Recently in Victims' Rights Category

Katie Meyer reports for WITF that nearly 3/4 of Pennsylvania voters approved that state's version of Marsy's Law, granting constitutional rights to crime victims. Incredibly, though, the Secretary of the Commonwealth was enjoined by a Commonwealth Court judge "from tabulating and certifying the votes in the November 2019 General Election relating to [this] ballot question ... until final disposition of the Petition for Review, including appeals." This preliminary injunction order was affirmed by the Pennsylvania Supreme Court in a 4-3 vote.

Alexander Acosta said he was resigning as labor secretary, amid criticism of a nonprosecution deal he struck with financier Jeffrey Epstein more than a decade ago as a U.S. attorney.

Appearing Friday morning with President Trump on the South Lawn of the White House, Mr. Acosta told reporters he was stepping down. President Trump said the secretary had called him that morning, and that it was Mr. Acosta's choice.

The Crime Victims Rights Act, 18 U.S.C. § 3771, is a routinely violated law. It confers rights on victims in federal criminal cases and in federal habeas corpus cases challenging state convictions, but victims rarely have their own attorneys in these matters, so there is generally no one to speak up for the victims in cases where the prosecutor chooses not to.

Under the nonprosecution agreement with Mr. Epstein, who had been the target of a Federal Bureau of Investigation probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to two state prostitution-related felonies and served a 13-month prison sentence with work-release privileges that let him spend much of his time outside prison.

On Friday, President Trump signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA). The Act will help victims of what are frequently referred to as "child pornography" crimes obtain full restitution. The Act helps to resolve a thorny legal issue about how to provide restitution to victims -- an issue that was addressed in a 2014 case I argued before the U.S. Supreme Court with co-counsel James Marsh, Paroline v. United States. In rejecting our position that each defendant should pay the "full amount" of a victims losses, the Court articulated a confusing view on the partial restitution to which victims like Amy were entitled. The new law will help ensure victims ultimately receive full restitution from defendants who have harmed them.

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In People v. Martinez (S219970), the defendant's vehicle collided with a 12-year old boy riding on a scooter.  The defendant got out of his truck to check on the boy.  When the boy's mother rushed to the scene, the defendant got back into his truck and left.  The boy sustained multiple broken bones and a traumatic brain injury.  The defendant was uninsured, unlicensed, and on felony probation.  The defendant was soon located and voluntarily came forward admitting his involvement in the accident.

The defendant was charged with one felony count of leaving the scene of an accident (Calif. Vehicle Code 20001(a)).  He pleaded guilty and was sentenced to 3-years imprisonment.  At sentencing, the boy's mother stated that her son hit the defendant's truck and that it was an accident.  The defendant stated that the boy failed to stop his scooter and ran into his truck.  No findings were made regarding the defendant's responsibility for the accident.

The trial court later ordered the defendant to pay $425,654.63 in restitution to the victim's family for medical costs the boy incurred as a result of the accident.  On appeal, the defendant argued, and the Court of Appeal agreed, that
 

because defendant was not convicted for any offense involving responsibility for the actual accident and no factual determination of his responsibility for the collision or the victim's injuries has been made, the court erred in ordering restitution to the victim for treatment of the injuries he received as a result of the accident. 

Today the California Supreme Court also agreed with the defendant holding:

Where, as here, a criminal defendant is convicted and sentenced to state prison, section 1202.4 of the Penal Code (section 1202.4) provides that the defendant must pay restitution directly to the victim for losses incurred "as a result of the commission of a crime" (§1202.4, subd. (a)(1); see People v. Giordano (2007) 42 Cal.4th 644, 651-52 ("Giordano").)  "To the extent possible," direct victim restitution is to be ordered in an amount "sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (§1202.4, subd. (f)(3).)  Application of these provisions depends on the relationship between the victim's loss and the defendant's crime. Here, defendant's crime was not being involved in a traffic accident, nor does his conviction imply that he was at fault in the accident.  Defendant's crime, rather, was leaving the scene of the accident without presenting identification or rendering aid.  Thus, under section 1202.4, the trial court was authorized to order restitution for those injuries that were caused or exacerbated by defendant's criminal flight from the scene of the accident, but it was not authorized to award restitution for injuries resulting from the accident itself.

  

Baby Justice never stood a chance.  He was born with methamphetamine in his system and found frozen to death under some bushes along a slough bank 19-days later at the hands of his high, meth-addicted mother.

Baby Justice is dead.  His mother is in jail for second-degree murder and his father, Frank Rees, who has a history of meth related arrests and supposedly thought that the baby's mother "was clean", was arrested yesterday for his role in Baby Justice's death.  The baby was found dead almost exactly two years ago.  His mother was convicted by a jury almost six months ago.  Evidence at the mother's trial established that the baby's father was administering meth to the mother both days before and after his birth.  This evidence is what led to Rees' arrest.  Rees, 31, is now facing felony charges of involuntary manslaughter, child endangerment, and administering methamphetamine.  Yolo County District Attorney Jeff Reisig stated that "Under California law, when another individual's unlawful or reckless conduct in the face of known risks is a substantial factor that contributes to the death of another person, criminal liability may be established."

In a jailhouse interview yesterday, Rees said "I can almost guarantee you this is going to be thrown out, . . .  The DA should come here and give me an apology. I lost my son. I think I've been through enough."  Really?  Rees may not have physically taken the baby out to the slough that night, but he's been described as a "as a womanizing, meth-addicted, paranoid ex-convict who wielded intense control over [the baby's mother] first as her drug connection, then as the father of her child" and had dosed the baby's mother "with veterinary-size syringes of methamphetamine mixed with acetone in the days before their son's death."  Who should be apologizing to who here?

Rees' new girlfriend, who herself was arrested last month for possession of meth, just gave birth to Rees' 6th child.  This new baby girl was born two months premature and it is probably safe to say that meth is in her system as well.

Baby Justice stood no chance and now there is another baby struggling to survive.  Her mother most likely uses meth and her father is in jail facing manslaughter charges for his role in the death of the half-brother she will never meet.  The sad cycle continues.

Sherri Papini went for a run on November 2nd, but never returned home.  She did not pick up her two young children from daycare that evening and her cell phone was found lying on the side of the road.  Three weeks later, she is found alive in the very early morning hours by a passing motorist on the side of a County Road approximately 150 miles from her home.  She is chained and severely injured.  Her nose is broken and her skin has been branded by her captors. 

I live in the County where she was found that morning.  A friend of mine was the CHP Officer first on the scene.  When I got the news that she had been found alive, my first reaction was of shock and disbelief.  Too often these types of missing persons cases end with a dead body.  The cynic in me assumed that Sherri Papini would be found at some point in a similar manner.  Thankfully for her children and family, her story did not end in a typical fashion.

Unfortunately, immediately upon her discovery, the media and public jumped to the conclusion that the whole thing was a hoax.  Really?  A hoax by whom?  The severely beaten, branded and chained up woman who'd been thrown from a moving car onto the side of a pitch dark road in the middle of the night in the freezing cold?  Why are people so quick to assume that she's lying, or her husband is lying?  Perhaps I'm too trusting or gullible to believe otherwise.  Or perhaps despicable people like Scott Peterson or Drew Peterson make it hard to believe the story being told.

The details will come out eventually and I hope whoever is responsible is caught.  Any punishment the perpetrators receive, however, will in no way compare to the cruel and unusual torture that Sherri Papini endured and will continue to endure emotionally for the remainder of her life.   

Cameron Morrison was only 19 months old, but had suffered more catastrophic injuries than any person should ever ensure in an entire lifetime.  Cameron's mother's boyfriend, Darnell Deangelo Dorsey, was babysitting Cameron and his half-brother while their mother was at the gym.  When she returned home and found Cameron unconscious, Dorsey claimed that Cameron had "possibly choked on some food" and he had "shook and slapped the boy in an attempt to revive him."  Cameron died after being taken off of life support a few days later as a result of a severe traumatic brain injury due to blunt force trauma.  At the time of his death, Cameron's brain was so swollen there was "virtually no space between the brain and the skull."  Scans also showed Cameron had 18 rib fractures in various stages of healing, a lacerated liver, subdural hematoma, retinal hemorrhages, lung contusions, and hemorrhaging to his adrenal glands.  All the experts agreed that Cameron did not choke on food.  But rather had suffered blunt force trauma to his head and body that was inflicted while he was in Dorsey's care.

Yesterday, after an 8-week trial, Dorsey, who had a prior violent "strike" offense, was convicted by a jury of killing Cameron.  Yolo County Deputy District Attorney Michelle Serafin said, "At great sacrifice, the jurors dedicated eight weeks to finding justice for Cameron. Overwhelming evidence was presented to the jury thanks to the thorough investigation of the medical professionals at UC Davis Medical Center and the Davis Police Department. The hard work and dedication of the jurors, the doctors and the police officers is deeply appreciated by Cameron's family."

Dorsey's sentencing hearing is scheduled for December 2nd where he faces the possibility of 50 years to life in state prison.  A press release from the Yolo County District Attorney's Office can be found here.

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.  

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.

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.

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, §28(b) of the California Constitution.

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. 

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.