NCVLI Newsletter 6th ed

NCVLI News

Protecting, Enforcing and Advancing Victims’ Rights

Spring/Summer 2006

National Crime Victim Law Institute at Lewis & Clark Law School

In This Issue: Message From the Director...................1 Professor Doug Beloof

Discovery Versus Production: There is a Difference..........2 Kim Montagriff

In the Trenches........5 Defense Access to Victims’ Homes.........6 Joanna Tucker Davis

NCVLI’s Technical Assistance & Brief Bank..........9 The Changing Landscape of Federal Criminal Practice.................10 Meg Garvin

NAVRA News Corner...................13 The National Center for the Prosecution of Violence Against Women...................14 Erin Gaddy

A Victim’s Story.....16 Mary Elledge

Crime Victim Litigation Clinic.....19 Case Spotlights..8, 15, 18, 19

Message From the Director

C

by Professor Doug Beloof

rime victims’ rights are more than the discrete rights created by specific statutes or judicial decisions. Victims’ rights are about the victims’ participation in the criminal justice system and about changing the culture of that system to accommodate such participation. This issue of NCVLI News includes three legal articles that discuss seemingly peripheral aspects of victims’ rights –things not covered in the black letter of a statute, but which are critical to protecting crime victims’ rights and ensuring that victims are protected participants in the system. Specifically, the legal articles in this issue address issues of victim privacy, protection, and access to information.

In “Discovery Versus Production: There is a Difference,” Kim Montagriff discusses victim privacy and protection in the context of a victim’s private, confidential, or privileged records. In many cases, particularly sexual assault cases, defendants attempt to obtain victim records to attack the victim’s character. Victims are not parties to a criminal proceeding, a fact that should prohibit such discovery.

Production, the only procedure through which the defense may be able to properly obtain victims’ records, is not available for pretrial disclosure of victims’ records.

This article is the first in a series detailing the difference between discovery and production, and setting forth arguments to protect the victim’s privacy.

In “Defense Access to Victims’ Homes,” Joanna Tucker Davis writes about victim privacy and protection in the context of protecting victims’ homes from defense access. Our homes are our most private places; when the defense seeks to enter the victim’s home weeks or months after a crime, the victim is re-victimized. This article discusses cases on this issue, and illuminates arguments to be made to prevent defendant’s re-entry.

In “The Changing Landscape of Federal Criminal Practice,” Meg Garvin explains how a federal crime victims’ right to be heard at sentencing is compromised if victims cannot access relevant parts of the presentence report. The article asserts that “[w]hen a victim is denied the very information necessary to effectuate a right, the right itself is rendered meaningless. . . .”

In addition to these articles, we have two guest articles. First, from the National Center for the Prosecution of Violence Against Women, a Center within the American Prosecutors Research Institute, Erin Gaddy describes the activities and tremendous educational opportunities of the Center. Second, my friend, Mary Elledge, writes this edition’s “Victim’s Story,” discussing her experiences with the criminal justice system after the murder of her son, and describing the power of victim attorney representation.

Finally, this edition updates you on NCVLI=s technical assistance and brief bank, spotlights cases from across the country, updates you on NCVLI’s Crime Victim Litigation Clinic, and provides summaries of victim cases going on everyday “In the Trenches.”

ncvli.org

NCVLI News Spring/Summer 2006

Discovery Versus Production: There is a Difference

by Kim Montagriff

I

n criminal cases, especially those involving rape or sexual assault, defendants routinely attack victims’ privacy by seeking personal records, such as counseling, mental health, medical, employment, educational, and child protective services records. The law governing when these records must be disclosed to a defendant is complex, touching on a number of factors, including whether the records have been provided to the prosecutor; whether they are protected by a privilege; whether any applicable privilege is absolute or qualified; whether a victim has waived any privilege in full or in part; the scope of the jurisdiction’s constitutional or statutory protections for victims; and the jurisdiction’s statutes and rules governing discovery and production.

This article is the first in a series of articles to address a defendant’s ability to obtain disclosure of a victim’s records, and the devices a victim may use to prevent such disclosure.

Specifically, this article discusses the basic differences between discovery and production when a defendant seeks access to a victim’s records, and the importance of that difference to the victim. The distinction is the difference between the defendant’s wide-ranging access to information possessed by the prosecutor on the mere hope of unearthing something useful, and the defendant’s limited right Page 2

to already identified evidence from a nonparty at the time of trial. Understanding the fundamentals of this difference, while often overlooked, is critical to protecting a crime victim’s privacy.

The Legal Tools Available to a Defendant Seeking Privileged or Private Records

Absent voluntary disclosure, a criminal defendant may obtain a victim’s privileged or otherwise private records in one of two ways. First, if the records sought are properly in the possession or control of the prosecutor, a defendant may be entitled to those records pursuant to his constitutional, statutory, or rule-based rights to discovery. Second, if the records are not in the possession of the prosecutor, a defendant must subpoena those records pursuant to the jurisdiction’s statutes and rules governing production of documents from a nonparty.

While courts and practitioners sometimes refer to the defendant’s receipt of materials from both the prosecutor and nonparties as “discovery,” this imprecise use of the term confuses a defendant’s right to discovery from the prosecutor with a defendant’s right to production from a nonparty. The difference is vital to crime victims.

Discovery In a criminal prosecution, the term “discovery” refers to © 2006 National Crime Victim Law Institute

the exchange of information between parties to the case – in other words, the defendant and prosecutor. See, e.g., Fed. R. Crim. P. 16 (entitled “Discovery and Inspection,” the rule explicitly and exclusively governs discovery between the government and the defendant).

It does not govern the defendant’s ability to obtain information directly from a crime victim.

With regard to discovery from the prosecutor, a criminal defendant has no federal constitutional right to general

[A] state’s obligation to disclose certain Brady material does not provide defendant with the right to unfettered access to search the state’s files for exculpatory evidence. discovery from the prosecutor.

See Weatherford v. Busey, 429 U.S. 545, 559 (1977). The prosecutor, instead, is only constitutionally required to disclose information that is exculpatory and material to the issue of guilt, see Brady v.

Maryland, 373 U.S. 83, 87-88 (1963), and which is within the custody or control of the prosecutor. See United States v. Agers, 427 U.S. 97, 10607 (1976); Commonwealth v.

Beal, 709 N.E.2d 413, 41516 (Mass. 1999). Absent a defendant specifically

(continued on next page )

ncvli.org

NCVLI News Spring/Summer 2006 identifying exculpatory material in a prosecutor’s possession or control, the prosecutor retains the authority to determine which material is exculpatory and, therefore, must be disclosed. See Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (concluding that a state’s obligation to disclose certain Brady material does not provide defendant with the right to unfettered access to search the state’s files for exculpatory evidence).

App. 1993) (concluding, “The execution of a limited waiver, giving the prosecutor pretrial access to the patient’s treatment records, did not automatically entitle [defendant] to inspect those records.”).

Production In contrast to “discovery,” the term “production” refers to the procedure by which a defendant can secure materials from nonparties, including crime victims. See, e.g., Fed. R. Crim.

Beyond that material P. 17 (entitled “Subpoena,” the to which a defendant is rule governs the production constitutionally entitled, a of material from nonparties, prosecutor’s obligation to disclose including nonparty crime information is governed by statute victims). The United States or procedural rule. See, e.g., Supreme Court has explained that Charles E. Torcia, 2 Wharton’s the right to production flows from Criminal Procedure § 334, at 547 the Sixth Amendment’s rights to (13th ed. 1990); LaFave & Israel, confrontation and compulsory Criminal Procedure § 20.2. process, applicable to states A criminal defendant is often through the due process clause of entitled to additional discovery the Fourteenth Amendment. See materials from the prosecutor Pennsylvania v. Ritchie, 480 U.S. pursuant to these statutes or 39, 51 (1987). rules, though discovery statutes and rules vary widely between jurisdictions. Many jurisdictions, The Court has rejected even those imposing very limited the argument that the rule-based discovery obligations, right to cross-examination arguably require disclosure of a – part of the right to victim’s records if they are within confrontation – supports the prosecutor’s control. See, e.g., S.C. R. Crim. P. 5(a)(1)(D) a request for production (requiring disclosure of reports of pursuant to a subpoena.... physical or mental examination).

Therefore, where a victim voluntarily discloses records to The Court has rejected the the prosecutor, pursuant to the argument that the right to crossprosecutor’s Brady obligations or examination – part of the right applicable discovery statutes and to confrontation – supports a rules, disclosure by the prosecutor request for production pursuant to the defendant may be required. to a subpoena. See Ritchie, 480 But see People v. Reynolds, 633 U.S. at 52. In so doing, the A.2d 455, 461 (Md. Ct. Spec.

Court explained that requiring

production of all material that would render more effective the cross-examination of prosecution witnesses would have the effect of transforming the right to confrontation into “a constitutionally compelled rule of pretrial discovery.” Id. Instead, the right to confrontation protects only a defendant’s trial rights, see State v. Watson, 726 A.2d 214, 216 (Me. 1999), and “does not compel the pretrial production of information that might be useful in preparing for trial.” Ritchie, 480 U.S. at 52.

Similarly, the right of compulsory process does not support a pretrial request for production pursuant to subpoena.

Instead, the right of compulsory process is a trial right rather than a pretrial right. See United States v. Ferguson, 37 F.R.D. 6, 7-8 (D.D.C. 1965) (explaining that a “vital protection” against misuse of a subpoena duces tecum is that the subpoena may be returnable in advance of trial only in exceptional circumstances and only if directed by the court).

The right of compulsory process provides a defendant with “the right to have the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put evidence before a jury that might influence the determination of guilt.” Id. at 56. The Fifth Circuit has explained that, when asserting a constitutional right to compulsory process, “the defendant must at least make some plausible showing of how [the witness’s] testimony would [be] both material and favorable to his defense.” (continued on page 4)

© 2006 National Crime Victim Law Institute

Page 3

ncvli.org

NCVLI News Spring/Summer 2006 (continued from page 3)

United States v. Redd, 355 F.3d 866, 878 (5th Cir. 2003) (alterations in original) (internal quotations omitted). See also Ritchie, 480 U.S. at 56 (explaining that defendant’s right to compulsory process provides no greater protection than the due process clause).

State and federal statutes and rules of criminal procedure may set forth rights to production that go beyond that to which a defendant is constitutionally entitled. See, e.g., Fed. R. Crim.

P. 17. In most jurisdictions, however, those statutes and rules governing production were not

The distinction between discovery among the parties to a criminal prosecution and production from nonparties is not insignificant. It is the critical difference between the defendant’s wide-ranging access to information possessed by the prosecutor in the hope of finding possibly useful information, and the limited right to already identified evidence at trial. intended to provide an alternative or expansion to a defendant’s right to pretrial discovery. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) Page 4

(stating, “Courts must be careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim.

P. 16.”); Ala. R. Crim. P. 17.3, Committee Comments (stating, “This rule is not intended to be a discovery device because Rule 16 provides for discovery.”). The United States Supreme Court has explained that to warrant production of documents for use at trial, a moving party must show: 1. that the documents are evidentiary and reliable; 2. that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; 3. that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain inspection may tend unreasonably to delay the trial; and 4. that the application is made in good faith and is not intended as a general fishing expedition.

Nixon, 418 U.S. at 699-700 (footnotes omitted). Thus, under Federal Rule of Criminal Procedure 17, “a subpoena duces tecum may be used only for the production of documents that are admissible in evidence . . . .” United States v. Carter, 15 F.R.D. 367, 369 (D.D.C. 1954) (emphasis added). Accord United States v. Jackson, 155 F.R.D. 664, 667 (D. Kan. 1994) (explaining that the proper use of a subpoena duces tecum under Fed. R. Crim. © 2006 National Crime Victim Law Institute

P. 17 is as a tool for “compulsory process for securing specific, identifiable evidence for trial”).

Many states have rules of procedure akin to Fed. R. Crim.

P. 17, and have followed federal precedent in interpreting their state’s rules. See, e.g., Ex parte State v. Reynolds, 819 So.2d 72 (Ala. Crim. Ct. App. 1999); State v. Watson, 726 A.2d 214, 216 (Me. 1994); State v. Pacarro, 595 P.2d 295, 298 (Haw. 1979); Nabors v. State, 565 S.W.2d 598, 598-99 (Ark. 1978).

CONCLUSION

The distinction between discovery among the parties to a criminal prosecution and production from nonparties is not insignificant. It is the critical difference between the defendant’s wide-ranging access to information possessed by the prosecutor in the hope of finding possibly useful information, and the limited right to already identified evidence at trial.

The next article in this series of articles will further explore the importance of this difference in light of victims’ constitutional and statutory protections, and identify arguments that a victim can make to prevent or limit the disclosure of privileged, confidential, or otherwise private records.1 (Endnotes) 1 NCVLI has filed a number of amicus curiae

briefs addressing victim privacy and the arguments available to prevent a defendant from piercing that privacy. If you are confronted with such an issue please contact us at www.ncvli.org.

ncvli.org

NCVLI News Spring/Summer 2006

In the Trenches In this column NCVLI publishes news from the frontlines of the crime victims’ rights movement – information about cases we all want and need to know about, but aren’t published in any of the reporters. Several of these cases are still pending, and will be updated in future columns as information is available. If you know of a victims’ rights case that should be included in our “In the Trenches” column, please email us at ncvli@lclark.edu.

In Washington, a trial court, at county expense, appointed an attorney to protect the rights of the victims in a criminal case where the defendant was attempting to access the victims’ private and confidential records.

In New Jersey, the defendant in a serial murder case filed a motion “waiving” his right to attend sentencing. The attorney for the victim and amicus curiae successfully argued that the judge should require the defendant to attend the sentencing in order to hear the statements from the families of the deceased.

In California, in violation of state law, an inmate had his parole transferred to another state and moved out of California prior to paying off his restitution order. The victim’s attorney is seeking to have the inmate returned to California or to have the restitution award paid in full.

In New Mexico, a victim’s attorney filed a motion asserting the victim’s right to be present during defendant’s trial.

The trial court struck the motion, holding that because the prosecution agreed with the victim’s attorney, the victim lacked standing to file the motion. The victim’s attorney is seeking appellate review.

In Maryland, despite having filed a notice to be notified of all events relating to the case, the victim did not receive notification of a hearing to reconsider the defendant’s sentence. Moreover, during the reconsideration hearing, the judge did not determine whether the notification requirements regarding the victim had been met. The victim’s attorney filed a motion to vacate the reconsideration of the defendant’s sentence, and a hearing was held. The judge ruled in favor of the victim and vacated the reconsideration.

In Illinois, a judge told a victim of sexual assault that she must watch a videotape that was taken of her attack or be held in contempt. After intervention by her attorney, the judge reversed his decision and the victim did not have to watch the videotape.

© 2006 National Crime Victim Law Institute

Page 5

ncvli.org

NCVLI News Spring/Summer 2006

Defense Access to Victims’ Homes

by Joanna Tucker Davis

W

hen a crime is committed inside a person’s residence, the resulting harm encompasses more than just the crime itself. A victim’s sense of safety, privacy and security in his or her own home is also violated. Regaining a feeling of safety and security, and reclaiming the sense that one’s home is a sanctuary, rather than a crime scene, is crucial to healing from the effects of the crime. Too often, however, victims have to endure a second invasion of the very place that should be their private refuge – court orders forcing victims to open up their home to the defense as part of the criminal discovery process. This article details the state of the law nationally regarding whether a defendant is allowed access to a victim’s home or to a private residence.

There are few published cases on this issue. An electronic search revealed only eight cases that have squarely addressed the question of whether a defendant should be granted access to a private home to prepare for a criminal trial. In five of the cases – cases in California, Illinois, New York, Oregon, and Vermont – courts denied defendants access to a private residence.

While the Oregon Supreme Court held that there is no basis for such an order, courts in the four other states articulated a need to balance the defendant’s interests against the homeowner’s privacy interests. Illinois, California,

Page 6

Vermont, and New York courts all then found that the balance tipped in favor of the homeowner.

In State ex. rel. Beach v.

Norblad, 781 P.2d 349, 350 (Or. 1989), the Oregon Supreme Court granted a petition for a writ of mandamus filed by a murder victim’s widow and directed the trial court to vacate its order granting the defendant access to the widow’s home. The court held that since the victim’s widow was not a party to the case, and counsel had “not identified any other basis (and we know of none) under which the defendant trial judge could at this stage of

the proceedings issue such an order,” the victim was “under no obligation to obey an order that the defendant trial judge lacked authority to issue.” Id. Norblad is the only case in which a court denied the defense request under the rationale that the trial court lacked the authority even to issue such an order. Other states have not questioned the authority for such an order but have instead denied a defendant’s request for access to a victim’s home on the basis that the defendant’s showing was insufficient to overcome the victim’s privacy rights. © 2006 National Crime Victim Law Institute

For example, when the Illinois Appellate Court considered the issue of access to a victim’s home, it did not even reach the privacy concerns of the victim. Instead, the court found unpersuasive defendant’s argument that he needed access to a burglary victim’s bedroom at night to take photographs in order to show the jury the nature of the lighting.

People v. Poole, 462 N.E.2d 810, 813 (Ill. App. Ct. 1984). The court noted that it was not possible to reproduce the many factors that would have influenced the lighting on the night in question, an individual’s ability to see objects at different light levels could not be discerned from photographs, and defense counsel had made no showing that it was even possible to take a picture that would accurately depict the lighting levels at night. Id. In California, the Court of Appeals issued a writ of mandate overturning a trial court’s order allowing defense access to the victim’s home. Bullen v. Superior Ct., 251 Cal. Rptr.

32, 33-34 (Cal. Ct. App. 1988).

The appellate court held that the victim’s “fundamental right to privacy free from judicially mandated intrusion into her home” could only be overcome by a prima facie showing of sufficient “good cause” and “plausible justification” for the intrusion. Id. at 34. In Bullen, defense counsel had asserted that the defense team needed access to “‘view the scene of the crime, observe spatial (continued on next page )

ncvli.org

NCVLI News Spring/Summer 2006 distance, investigate possible defense theories and to generally prepare examination and crossexamination of key witnesses.’”

Id. (citations omitted). The appellate court found this showing “conclusional” and “inadequate to support judicially compelled access to petitioner’s home with the resulting deprivation of her right to privacy in and freedom from unwanted intrusion into her home” and therefore ordered the trial court to vacate its order allowing defense access into the victim’s home. Id. In a case that did not involve a crime victim but rather subsequent occupants of the house where the crime took place, the Vermont Supreme Court held that the occupant’s right to privacy could only be overcome by a showing of sufficient reason for the inspection. State v. Muscari, 807 A.2d 407, 418 (Vt. 2002). The defendant in Muscari refused to make any showing at the trial level of the need for access, claiming it violated attorney work-product privilege (an argument that the Vermont Supreme Court rejected).

Id. The court also noted that, in light of the evidence at trial and that the defendant had been given crime scene photos, it was unclear how seeing the scene first hand would have changed the defense strategy or justified the intrusion into a private home. Id. The Vermont Supreme Court, therefore, found no error in the trial court’s denial of the defense request for access into the home. Id. A New York trial court applied the test articulated in Bullen in People v. Nicholas, 599

N.Y.S.2d 779 (N.Y. Sup. Ct. 1993), and found that the defendant had failed to “demonstrate any compelling reason for access to the complainant’s residence sufficient to outweigh the complainant’s constitutional right to privacy.” Id. at 783. The court noted that the defendant, who had been provided crime scene photographs of the apartment in question and had lived in the apartment in the past, made only a “speculative showing” that did not meet his “necessary prima facie burden of showing that inspection of the crime scene

Of the three courts that have held that defense access should be allowed, only the Minnesota Court of Appeals failed to consider a victim’s or witness’s privacy interests. would yield relevant material evidence, not already provided, necessary for the preparation of the defense case.” Id. Of the three courts that have held that defense access should be allowed, only the Minnesota Court of Appeals failed to consider a victim’s or witness’s privacy interests. The two remaining states (Virginia and Florida) articulated balancing tests between the homeowner’s privacy rights and the defendant’s due process rights.

Courts in both of those states found that defendant’s due process rights outweighed the homeowner’s privacy rights.

In State v. Lee, 461 N.W.2d 245, 246 (Minn. Ct. App. 1990), a defendant indicted for first © 2006 National Crime Victim Law Institute

degree murder requested that the prosecutor give the defense access to the victims’ home, which was the scene of the crime. The prosecutor refused the request, “citing the objections of the victims’ family, and opposed the motion to compel discovery on the grounds that the house was no longer in the ‘possession or control’ of the prosecution.”

Id. The defendant then made a motion to the trial court to compel discovery and, when denied, brought a petition for a writ of mandamus to the Court of Appeals. Id. The Court of Appeals, in issuing the writ, did not discuss the defendant’s or the victims’ constitutional rights except to note that the time, place and manner of the inspection were to be appropriately restricted.

The court, instead, relied on Minnesota’s discovery rules, holding that the term “possession and control” of the prosecutor should “not be so narrowly construed as to limit defense access to premises which the prosecution has processed for evidence of crime and to which it may arrange similar access for the defense” and that defendant was to be allowed “complete” discovery. Id. at 247.

The Virginia Court of Appeals held that a trial court should not have denied defendant access to the crime scene, a private home belonging to a witness to the crime, but held that the error was harmless.Henshaw v.

Commonwealth, 451 S.E.2d 415, 416 (Va. Ct. App. 1994). While acknowledging that there is no general right to discovery in a criminal case, the court held: (continued on page 8)

Page 7

ncvli.org

NCVLI News Spring/Summer 2006 (continued from page 7)

If an accused establishes that inspecting, photographing, or measuring the crime scene is relevant and material, he is entitled to access, subject to such reasonable limitations and restrictions as the trial judge may impose, unless due to special circumstances the private citizen’s constitutional right to privacy outweighs the accused’s right to view or inspect the premises.

Id. at 420. The court then held that the defendant’s desire to measure distances between objects and observe the crime scene was a sufficient showing to order access in light of the fact that the victim had not shown any “special circumstances that would preclude [the homeowner] being required to make the premises available for inspection.” Id. In Florida, the District Court of Appeal, citing Henshaw as “a case on all fours,” acknowledged the victim’s right to privacy but concluded it was outweighed by

the defendant’s due process rights.

State v. Gonsalves, 661 So.2d 1281, 1282 (Fla. Dist. Ct. App. 1995). The defendant in Gonsalves was charged with burglarizing the victim’s home. The police took pictures both inside and outside the home. Id. at 1281. The defendant made a motion to take additional photos and to personally inspect the home; the victim objected to the further photography, afraid that it would lead to another burglary. Id. The trial court, over

If a court is inclined to grant a defendant’s request, an attorney should ask the court for protective measures to be set in place.... the victim’s objections, granted the defense motion, but limited the photographs to the portion of the house where the break-in took place and to the window through which the victim had seen the defendant. Id. The court held, with very limited discussion of

the reasons, that the defendant had “good cause” that outweighed the victim’s privacy interests. Id. In sum, with two exceptions – Oregon and Minnesota – the courts that have addressed this issue have all developed a balancing test between the defendant’s interests in preparing for trial and the homeowner’s privacy interests, and then applied the test to the facts before them, with differing results. If faced with a defense request for access to a victim’s home, a victim’s attorney should look to his or her own state’s discovery law, prepare arguments regarding a victim’s constitutional and statutory privacy rights, and marshal any facts that demonstrate that it is unnecessary to give the defendant access to the home.

If a court is inclined to grant a defendant’s request, an attorney should ask the court for protective measures to be set in place such as limiting the area(s) to which the defendant has access, when and for how long the access is granted, and who will be allowed entry into the residence.

Case Spotlight Kenna v. United States Dist. Ct. for the Cent. Dist. of Calif., 435 F.3d 1011 (9th Cir. 2006).

In a criminal fraud case, the trial court concluded that the victim’s “right to be reasonably heard at any public proceeding” under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(a)(4), was sufficiently protected where the victim had the opportunity to submit a written victim impact statement and to speak 3 months prior at the co-defendant’s sentencing. After granting the victim’s petition for writ of mandamus, the Ninth Circuit Court of Appeals noted that the legislative history of the CVRA disclosed “a clear congressional intent to give crime victims the right to speak at proceedings covered by the CVRA.” Concluding that the victim’s “indefeasible right to speak” was similar to that of defendants, the court remanded the case to the trial court. On remand, the victim filed, and the trial court granted, a motion to re-open the defendant’s sentence. A new sentencing hearing is scheduled for June 2006.

Page 8

© 2006 National Crime Victim Law Institute

ncvli.org

NCVLI News Spring/Summer 2006

NCVLI’s Technical Assistance & Brief Bank As part of its mission to advance crime victims’ rights, NCVLI litigates nationwide and provides research and educational material in response to requests from attorneys across the country. The following is a sampling of the issues NCVLI has addressed since our last Newsletter. If you would like a copy of any of these materials, or if you are an attorney seeking technical assistance, please contact NCVLI at 503-7686819, or at www.ncvli.org.

NCVLI has submitted amicus curiae briefs in the following cases, often along with co-amici.

•

People v. Giles. California Supreme Court. Defendant who was accused of murdering his former girlfriend sought to reverse his conviction based on the trial court’s admission of the victim’s hearsay statements regarding a prior incident of domestic violence. NCVLI argued that a crime victim’s voice is a necessary element of a fair and just criminal proceeding, and that where a victim is unavailable as a consequence of the defendant’s wrongdoing, the defendant has forfeited his Sixth Amendment right to confrontation.

•

State v. Cullen. New Jersey Trial Court. Defendant pled guilty to murdering at least 29 individuals and to the attempted murder of 9 individuals in New Jersey. Defendant sought to “waive” his right to appear for sentencing. NCVLI argued that where the defendant had no constitutional right to absent himself from sentencing and the crime victims’ rights would be undermined by such absence, the court can compel the defendant to be present. This case is more fully discussed on p. 19.

NCVLI’s staff attorneys have also analyzed these and other legal issues: •

Whether crime victims in New Mexico and Idaho have trial-level standing to assert their constitutional rights to be present at trial.

•

Under its “zero tolerance” policy for sexual conduct on school grounds, whether a school board could expel a student who was sexually assaulted by a classmate.

•

Whether the federal Crime Victims’ Rights Act (CVRA) provides a crime victim with the right to speak at a sentencing proceeding where the victim had previously submitted a victim impact statement and had been given the opportunity to speak at the co-defendant’s sentencing. This case is more fully discussed on p. 8.

•

Whether a judge can require a rape victim to view the video of her own sexual assault while appearing as a witness in the trial. This case is more fully discussed on p. 18.

•

Where a defendant dies while his direct appeal to the intermediate appellate court is pending, whether the court should follow the historical rule that a defendant’s conviction abates ab initio or adopt the approach taken by the large majority of courts that have considered the issue since the advent of victims’ rights and reject the abatement doctrine.

•

The state of the nation regarding a victim’s right to refuse a pretrial defense interview and deposition.

•

Whether a trial court has the authority to appoint counsel and order attorneys’ fees paid for crime victims.

This case is more fully discussed on p. 15.

© 2006 National Crime Victim Law Institute

Page 9

ncvli.org

NCVLI News Spring/Summer 2006

The Changing L andscape of Federal Criminal Practice

by Meg Garvin

T

he Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, created eight explicit rights for crime victims – rights that are enforceable in trial courts and guaranteed review by appellate courts. Each of the CVRA’s provisions represents a tremendous step forward for crime victims.

But the CVRA is more than the sum of these parts.

The CVRA ushered in a new era in the federal criminal justice system – an era in which victims are firmly established as independent participants. See Kenna v. United States Dist. Ct. for the Cent. Dist. of Cal., 435 F.3d 1011, 1013 (9th Cir. 2006) (finding that “[t]he criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian children – seen but not heard. The [CVRA] sought to change this by making victims independent participants in the criminal justice process.”); Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims’ Rights Act, 2005 B.Y.U. L. Rev. 835, 893 (2005) (noting that “[t]he CVRA transforms crime victims into participants in the criminal justice process . . . . These new rights will reshape the federal criminal justice system . . . .”). In this new era of clear participatory status coupled with explicit rights, the influence of the CVRA on the federal criminal justice system will be far and wide, including seemingly peripheral aspects of a criminal case.

This article details one of those ostensibly peripheral moments – the CVRA’s impact on disclosure of a presentence report to the crime victim.

The Pre-CVRA Law of Disclosure A presentence report is the report of the investigation conducted by a probation officer prior to the imposition of sentence.

See 18 U.S.C. § 3552(A). Federal Rule of Criminal Procedure 32, which governs presentence reports, identifies certain mandatory recipients of the report. It provides, in pertinent part: The probation officer must give the presentence report to the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period. Fed. R. Crim. P. 32(e)(2).

Notably the Rule is silent regarding disclosure to other persons – neither affirmatively requiring, nor prohibiting such disclosure. Thus, courts have long recognized that nothing in federal law prohibits disclosure of the presentence report to nonparties.

See, e.g., United States v. Charmer Indus., Inc., 711 F.2d 1164, 1172 (2d Cir. 1983); United States v.

Figurski, 545 F.2d 389, 391 (4th Cir. 1976). Despite the lack of a legal proscription to disclosure, by habit and practice courts have treated the reports as confidential.1 See, e.g., United States v. Corbitt, 879 F.2d 224, 229 (7th Cir. 1989);

Charmer Indus., Inc., 711 F.2d at 1173; United States v. Dingle, 546 F.2d 1378, 1381 (10th Cir. 1976); United States v. Preate, 927 F. Supp. 163, 166 (D. Pa. 1996).

In light of this lack of a proscription and the practice of confidentiality, courts have articulated a number of tests to guide their discretionary release of the reports. At their core, each of these tests requires a court to look at the need of the individual seeking disclosure, and to balance that against the practice of maintaining confidentiality. See, e.g., United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995) (adopting standard of Seventh Circuit that disclosure should occur

... [C]ourts have articulated a number of tests to guide their discretionary release of the reports. At their core, each of these tests requires a court to look at the need of the individual seeking disclosure, and to balance that against the practice of maintaining confidentiality. only where there is a compelling and particularized need); Corbitt, 879 F.2d at 239 (finding that disclosure should only occur “where a compelling, particularized need for disclosure is shown”); United States v. Schlette, 842 F.2d (continued on next page)

Page 10

© 2006 National Crime Victim Law Institute

Page

ncvli.org

NCVLI News Spring/Summer 2006 1574, 1578 (9th Cir. 1988) (holding that disclosure to a nonparty is appropriate where that nonparty makes a threshold showing that the disclosure will serve the ends of justice, and there is no valid counter-showing of a reason to preclude the disclosure); Charmer Indus., Inc., 711 F.2d at 1175 (finding that disclosure should not be made “in the absence of a compelling demonstration that disclosure of the report is required to meet the ends of justice”).

The CVRA Changes the Disclosure Equation Among the recognized purposes of a presentence report are 1) to aid a sentencing court in its formulation of a sentence; 2) to aid a sentencing court in calculating restitution; and 3) to aid a parole commission when making determinations of parole eligibility.

See Julian v. United States Dep’t of Justice, 806 F.2d 1411, 1415 (9th Cir. 1986), aff’d 486 U.S. 1 (1988); Schlette, 842 F.2d at 1578. The contents of a presentence report directly reflect these purposes.

See, e.g., Fed. R. Crim. P. 32(d)(1) (identifying information that must be included to aid in calculation of the sentencing guideline range); (d)(2)(A)(ii) (providing that the report must include information about “defendant’s financial condition”); (d)(2)(A)(iii) (providing that the report must contain “any circumstances affecting the defendant’s behavior that may be helpful in . . . correctional treatment”); (d)(2)(C) (providing that when appropriate the report must contain “the nature and extent of nonprison programs and resources available to defendant”); (d)(2)(D) (providing that the report must

include “information sufficient for a restitution order”).

A victim’s rights to protection, to be reasonably heard, to restitution, and to fairness afforded by the CVRA, see 18 U.S.C. §§ 3771(a)(1), (4), (6) & (8), are directly implicated by the purposes and contents of the report. Without access to the information in the report that impacts these rights, the rights will be fundamentally undermined. Thus, the CVRA changes the analysis regarding when disclosure of the presentence report is appropriate.

Without access to the information in the report that impacts these rights, the rights will be fundamentally undermined. Thus, the CVRA changes the analysis regarding when disclosure of the presentence report is appropriate.

The Right to be Reasonably Heard The CVRA provides that victims have the right “to be reasonably heard at any public proceeding in the district court involving . . . sentencing.” 18 U.S.C. § 3771(a)(4). This affords victims the right to provide all three types of victim impact, specifically including “sentencing recommendations.” 150 Cong.

Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).2 Intimately related to the right to be heard, is subsection (a)(8)

of the CVRA, which provides the victim with “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(8).

When explaining the scope of this right, Senator Kyl stated, “Of course, fairness includes the notion of due process.” 150 Cong.

Rec. S10911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl).

Due process requires that when a person’s rights may be negatively affected, that person must receive notice and an opportunity to be heard, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972), and that such notice and opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” Armstrong v.

Manzo, 380 U.S. 545, 552 (1965).

See also Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950).

Meaningful notice and a meaningful opportunity to be heard at sentencing, as it relates to the crime victim’s rights to fairness and to be heard, require disclosure of the presentence report prior to sentencing. This is true because, as noted supra, the presentence report provides the sentencing court with information used to calculate the appropriate sentence under the Sentencing Guidelines.3 Without this information the victim’s statement and sentencing recommendation may be so far outside the realm of possibility as to be rendered inconsequential.

When a victim is denied the very information necessary to effectuate a right, the right itself is rendered meaningless and fundamental fairness is violated. Thus, for a victim to exercise his right to be heard, including giving an informed, coherent and meaningful sentencing recommendation, he (continued on page 12 )

© 2006 National Crime Victim Law Institute

Page 11

ncvli.org

NCVLI News Spring/Summer 2006 (continued from page 11)

must have access to all portions of the presentence report that may guide the court as to sentence.

The Right to Restitution Subsection (a)(6) of the CVRA provides victims “[t]he right to full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(6). While the provision of restitution is governed generally by the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, and the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663, the CVRA now complements those laws.

As noted supra, the presentence report contains a great deal of information that goes to calculating a restitution award, including a defendant’s financial condition.

While the federal restitution statutes have procedural provisions governing calculation and award of restitution, “[a]s a practical matter, many of the calculations supporting a restitution award will rest on information in the presentence report.” See Cassell, supra, at 896. To ensure full restitution to a victim, the victim must know the information that a court may use to calculate a restitution award, be allowed the opportunity to challenge any erroneous information, and be allowed

to provide sufficient counterinformation to the court.4 Thus, enforcement of a victim’s right to restitution requires disclosure of the presentence report.

The Right to Protection The CVRA provides that victims have the right to “be reasonably protected from the accused.” 18 U.S.C. § 3771(a)(1).

This right requires “reasonable conditions of pretrial and postconviction relief that include protections for the victim’s safety.”

150 Cong. Rec. S10910 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). Because a presentence report not only aids a court in determining what sentence to impose, but also later aids the parole commission in determining release, a crime victim’s right to be protected is intimately connected to the contents of the report. To ensure that a victim’s right to protection is given its full meaning, the victim must have access to all portions of a presentence report that may guide a court or parole commission regarding detention of the defendant.

CONCLUSION The CVRA’s provision of explicit rights and remedies is a

tremendous step forward for crime victims. Similarly, the CVRA’s firm establishment of victims as proper participants in the federal criminal justice system is a positive step. Taken together it is clear that the CVRA will have a pervasive impact on the criminal justice system. The crime victim’s right to access defendant’s presentence report is just one example of this impact.

In light of the rights afforded by the CVRA and the newly solidified participatory status of the crime victim, presentence reports should be disclosed to crime victims. Further, the CVRA imposes an independent obligation on the judiciary to ensure that victims’ rights are afforded.

See United States v. Ingrassia, No. CR-04-0455ADSJO, 2005 WL 2875220 (E.D.N.Y. 2005) (unpublished); United States v. Dengenhardt, 405 F. Supp.

2d 1341, 1349 (D. Utah 2005).

Thus, there simply can be no cogent reason for the wholesale decline of disclosure when an individual’s statutory rights are at stake. Consequently, courts must afford crime victims access to those portions of a defendant’s presentence report that affect their rights.5

(Endnotes) 1 In fact, until relatively recently this confidentiality included general non-disclosure even to the defendant. See Corbitt, 879 F.2d 224 (7th Cir. 1989).

2 While some courts have found that Payne v. Tennessee, 501 U.S. 808 (1991), left unresolved the constitutionality of a victim giving a sentencing recommendation in a capital case, it is well-settled that in noncapital cases such recommendations are constitutionally permissible. See Douglas E. Beloof, Constitutional Implications of Crime Victims as Participants, 88 Cornell L. Rev. 282, 289 (2003).

3 While courts need not strictly abide by the Sentencing Guidelines following United States v. Booker, 543 U.S. 220 (2005), the Guidelines continue to be considered by courts. See, e.g., United States v. Dalton, 404 F.3d 1029 (8th Cir. 2005); United States v. Rogers, 400 F.3d 640 (8th Cir. 2005); United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah 2005).

4 Rule 32 was only relatively recently amended to allow disclosure to the defendant – the motivation for such amendment included concerns about courts imposing sentences based on erroneous information. See Schlette, 842 F.2d at 1578 (discussing history of revisions to Rule); Fed. R. Crim. P. 32 (Advisory Committee Note to the 1983 Amendment) (stating, “These changes have been prompted by findings in a recent empirical study that the extent and nature of disclosure of the presentence investigation report in federal courts under current rule 32 is insufficient to ensure accuracy of sentencing information.”). These same concerns regarding inaccurate information damaging a right extend to a victim’s right to restitution.

5 The entire presentence report does not invariably need to be turned over to every crime victim in every case. Instead, a court must determine which portions of a report are necessary to enforce the crime victim’s individual rights, and those portions, excluding what is precluded by Rule 32(d)(3), should be disclosed.

Page 12

© 2006 National Crime Victim Law Institute

ncvli.org

NCVLI News Spring/Summer 2006

NAVRA News Corner Mission Statement: The National Alliance of Victim Rights Attorneys promotes the exchange of knowledge and resources to foster a national network of skilled attorneys to represent crime victims in the criminal justice system.

Founded in 2002 as an association of NCVLI, NAVRA’s membership is comprised of attorneys, law students, advocates, service providers, and crime victims. With 267 members from 36 states, NAVRA continues to expand and diversify its membership.

It has been a productive year for NAVRA leadership and members. In 2006, NAVRA:  had its first meeting of the NAVRA Advisory Board. The Board includes Russell Butler, David Flowers, Keli Luther, Jamie Mills, Diane Moyer, Richard Pompelio, and Steve Twist.  hosted its 2nd semi-annual teleconference in March 2006. Thirty-two NAVRA members participated in the training with the Honorable Paul G. Cassell. titled The Victims’ Right To Attend Trial: The National Consensus. Judge Cassell discussed the history and state of the law regarding a victim’s right to attend trial.  emailed its quarterly Crime Victim Law Update to all members. The Law Update is a summary of recently-decided victims’ rights cases prepared by NCVLI legal staff and compiled into a quarterly update.  welcomed 24 new members from 12 different states.  welcomed 16 new members to its listserv. The listserv is used to facilitate discussion about victims’ rights issues among attorney and law student members.  continued its $20 tuition reduction for the NCVLI Law & Litigation Conference on June 16 & 17.

NAVRA encourages attorneys, law students, victim advocates, and crime victims to lend support to the ongoing movement towards justice for victims of crime. Currently, the NAVRA membership fee is waived.

To become a member, fill out the online form at http://law.lclark.edu/org/ncvli/navra_form.html.

N

AVRA

If you are not already a member of the National Alliance of Victims’ Rights Attorneys, register today and join the growing membership of victims’ rights attorneys and advocates.

For updates on NAVRA activities and membership information, please visit NAVRA’s webpage: http://law.lclark,edu/org/ncvli/alliance.html

© 2006 National Crime Victim Law Institute

Page 13

ncvli.org

NCVLI News Spring/Summer 2006

The National Center for the Prosecution of Violence Against Women

by Erin Gaddy

T

he National Center for the Prosecution of Violence Against Women (NCPVAW), was founded in 1996 as the Violence Against Women Program. A center within the American Prosecutors Research Institute (APRI), the mission of NCPVAW is to improve the quality of justice in violence against women prosecutions by increasing awareness of the dynamics of victimization, identifying best prosecution practices, developing research and reference resources, and providing training and technical assistance at the national, regional and local levels for prosecutors, law enforcement, and other allied professionals. NCPVAW Director Teresa Scalzo has been involved in the prosecution of violence against women since 1997. She joined NCPVAW in 2002. She leads a staff of three (soon to be four) attorneys, all of whom are dedicated to the ultimate goal of stopping violence against women. The staff seeks to achieve its goal primarily through the education of prosecutors and allied professionals.

violence cases using the dynamics and context of domestic violence, risk assessment, and linkage with other community interveners. Each NIPDV is limited to fifty (50) prosecutors. This attendance cap creates a high faculty/student ratio that increases the students’ learning opportunities. NCPVAW Senior Attorney Jennifer Long is overseeing NIPDV, with substantial assistance from Staff Attorney Kate Ryan. In 2006, NIPDV will be offered: July 18-21 in Seattle, Washington; Sept. 12-15 in San Diego, California; and Dec. 5-8 in Charleston, South Carolina.

Each year, NCPVAW conducts trainings for prosecutors throughout the country on domestic and sexual violence issues through its National Institute on the Prosecution of Domestic Violence (NIPDV) and National Institute on the Prosecution of Sexual Violence.

In a collaboration that parallels the APRIBWJP partnership, APRI has collaborated with the Pennsylvania Coalition Against Rape (PCAR) to develop the National Institute on the Prosecution of Sexual Violence (NIPSV). NIPSV is an interactive training that equips prosecutors with the tools and strategies they need to shatter the myths about nonstranger sexual violence and successfully evaluate, investigate and prosecute sexual assault cases. NIPSV is the only training of its kind in the nation for sexual violence prosecutors. Like NIPDV, NIPSV offers a high faculty/student ratio with attendance limited to fifty (50) prosecutors. NCPVAW developed and pilot-tested the first NIPSV in 2005. Senior Attorney Erin Gaddy is overseeing NIPSV. In 2006, NIPSV was held from March 28-31 in Memphis, Tennessee.

It will be offered again: June 6-9 in Monterey, California; August 15-18 in Las Vegas, Nevada; and September 26-29 in Denver, Colorado.

NIPDV teaches prosecutors to evaluate, prepare and present domestic violence cases using the dynamics and context of domestic violence, risk assessment, and linkage with other community interveners.

NIPDV, a collaborative project with the Battered Women’s Justice Project (BWJP), is the only training of its type in the nation for domestic violence prosecutors. A highly-interactive training program based on adult learning principles, NIPDV teaches prosecutors to evaluate, prepare and present domestic

Page 14

The course includes lectures and courtroom exercises to teach prosecutors to more effectively prepare and try nonstranger sexual assault cases.

NCPVAW also holds two courses each year at the National Advocacy Center, in Columbia, South Carolina. Sexual Assault Trial Advocacy: Meeting

© 2006 National Crime Victim Law Institute

(continued on next page)

ncvli.org

NCVLI News Spring/Summer 2006 Common Defenses was held on January 9-13, 2006.

In this course, prosecutors work through a mock case involving a voluntarily intoxicated victim. The course includes lectures and courtroom exercises to

NCPVAW has compiled prosecutor assistance packets, which are distributed upon request to prosecutors across the country. These packets are routinely updated as a result of the discussions and issues raised on the listserv group.

teach prosecutors to more effectively prepare and try nonstranger sexual assault cases. NCPVAW’s Teresa Scalzo is the course director. The second course, Evidence Based Prosecution, was held March 13-17 this year. In this course, participants work through a mock fact pattern in which the victim fails to cooperate with the prosecution of her batterer. The course combines lectures with courtroom exercises to prepare prosecutors to try domestic violence cases with uncooperative victims. Jennifer Long is the course director. Each of these courses has been presented for the past three years.

NCPVAW also runs the Yahoo! Violence Against Women Prosecution group listserv. The intent of the group is to foster national discussion on topics relevant to the prosecution of violence against women. Members of the NCPVAW staff monitor and respond to listserv discussions. Staff members also regularly post requests for assistance and information from prosecutors around the nation to the listserv.

In addition, NCPVAW has compiled prosecutor assistance packets, which are distributed upon request to prosecutors across the country. These packets are routinely updated as a result of the discussions and issues raised on the listserv group. Kate Ryan is responsible for the oversight of the Yahoo! group. To sign up for the group, email Ms. Ryan at ncpvaw@ ndaa-apri.org, and ask to be added to the listserv.

(You will be asked for proof that you are a prosecutor or allied professional.)

NCPVAW publishes The Voice as well as other publications throughout the year. The Voice may be accessed electronically at NCPVAW’s website at http://www.ndaa-apri.org/publications/newsletters/ the_voice_contents.html. NCPVAW uses these publications in conjunction with the other training opportunities identified to ensure prosecutors have access to up-to-date information and are able to combat defenses without merit.

Finally, NCPVAW provides technical assistance to military and civilian prosecutors by email and phone. Staff members provide advice and assistance on specific cases, address themes and theories for cases, advise on expert witness issues (including identifying witnesses for use in a particular jurisdiction), and answer general knowledge questions. In addition, prosecutors are routinely provided with materials which they request from the Prosecution Toolkit available on NCPVAW’s website at http://www.ndaa-apri.org/phpdocs/ta_response_ packet_index.html.

NCPVAW is here to help! Please contact us at 703549-4253, or visit our homepage at http://www.ndaaapri.org/apri/programs/vawa/vaw_home.html.

Case Spotlight State v. Savoie, No. 04-1-00211-0 (Wash. Sup. Ct., Grant Cty., March 9, 2006).

In a case involving the murder of a juvenile who was brutally killed several years ago, the Grant County, Washington Prosecutor filed a motion requesting the trial court to appoint counsel and pay attorney’s fees for the victim’s parents. The motion was based on Washington State’s crime victims’ rights laws, allegations of aggressive defense tactics that were undermining the parents’ rights, and the court’s inherent authority to appoint counsel. Finding that appointment of counsel was necessary to protect the parents’ rights, the trial court appointed counsel and ordered that attorney’s fees be paid. © 2006 National Crime Victim Law Institute

Page 15

NCVLI News Spring/Summer 2006 did any of us know that Rob would be murdered by a man who said Rob was just like a brother to him.

A man who had known Rob ever since they were twelve and nine years old; Rob being the younger.

A Victim’s Story

by Mary Elledge

On July 13, 1986, my life was changed forever. What was normal for my husband, three daughters, and myself would never be the same. It was on that date that my only son, Rob, was brutally murdered by three men.

At that time, Rob was twenty-one years old, living at home with his parents and younger sister, and finishing his college degree. He had a wonderful girlfriend who he planned to marry and a wide assortment of friends. He worked part-time and had already bought his first rental.

We lived next door to Rob’s grandparents on a private road up above the Clackamas River. Little

Little did any of us know that Rob would be murdered by a man who said Rob was just like a brother to him.

Three days before Tony Wik murdered Rob, he came over to our home. He wanted to know what we were going to be doing the following weekend. I told him we were going to be at the coast and Rob would be home. He had told Rob he had a buyer for a car and a few other items Rob was planning to sell in order to buy a newer car.

Rob had let him take the items, but he had kept the titles until they were paid for.

As I learned during the criminal investigation and trial, Wik hired two men to help him murder Rob. One of the men was Wik’s cousin, twenty-one year old Robert Portlaw. The other man was a nineteen year old friend of Portlaw, Tim Sundeen.

Tim had just been released for stabbing his girlfriend three years earlier. Tony lured Rob from our home by asking him to meet him on Saturday evening to get the money Tony had for selling Rob’s property. Rob left our home to meet him, and while Rob was waiting at the spot, Tony and the other men went to our home instead. They broke into our home and waited for Rob to return. Tony had Sundeen wait behind the front door with a bat. Robert Portlaw and Wik waited in another room.

As Rob entered our front door, Sundeen hit Rob several times with the bat. He crushed Rob’s skull. Rob was still alive so Wik had Portlaw strangle Rob with

ncvli.org our telephone cord and Portlaw also injected Rob with a horse tranquilizer. It took the two men about forty minutes to murder our son while Tony watched and gave orders. After the murder, the men cleaned up the blood and buried Rob in a shallow grave about ten miles from our home. Three or four hours after Tony had Sundeen and Portlaw bury Rob, Tony went

On August 17, the detectives came to our home to say that the stepmother of one of the men who murdered Rob called to say that her stepson had bragged about killing a young man. over to Rob’s grandfather’s house and asked if Rob’s grandfather had seen Rob. He said that Rob was supposed to meet him but did not show up the night before.

On Sunday evening, I came home from the coast and our home seemed different. There was no evidence of blood or any damage, but something seemed wrong.

Also, Rob was not at home. He was always good about letting us know where he was. Rob’s girlfriend called and came over as he had not called her either. Tony kept calling and coming over.

He would even cry. He would say that he missed Rob so much.

On August 17, the detectives came to our home to say that the stepmother of one of the men who murdered Rob called to say that her stepson had bragged about (continued on next page

Page 16

© 2006 National Crime Victim Law Institute

Page 17

ncvli.org

NCVLI News Spring/Summer 2006 killing a young man. Tim Sundeen and Robert Portlaw were picked up. Sundeen told them where they buried Rob. They were arrested.

It was nearly eight months before Tony Wik was arrested. During all of that time, it was like a nightmare.

None of us knew how the justice system worked. Even though Sundeen confessed, we needed more evidence. Tony could not be broken. He still says he was not involved in Rob’s murder. We learned how evil a sociopath can be. They are not sorry. Right is what affects them.

All three men were convicted.

Tim Sundeen pled guilty to first degree murder and burying Rob’s body. He was given 32 years.

Robert Portlaw was allowed to plead to a lesser crime of manslaughter if he told the truth

My family and I soon learned that the justice system is not balanced. about Tony’s involvement. He lied. But, they were unable to change the plea agreement.

Clackamas County no longer does this type of plea agreement because of this case.

Tony Wik had a three week trial, and was convicted. During the trial, my family and I soon learned that the justice system is not balanced. People lied in court.

Tony could lie about our son. We were very blessed because of the wonderful support we got from

Page 18

family and friends. We were also blessed because we had support from the detectives, Dennis Miller, our District Attorney, Victims’ Assistance and Parents of Murdered Children. Our case was also one of the first cases in Clackamas County where the covictims could be in the courtroom for a murder trial.

As I said, my life was changed as well as the lives of my family and best friends. I found that I was so grateful for the love and support I received that I wanted and needed to help others whose lives had been changed by the murder of a loved one.

A year after Rob was murdered, I became President of Crime Victims United for two years. I wanted to understand how our justice system worked and what we could do to change it. I learned from the best, Bob and Dee Dee Kouns.

For the last sixteen years, I have been Chapter Leader of Parents of Murdered Children for The Greater Portland Chapter. I’m also the editor for the monthly newsletter. POMC is a nonprofit, self-help support group that is there for co-victims of homicide. We can and do work on victims’ bills. We do court watch and help educate the public and professionals in the justice system and on the aftermath of homicide.

We can help co-victims because we have been there. It is also important that co-victims see and talk to us so they know there is hope. We are still here. We want them to know there can be a new normal.

I do workshops along with POMC co-leader, Gayle Moffitt, at the National Conference for POMC. It is a wonderful opportunity to meet co-victims from across the United States.

Many of the co-victims do not have chapters close by their homes

Helping these people is so rewarding; connecting with others lets us know we are not alone. so for some it might be the first time they can be surrounded by people who understand.

It is an honor to be a trainer for The State Victim Assistance Academy (SVAA). We are a team that trains people in victim assistance on helping and working with victims of crimes. We train all over Oregon. Doing crisis response work also for NOVA (National Office for Victim Assistance) and The National Organization of Parents of Murdered Children is also very compelling. I feel I get back so much more than I give. Helping these people is so rewarding; connecting with others lets us know we are not alone.

It is also a pleasure to do trainings and to educate anyone interested in helping victims of crime. The National Crime Victim Law Institute at Lewis & Clark Law School is like a dream come true for me. To have an organization at a law school that is there for victims gets us close to a balanced justice system. To

(continued on page18)

© 2006 National Crime Victim Law Institute

Page 17

ncvli.org

NCVLI News Spring/Summer 2006 (continued from page 17)

meet law students and be able to tell what homicide co-victims go through lets me know that these people will be here to see that the rights of victims are upheld.

Looking back over nearly twenty years, I can see how far we have come.

It is people who want justice for everyone and a balanced justice system that make a difference Finally, in trainings, I’m so thrilled to let the students at colleges, police departments, any profession working with victims, or for that matter, any concerned organization, know about the aftermath of homicides. Victims are being heard. People can make changes.

Looking back over nearly twenty years, I can see how far we have come. It is people who want justice for everyone and a

balanced justice system that make a difference. Lewis & Clark Law School has a hero in their own school, NCVLI’s Executive Director Doug Beloof. Nearly ten years ago, he represented my son’s case in court so the murderer, Tim Sundeen, would not be released early. The killer had been sentenced to consecutive terms. One sentence on the murder and another on the robbery. In Habeas proceedings a federal court ruled that it was unclear whether the District Attorney’s plea agreement was for concurrent or consecutive time. The judge ordered a re-sentencing and prohibited the district attorney from asking for consecutive time.

Doug put on a sentencing hearing on behalf of my family, the crime victims, and called and examined witnesses. The defendant was resentenced to consecutive time, the same sentence he had originally received. My family and I were so grateful for Doug’s help. In addition to helping me, he also helped to protect society from someone who would be a danger to others if they were released.

N

CVLI

welcomes story ideas and suggestions for future articles that spotlight an attorney, service provider, advocate, or public or private citizen working on behalf of crime victims. Please send ideas and/or stories to the following address: NCVLI Newsletter Lewis & Clark Law School 10015 SW Terwilliger Boulevard Portland, OR 97219 Tel: 503-768-6819 Fax: 503-768-6671 ncvli@lclark.edu

Case Spotlight People v. Misbrenner, Case No.04-CR 25847-01 (5th Mun. Dist. Ct., Cook Cty, 2006).

During a rape prosecution in Illinois, a trial court judge threatened to find a victim in contempt of court for refusing to view or testify about a videotape of her own gang rape. The Illinois Coalition Against Sexual Assault, NCVLI, and private attorneys on behalf of the victim got involved, persuading the prosecution to object vigorously to the court’s proposed ruling. The attorneys argued that forcing the victim to watch the videotape would exceed what is constitutionally required to protect the defendant’s rights, would only serve to harass the victim unduly, and would violate the victim’s state constitutional right “to be treated with fairness and respect for [her] dignity and privacy throughout the criminal justice process.” Ill. Const. art. I, § 8.1(a)(1). These arguments were persuasive, and the trial court did not compel the victim to watch the videotape.

Page 18

© 2006 National Crime Victim Law Institute

Page 19

ncvli.org

NCVLI News Spring/Summer 2006

Crime Victim Litigation Clinic Lewis & Clark Law School’s Crime Victim Litigation Clinic, taught by NCVLI staff attorneys, continues to provide opportunities for 2nd & 3rd year law students to learn about crime victims’ rights from a theoretical and practical perspective, and to research and write on cutting edge issues to assist lawyers representing crime victims nationwide.

During the 2006 spring semester, six law students researched and wrote on the following issues of national significance to crime victims.

• Developing legal arguments and practical strategies to ensure that a victim is notified and heard at federal pretrial release hearings; • Researching the definition of “materially altered” in the Federal Crime Victims’ Rights Act provision that provides that a victim is “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”; • Analyzing victims’ rights laws in Utah to identify legislative and rule change recommendations that will ensure victims’ rights and interests are protected throughout criminal justice proceedings, not only in substantive law but also in procedural law; • Identifying the state of the nation with regard to victims’ rights in the face of a motion to compel a psychological examination of the victim; • Researching how to best effectuate a victim’s rights in a federal multiple victim cases in light of the provision in the Federal Crime Victims’ Rights Act, that states: “[i]n a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings”; and • Crafting a public policy argument section of a model brief arguing in support of confidential victimadvocate communication.

The excellent work of our students continues to enrich the work of NCVLI and assists attorneys, advocates and victims nationwide.

Case Spotlight State v. Cullen, Nos. 04-01-00316-A, 04-05-00214-A, 05-06-00266-A, 04-1201034-A (N.J. Sup. Ct. Feb. 24, 2006).

The defendant, who pleaded guilty to the murders of 29 individuals and attempted murders of 9 individuals, filed a motion with the trial court to waive his presence at sentencing during the delivery of the victims’ impact statements and at the imposition of sentence. The New Jersey Crime Victims Law Center represented the crime victims in the matter. NCVLI filed an amicus curiae brief arguing that, where the defendant has no constitutional right to absent himself from sentencing and the crime victims’ rights would be undermined by such absence, the court has the discretion to require the defendant to be present. The court agreed, finding that “[p]rinciples of justice and sentencing compel the conclusion that Mr. Cullen should not be granted the opportunity to absent himself from the courtroom when his sentence is pronounced. Absent practical impediments, Mr. Cullen should be compelled to face the Court at sentencing and listen to the words of the court and the loved ones of the victims whom he has so immeasurably and irreparably injured.” The trial court then held that Mr. Cullen must attend the sentencing.

Page 16

© 2006 National Crime Victim Law Institute

Page 19

ncvli.org

NCVLI Newsletter Spring/Summer 2006 Board of Directors Sean Beers, CPA, J.D. Gail Burns-Smith Helene Davis Jim Goelzer Sally Goelzer Candice Kane, Ph.D., J.D. James Huffman, J.D. (ex officio)

The fifth annual NCVLI Crime Victim Law & Litigation Conference “is designed to show how just one case, just one law, or just one person can make a difference for crime victims and change the culture of the criminal justice system”, says NCVLI’s Executive

NCVLI Staff Executive Director Professor Douglas E. Beloof, J.D. Director of Administration Barbara Brady, LCSW Director of Programs Meg Garvin, J.D. Staff Attorneys Kim Montagriff, J.D. Joanna Tucker Davis, J.D. Administration Bea Freilich Jeff Hanson Linda Tran Student Interns Jaime Taft Jennifer Sanders

Director Doug Beloof.

This year’s conference features keynote speakers and presenters who have championed legal changes to protect the rights of crime victims. They include The Honorable Margaret Mahoney, Superior Court Judge of Maricopa County Arizona; Judith Armatta, an attorney, author, lecturer and activist who, from 2002 to 2005, monitored and published commentary on the war crimes trial of Slobodan Milosevic as the Coalition for International Justice’s liaison to the International Criminal Tribunal for the Former Yugoslavia in The Hague; and Charles Song, founder and director of the Legal Advocacy Program at the Coalition to Abolish Slavery & Trafficking (CAST).

Visit the website at www.ncvli.org or call 503-768-6951 for more information about the Conference.

Preparation of NCVLI News was supported by Grant No. 2002-VF-GX-K004, awarded by the Office for Victims of Crime (OVC), Office of Justice Programs, U.S. Department of Justice. The opinions, findings and conclusions expressed in this newsletter are those of the author(s) and do not necessarily represent the official position or policies of the U.S. Department of Justice. OVC is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, and the Office of Juvenile Justice and Delinquency Prevention.

National Crime Victim Law Institute at Lewis & Clark Law School 10015 SW Terwilliger Boulevard Portland, OR 97219

© 2006 National Crime Victim Law Institute

NON-PROFIT ORG. US POSTAGE

PAID

PORTLAND, OR