the service, and tells the employee the messages are not private, but a supervisor says personal messages are allowed. City of Ontario v. Quon, No. 08-1332. (Seems like an easy case to me, so of course the Ninth went the other way.) They also took up a deportation-for-crime case, Carachuri-Rosendo v. Holder, No. 09-60.