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The Value of Victim Impact Statements

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My friend Prof. Erin Sheley of the University of Calgary Law School has a forthcoming paper (in the Brooklyn Law Review) discussing a new lens on the value of victim impact statements.  VIS have long been debated in the law; defendants understandably want their victims muzzled, supposedly in the name of due process but actually in the name of hiding the destruction their behavior wreaks.  

The abstract of Erin's paper, noted at SSRN, states:

     
Victim impact statements (VIS) are long-disfavored among legal commentators for allegedly injecting unnecessary, negative emotion into sentencing at the expense of the defendant, with ambiguous informational benefits to the sentencing body. Most traditional arguments both for and against VIS turn on purely retributive or utilitarian grounds. This essay takes up the Stanford sexual assault victim's statement to propose an expressive framework for understanding the function of VIS, which resolves much of the theoretical confusion surrounding the traditional justifications. I show how the expressive goals of criminal punishment have long been distorted by the mediation of traditional news reporting. I then analyze the legal relevance of the particular criminological values expressed in the Stanford statement to show how unmediated victim narratives may counterbalance media distortion, particularly in the age of social media transmission. I conclude that the criminal justice system better serves its expressive function by formally incorporating VIS into sentencing.

Accountability

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Peter Holley reports for the Washington Post that "Day-care worker who raped toddlers on video actually a 'charming young lady,' lawyer says"...Really?  A charming young lady?  She videotaped herself sexually assaulting multiple babies and toddlers, then sent the footage to her convicted Tier II Sex Offender boyfriend.  Her boyfriend was on probation for pandering obscenity involving a minor in 2011.  Heather Koon pleaded guilty to four counts of rape, kidnapping, pandering obscenity involving a minor, plus other crimes involving illegal use of a minor in nudity-oriented material.  However, she pleaded not guilty to specifications labeling her a sexual violent predator.  That will be determined at a future hearing.  If so designated, she will receive a mandatory life sentence without parole.

Her attorney said:  "It's very unusual to have a female charged as a sexual predator - almost unheard of...Psychologists tend to think she's more along the lines of a battered woman.  She was being influenced by her boyfriend."

She met a guy, who happened to be a convicted sex offender on probation for offenses involving a minor.  Knowing this, she still chose to date him.  As a day-care worker working for a licensed day-care facility, she was trusted by parents to take care of their young children, not prey on them or sexually exploit them.  She made the choice to sexually assault those children at the day care facility.  She made the choice to videotape the acts.  And she made the choice to send the footage to another sex offender. She is not a "battered woman".  She is a woman who made very wrong choices.  I'm sure she is "charming", but so was Ted Bundy.  She raped children.  She involved herself with a convicted sex offender.  Like her boyfriend, she should also be held responsible for her bad choices.
An initiative to establish rights of victims of crime has qualified for the November ballot in Montana, reports Dustin Klemann of MTN News.

Here is the summary:

CI-116 would add a new section to the Montana Constitution establishing specific rights for crime victims. The rights enumerated include the right to participate in criminal and juvenile justice proceedings, to be notified of major developments in the criminal case, to be notified of changes to the offender's custodial status, to be present at court proceedings and provide input to the prosecutor before a plea agreement is finalized, and to be heard at plea or sentencing proceedings, or any process that may result in the offender's release. CI-116 guarantees crime victim's rights to restitution, privacy, to confer with the prosecuting attorney, and to be informed of their rights. CI-116 defines specific terms and requires no further action by the Legislature for implementation. CI- 116, if passed by the electorate, will become effective immediately. Fiscal impacts are expected for the Office of the Public Defender, Judicial Branch, Department of Corrections and local governments from passage of CI-116, but those costs could not be accurately determined at this time.
The full text is here.  Compare Article I, ยง28(b) of the California Constitution.

Trust your gut

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A 50+ year-old single man living alone with 12 young girls who are rarely seen outside and don't attend school is odd.  It's odd enough to raise the eyebrows of those in the neighborhood.  And it did raise eyebrows.  Several calls were made to law enforcement over a two-year period, but nothing was done because the community sense that "something was wrong" was not enough to justify a search warrant.  Not until the police were informed that a teenage girl living in the house had given birth twice while living there was a search warrant finally obtained. 

The police searched the home of Lee Kaplan and discovered the unimaginable - the Amish teen's parents, Daniel and Savilla Stoltzfus, had supposedly "gifted" her to Kaplan a few years earlier to thank him for saving them from "financial ruin."  The Stoltzfus' are also the suspected parents of nine of the other young girls and the grandparents of the two youngest girls (who are believed to be fathered by Kaplan) living in the home.  I don't know much about the Amish community, but I do know that giving your 14-year-old daughter to a 47- year-old man is not an acceptable form of repayment.

Amish or not, "gifting" your teen daughter to a much older man is mind-boggling.  Permitting your younger daughters to live in the house with them is inconceivable.  Allowing that man to impregnate your teenage daughter is abominable. 
Sometimes you wonder how the families of murder victims restrain themselves from just going after the murderers in the courtroom, as they sit only a few feet away.  It's not surprising that Van Terry, the father of 18-year-old Shirellda Terry, yielded to temptation and lunged that at evil-to-the-core Michael Madison.  The police stopped him before he could reach Madison.  Michael Miller has a report, with video, at the WaPo.

We tell people to trust the system to work and not take things into their own hands.  Too often the system betrays them.  Ohio owes it to Mr. Terry as well as the other families to review this case within a reasonable time and, if there is no reversible error, carry out the sentence.  The cases of Timothy McVeigh and the D.C. Sniper demonstrate that a full and fair review can be carried out in five or six years from sentence to execution.

That should be the standard.  Absent any substantial claim of actual "got the wrong guy" innocence (and most capital cases have none) every capital case should reach a final conclusion -- reversal or execution -- within six years.

Justice for Jacob

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A couple leaves their 1-year-old son, Jacob, with a family friend for a couple of hours while they go out on a date.  Upon their return, they find their family friend asleep on the couch and Jacob crying uncontrollably.  The next morning, the parents notice that Jacob has a black eye, scratches, bruises on his arm and back, plus a very large and visible hand-shaped bruise on the side of his face.  (How they didn't notice these injuries upon their return the night before is beyond me....)  Multiple doctors and a police detective tell the parents that the amount of force Jacob sustained could have killed him.  Several days later, the family "friend" admitted to grabbing and smacking Jacob across the face.

Another Hidden Cost of Crime

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Unfortunately, some people on the conservative side of the political aisle have jumped on the "let-em-out" bandwagon because they see that as a way to reduce government budgets.  Looking at costs to government alone, however, is not the correct way to measure costs of alternative courses of action to society as a whole.  When government fails in its fundamental obligation to protect people from crime, it imposes costs on the victims, a kind of "crime tax" that falls heavily, partly at random, but disproportionately on people of modest means.  Quantifying the cost of crime to victims is a tricky business in many ways, and one of the ways is that much of the cost is hidden.  Science Daily has this article on a hidden cost that has been overlooked to this point:

In a recent paper published in the Journal of Development Economics, researchers Professor Marco Manacorda (Queen Mary University of London) and Dr Martin Foureaux Koppensteiner (University of Leicester) focused on evidence from the exposure of day-to-day violence in Brazil by analysing the birth outcomes of children whose mothers were exposed to local violence, as measured by homicide rates in small Brazilian municipalities and the neighbourhoods of the city of Fortaleza.

The team estimated the effect of violence on birth outcomes by comparing mothers who were exposed to a homicide during pregnancy to otherwise similar mothers residing in the same area, who happened not to be exposed to homicides.

The study found that birthweight falls significantly among newborns exposed to a homicide during pregnancy and the number of children classified as being low birthweight increases -- and that the effects are concentrated on the first trimester of pregnancy, which is consistent with claims that stress-induced events matter most when occurring early in pregnancy.
A few post-settlement developments in the California lethal injection suit, Winchell & Alexander v. Beard, last noted here.

Yesterday, June 3, Judge Chang signed the stipulated judgment.  Applications to intervene in the case were set for hearing tomorrow, June 5.  The applicants were Mitchell Sims, the "slice of murder" killer sentenced to death in two states, represented at taxpayer expense by the Habeas Corpus Resource Center, and Michael Morales and Tiequon Cox, the men who murdered my clients' family members, represented by David Senior and, curiously, Jenner & Block, contra bono publico.  Today, the court entered an order that the applications were moot in light of the settlement and cancelling the hearing.
We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico* by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.
On January 30 we had a hearing in our suit against the Secretary of the California Department of Corrections and Rehabilitation to force him to adopt a usable execution protocol.  See my post after the hearing.

Judge Chang has issued a final ruling.  It is dated Friday, February 6, although it was not available until late Monday.  The final ruling is a reprint of the tentative ruling with a few paragraphs added at the end making the tentative ruling final and addressing the AG's arguments at the hearing.

This is only a preliminary step, rejecting the AG's attempt to have the case thrown out at the threshold.  That attempt is called a demurrer in California and other states that follow the old procedure.  In federal courts and states that follow the federal model, it would be a Rule 12(b)(6) motion.  Although preliminary, it does settle two very important points:

1.  Victims have standing to bring this case, both as parties with an interest over and above that of the public generally and "public interest" standing to enforce a public duty.  The latter wouldn't be allowed in federal court, but we are not in federal court.

2.  CDCR has a duty to establish a protocol.  They do have discretion on the details, but not on whether they do or don't establish one.  The bureaucracy cannot place a de facto moratorium on capital punishment, as they did in Maryland and as they have in California so far, simply by sitting on their hands and not establishing the protocol.

These are the primary questions of law in this case.  Actually issuing a writ of mandate will require resolution of further details, but this is a big gain for the cause of justice.

CJLF's press release is here.

Update:  Maura Dolan has this story for the LA Times.  Jennie Rodriguez-Moore has this story for the Stockton Record.

Hearing on Lethal Injection Suit

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In November, CJLF filed suit against the Secretary of California's Department of Corrections and Rehabilitation demanding that he stop dragging his feet and establish an execution protocol that the state can actually use, given the constraints imposed by existing injunctions.  The suit is on behalf of two family members of murder victims, Bradley Winchell and Kermit Alexander.

The California Attorney General, representing the Secretary, filed a document called a demurrer.  That is, in essence, an attempt to get the suit thrown out at the threshold, saying that even if every fact we allege is true, we still don't have a case.  The hearing was last Friday.  The day before, Judge Shellyanne Chang issued a tentative ruling, favorable to us on all the major points.  After the hearing, she took the matter under advisement, but I saw no indication that anything in the oral argument changed her mind.

The California Attorney General is an advocate representing a client, but also a public official representing the public.  She has, at times, declined to advocate positions she considered contrary to the public good, even if legally supportable.  What I find particularly offensive here is the argument that victims of crime have no standing, as if they were complete strangers to the underlying criminal cases.  The people enacted Proposition 9 in 2008 to refute that notion, and nationwide victims of crime are gaining recognition as people with real, legitimate interests in seeing justice done.

KOVR, the local CBS affiliate on channel 13, sent a cameraman to record the hearing and to interview us on the courthouse steps afterward.  Update:  There was a brief segment on the 6:00 Friday newscast.  Some still shots of the interviews are posted after the break.

Canada's Fairness for Victims Act

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Our northern neighbor's House of Commons commendably passed the Fairness for Victims Act, which among other things allows the parole board to set reconsideration intervals up to five years rather than the current two.  When a rapist or murderer is eligible for parole and the victim or victim's family is opposed, they must go to the hearing and relive the horror.  They ought not have to do that more often than necessary.

In an amazing screw-up, though, the wrong version of the bill was sent to the Senate and referred to committee there, Sean Fine reports in the Globe and Mail.

SCOTUS Monday

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The US Supreme Court today decided a rather narrow victim restitution issue in a mortgage fraud case, Robers v. United States.  Ronald Mann has this analysis on SCOTUSblog.

The high court also summarily reversed a summary judgment for the police officer in an excessive force case, Tolan v. Cotton.  There were sufficient disputed facts to go to trial.  Justice Alito agrees with the result but questions why this one case was plucked out the stream of cases.  It seems to be the exemplar of the kind of case SCOTUS passes up regardless of whether the lower court's decision is right or wrong.  That is, it is the application of settled law to particular facts with little potential to blaze any new legal trail or settle any disagreement between lower courts on a recurring question.

Also on today's orders list is Beard v. Aguilar, No. 13-677, California's petition seeking review of a Ninth Circuit decision overturning a murder conviction.  The underlying issue is the reliability of dog alerts as evidence and disclosure of previous false hits.  The Ninth Circuit said the California Court of Appeal's rejection of the claim was an unreasonable application of Brady v. Maryland.  Justice Alito, joined by Justice Scalia, dissents from denial of certiorari with only a cite to his Tolan concurrence, described above.  I gather he means to point out that the Court took Tolan even while letting other wrong decisions pass by.

Town of Greece v. Galloway is yet another case on opening public proceedings with prayers.  FWIW, SCOTUS opens its own sessions with "God save this honorable court."

In the orders list, the court took up for full briefing and argument two civil cases. Ryan v. Hurles is relisted yet again.

Some Crime Victims Count...

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...and some don't.

President Obama met at the White House with the families of the victims of the Newtown, Conn. school massacre.  Nothing wrong with that; it was a shocking national tragedy.  I have some misgivings that the meeting was enlisted in a political cause, but that's how it goes with this Administration.

The President has refused to meet, however, with the families of the victims of  another mass shooting, even though (unlike the case with Newtown), he was  the Commander-in-Chief of the people ambushed, and even though they were killed, not by a lunatic, but by a "soldier" of the same Jihad that has attacked America before.

What difference does it make, really, whether the federal government has some paltry financial interest in pretending, absurdly, that the Ft. Hood massacre five years ago was just "workplace violence" instead of a terrorist attack?  For my money, what compels the President to meet with Major Hasan's victims does not depend on how they are categorized.  What compels it is basic decency. 
When I read or listen to the anti-death-penalty crusaders, I often wonder how the victims enter into their mental schema.  Death penalty attorney Andrew Love has this candid article on the SF Chron's website (not sure if it was in the hard copy paper).  The first sentence is quoted in the title. The topic is the murder of Sandra Coke, an investigator for the federal public defender's office in Sacramento.

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