9th Edition of NCVLI News (2007-2008)

NCVLI News

Protecting, Enforcing, and Advancing Victims’ Rights

Winter 2007-2008

National Crime Victim Law Institute at Lewis & C lark Law School

In This Issue: The Victim Impact Statement at Sentencing a Successful Journey...........1 Richard Pompelio, Esq.

Message From the Director.............................2 Professor Doug Beloof, J.D.

Practical Tips and Legal Strategies for Easing Victims’ Concerns about Testifying............................4 Toby Krauel, J.D.

In the Trenches...................7 Protecting Victim Privacy: The Tool of Anonymous Pleading in Civil Cases.........8 Meg Garvin, J.D.

Case Spotlights..................11 Featured NCVLI Intern/Volunteer...............12 Megan McGill

Crime Victim Law & Litigation Conference Preview..............................12 NCVLI Welcomes Hon. Paul Cassell.............13 Angela Sanders

Lewis & Clark Law School’s Crime Victim Litigation Clinic................14 NCVLI’s Technical Assistance & Brief Bank.....15 State and Federal Clinic & System Demonstration Project Update..................15

The Victim Impact Statement at Sentencing A Successful Journey

Reprinted with permission from Richard Pompelio, Esq., Victim Voice, Vol. 2. Fall 2007, http://www.njcvlc.org/reference/victims-voice/

In 1988 Richard “Dick” Kramer sat quietly in the courtroom as the killer of his daughter Betty Ann was about to be sentenced. At Dick’s request, the prosecutor asked the judge to allow him to give a victim impact statement. The judge refused, and the words that the victim’s father had emotionally struggled for several days to put down on paper were heard by no one. Soon thereafter, Dick became a major part of the victims’ rights grassroots movement in New Jersey, and for many years he remained deeply hurt over the fact that not one of Betty Ann’s survivors was permitted to speak about her at the sentencing, and in the presence, of the man who took her life.

In 1988, giving the victim’s survivors the opportunity to speak at sentencing was within the judge’s discretion. Some permitted it, and some did not. In March 1991, at the height of the victims’ rights movement in New Jersey, the Crime Victims Bill of Rights was amended to give to victims the specific right to deliver an impact statement at sentencing.1 Within less than one year the Victim’s Rights Constitutional Amendment was adopted.2 The purpose of the impact statement law was to afford the victim3 a sense of dignity and respect, and the chance to finally have a voice in this public process. Most judges understood this, some did not; and experiences like that of Dick Kramer and his family continued.4 Cases involving multiple victims can be difficult for the courts; nevertheless, in the sentencing of Charles Cullen in 2006 for killing 29 patients, Somerset County Judge Paul W. Armstrong did a masterful job in giving each of the victim survivors the opportunity to speak in court.5 Contrasted to this is a sentencing in another county that I attended earlier this year involving multiple victims. On more than one occasion the judge warned several of the nervous, highly emotional survivors that if their statements went in a certain direction, “I’ll shut you down.” In a case involving the death of a child earlier this year I experienced a first. Over my objection, the court permitted the defendant’s attorneys to make editing changes to the impact statements of the victim’s grandmother and younger brothers.6 I was advised that in the latter two cases, there was a concern in each that if the offenders became upset with the impact statements, they might withdraw their pleas. That is not, and should not be a factor.

Someone asked me once, “What would be your perfect victim’s rights case?” I responded, “That’s easy, it’s the case where I have to do nothing; just sit back and watch the justice system work the way it was intended to work.” That situation happened recently, and it is important that I talk about it.

When you assist crime victims in every county in New Jersey, as I have over the many years I have been a victims’ rights attorney, you understand that some county prosecutor offices treat victims better than others. I believe that is primarily due to the attitude towards victims of the person in charge, the county prosecutor. Victims from Burlington County have been extremely fortunate with former prosecutor Steven Raymond and present prosecutor, Robert Bernardi.

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© 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008 Board of Directors

Sean Beers, CPA, J.D. Gail Burns-Smith Carl Davis, J.D. Helene Davis James Huffman, J.D. NCVLI Staff

Executive Director Professor Douglas E. Beloof, J.D. Director of Programs Meg Garvin, J.D. Program Manager Whitney Grubbs, J.D. Staff Attorneys Susie Cowen, J.D. Toby Krauel, J.D. Public Relations and Development Officer Angela Sanders Administration Lisa Farrell Jeff Hanson Conference Coordinator Valerie Walters, Independent Contractor Volunteers Scott Klees, J.D. Cristie Prasnikar OVC Grant Preparation of NCVLI News was supported by Grant No. 2002-VFGX-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.

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Message From the Director

by Professor Doug Beloof

Recently, a federal court acknowledged that the criminal justice system is flawed; it “has long functioned on the assumption that crime victims should behave like good Victorian children-seen but not heard.” Kenna v. U.S. Dist. Court for C.D.Cal., 435 F.3d 1011, 1013 (9th Cir. 2006). What this federal court recognized is that despite being the persons most affected by crime, victims’ voices are too rarely heard in criminal courtrooms. One aim of the Victims’ Rights Movement is to clear away legal obstacles to victims’ voices, and ensure that they are heard throughout the process. This issue of NCVLI News includes three legal articles on victims’ voice.

First, in “The Victim Impact Statement at Sentencing A Successful Journey,” guest author New Jersey attorney Richard Pompelio, discusses the importance of affording victims the right to be heard at sentencing, even when a plea is in place. The article addresses both the law of victim impact statements and pays tribute to a criminal court that properly afforded both defendant and victims their rights as it worked to find justice.

In “Practical Tips and Legal Strategies for Easing Victims’ Concerns about Testifying,” Toby Krauel details strategies that advocates and attorneys can employ to help victims overcome the apprehension of having to testify in court.

By easing victims’ concerns, we help victims survive the courtroom experience, thereby ensuring their voices can be heard.

Finally, in “Protecting Victim Privacy: The Tool of Anonymous Pleading in Civil Cases,” Meg Garvin discusses the legal propriety of allowing victims of sexual violence to plead cases anonymously. The article discusses how anonymous pleading helps ensure victims the safe place necessary for them to come forward and report criminal conduct and pursue justice. In this way, pleading anonymously becomes a tool to protect the voice of victims who might otherwise remain silent.

In addition to these legal articles are several spotlight articles that touch on victim voice. Two articles spotlight the work of Lewis & Clark Law School students as they learn about victims’ rights and actively fight for those rights in cases nationwide. The future of victims’ rights is certainly in good hands with these dedicated students.

To achieve justice, victims’ voices can no longer be silenced. I hope you agree that this edition of NCVLI News provides thought-provoking articles and practical tips on how we can move the justice system out of the Victorian age and ensure it hears victims’ voices. © 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008 (continued from page 1)

In the spring of 2006 eleven year old Christopher Williams was walking down the sidewalk with his older brother Gregory and several other friends when a drunk driver in a rented truck jumped the curb and ran Christopher down, killing him. The driver had prior offenses and the senseless death shook up the small Burlington County town of Beverly. The personal and emotional ties to 36 year old Rachel Williams and her two sons appeared to be endless. Students, teachers, neighbors and Christopher’s aunts, uncles and cousins were all devastated over the loss of this beautiful child.

The charges ultimately resulted in a plea bargain being reached. The defendant agreed to plead guilty to vehicular homicide. Under the circumstances the plea bargain was fair and reasonable on both sides, and the victim’s family was spared the emotional trauma of the trial.

For the criminal case of State v. Ollivierre, the sentencing was to be the final memorialization of the plea bargain. But for the victims, it was to be much more. It was the only chance for the loved ones of Christopher Williams to give him a face and a voice in this public judicial process. It was the opportunity for the people of the criminal justice system (the judge, the prosecutor and even the defense lawyer) to help define the constitutional rights of the victims to fairness, compassion and respect. And in this case, the response of the justice system was up to the mark.

There were over 30 of Christopher’s friends and relatives present. When they arrived, the members of the prosecutor’s victim-witness unit were there to find them a separate place and attend to them. The trial prosecutor in the case discussed with Rachel Williams her ability to deliver her victim impact statement, and he and his staff made arrangements to display the photos she brought of her son.7 Framed photos of Christopher and his mom and brother, his football Jersey and a photo collage made by his classmates were put on easels in the courtroom.

Immediately before Judge John Almeida was about to formally call the case, he came down from the bench and took the time to stand in front of each image, and carefully look at it. A family member later commented to me that she was deeply moved over the serious consideration the judge demonstrated.

The court permitted Christopher’s uncle and his teacher to give an impact statement. The defense attorney could have objected over the presence of the football jersey, size of the photos or the fact that Christopher’s uncle and teacher did not technically fall under the legal definition of “victim.” But that would have accomplished nothing more than create chaos and

turmoil in the process, without benefiting his client. So the defense attorney, responsibly and professionally acknowledged the seriousness of the crime and the impact on the victims while focusing on the human side of his client. The prosecutor was passionate, gentle and carried the responsibility on behalf of his client, the State of New Jersey.

Rachel Williams, a spiritual and loving mother, visibly shaken and deeply affected by her loss, spoke of Christopher and the fact that “Two weeks after we buried him we had to celebrate his birthday without him.” Christopher would have been 12 years old. As Rachel struggled to speak, Judge Almeida did something I have never seen a judge do before. He asked her if she wanted some water, and acknowledging her response, he then poured her a glass of water from the pitcher in front of him. When the court attendant reached up to the bench to take the glass to Mrs. Williams, the judge motioned him away. Judge Almeida then stood up, walked down to the prosecutor’s table where Rachel was sitting and handed the water to her with a sense of empathy and compassion that seemed to freeze for a moment the courtroom and everyone in it. We had just witnessed the essence of what victims’ rights is all about.

The defendant was sentenced to eleven and a half years in prison in accordance with the terms of the plea agreement. His rights were fully protected, and Christopher’s family and friends began their first step to healing and surviving their loss.

As attorneys we tend to keep snapshots in our minds of those special times or events in which we were so proud to be a lawyer. February 2, 2007 will always be one of those days for me. On that day, all I had to do was just sit back and do nothing in that small courtroom in Burlington County, New Jersey as I observed and felt a remarkable moment of time when justice had truly shone brightly.

(Endnotes) 1 N.J.S.A. 52:4B-36 (n).

2 N.J. Const., Art. 1, ¶. 22, 1991.

3 The word “victim” under the N.J. Constitution includes the “spouse, parent, legal guardian, grandparent, child or sibling of the decedent in the case of a criminal homicide.” Id. 4 See, e.g., Victim Voice, Volume 1, A Faceless Stranger, Richard Pompelio, 32 (Fall 2006).

5 See Victim Voice, Volume 1, Shattered Trust, Victim Impact of Mary Strenko, 30 (Fall 2006).

6 While this process is a necessity in death penalty cases, it is not common practice otherwise.

7 The prosecutor’s staff deserves special recognition; assistant prosecutor Thaddeus D. Drummond, victim advocates Christina Pressey and Sue Johnston.

© 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008

Practical Tips and Legal Strategies for Easing Victims’ Concerns about Testifying

By Toby Krauel

Victims often feel apprehension and fear over testifying in court.

Frequently the courtroom encounter with the defendant is the first time the victim has seen the perpetrator since the crime occurred. The trial itself creates added pressure with the verdict affecting whether the victim obtains justice and future safety. Additionally, while speaking in public to strangers is always stressful, it is even more challenging for victims who are discussing what is often the most traumatizing event of their lives. An extra concern for the crime victim is the thought of being cross-examined by a skilled defense lawyer who the victim knows intends to attack his or her credibility, memory, character, and choices leading up to the crime.

There are a number of strategies that can be implemented to ease victims’ concerns about testifying.

By filing appropriate motions with the court and preparing the victim for testifying, the practitioner, be it a prosecutor or victim’s attorney, can take proactive measures to protect the victim at trial.

Strategies to implement in the early stages of the criminal proceeding To ease victims’ concerns about testifying, the practitioner should implement a number of strategies that begin early in the litigation and continue throughout the criminal proceedings. As soon as possible the practitioner should provide the victim with an advocate, who is a person in addition to the practitioner who will provide emotional support to the victim, refer the victim to

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outside resources, and be a second voice to explain the proceedings to the victim. One advocate should be assigned to the victim to build a trust relationship and develop continuity. The victim should be advised whether there is a confidentiality statute governing the private communications made by the victim to the advocate. Thirtytwo states have victim-advocate confidentiality laws.1 The advocate and practitioner should make appropriate counseling referrals for the crime victim. Crime victims often have psychological and emotional scars from the crime.

If the victim has taken the remedial steps of obtaining counseling, they will likely be better prepared to assist in the prosecution and face the perpetrator in court. More importantly, the victim will begin the healing process.

In cases where the victim is a child, the practitioner should consider alternatives to open courtroom testimony.

Many jurisdictions have statutes that authorize the advocate to accompany child victims to the witness stand.2 While the advocate’s presence near the witness stand can be comforting to the victim, there are limitations. The advocate cannot prompt or assist the child’s testimony. Further, the advocate’s actions while accompanying the child to the stand will be scrutinized © 2008 National Crime Victim Law Institute

following convictions to determine if such presence violated defendant’s right to a fair trial.3 Motions to consider in the pretrial stages of criminal proceedings In cases where the victim is a child, the practitioner should consider alternatives to open courtroom testimony. One alternative is moving the court to allow the child to testify by closed-circuit television. The child victim can testify by closedcircuit television without violating defendant’s right to confrontation when the court finds face-to-face confrontation with the alleged perpetrator is likely to cause the victim serious emotional distress.4 The trial court must make individualized case-specific findings, and in doing so, must address the particular child’s susceptibility to the particular defendant.5 A second alternative is closing the courtroom. The Sixth Amendment grants a defendant the right to a public trial, but the presumption of openness may be overcome by an overriding interest based on findings that closure is essential to preserve higher values.

Closure of the courtroom may be permissible if an open court would cause substantial psychological harm to the child.6 In addition to alternative means of testifying, practitioners should be aware of options in cases where defendants have waived their right to counsel and are proceeding pro se.

For many victims, especially victims (continued on next page)

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NCVLI News Winter 2007-2008 of sexual or violent offenses, facing cross-examination by the perpetrator can be a traumatic experience. To combat this troubling dynamic, the practitioner should consider filing a motion requiring defendant’s questions to the victim be in writing and read by the court or stand-by counsel.7 Courts have held that to justify limiting a defendant’s right to personal cross-examination, the state or practitioner must show that there is an “important state interest” that outweighs defendant’s right.

Protecting child-witnesses from emotional trauma has qualified as such an interest.8 A comprehensive analysis of limiting the pro se crossexamination can be found in the Spring/Summer 2007 edition of NCVLI News.9 The practitioner should consider filing additional pretrial motions which will protect the victim’s rights to privacy, to be present, and to be treated with dignity, fairness, and respect. The practitioner should also consider filing motions to exclude rape shield evidence or prior convictions, which are irrelevant and potentially embarrassing to the victim. Victims will likely feel more comfortable testifying if they have been treated with dignity and fairness throughout the criminal justice process. Victims whose rights have been violated will walk into the courtroom with a psychological disadvantage compared to those victims whose rights have been protected.

Strategies leading up to and during trial As the trial approaches, the practitioner needs to prepare the victim to testify. Preparation requires multiple meetings between the victim and the practitioner to

build a trust relationship. A single meeting the day before trial is too little too late. During these meetings, the victim should be advised on how to be an effective witness. Victims will make more effective witnesses if they understand it is important to treat the courtroom

In preparation for trial, the practitioner should take the victim to the courtroom to become comfortable with the environment. in a dignified manner; examples to communicate: listening carefully to the question, speaking loudly so the judge and jury can hear the answer, answering only the question asked, not exaggerating facts, and understanding the importance of attitude, facial expressions, and body language. If the victim understands how to be an effective witness, it will ease his or her concerns when entering the courtroom.

In preparation for trial, the practitioner should take the victim to the courtroom to become comfortable with the environment.

The courtroom visit is an ideal opportunity to explain to the victim the roles of the people in the courtroom (e.g. lawyers, judge, jury, bailiff, clerk, and jailor). If possible, the victim should sit in the witness stand and answer some generic questions. One effective method of easing the victim’s concerns for testifying is allowing the victim to ask the practitioner some questions as the practitioner sits on the witness stand. Having the victim watch other trials can also be helpful.

These measures will help the victim realize that the courtroom is a safe

place where evidence is submitted, people talk, and decisions are made.

Victims should be advised that defendants are generally on their best behavior in court. The trial places defendant’s liberty and criminal record in jeopardy. Defendants have likely been advised by their attorneys to avoid bad behavior which can negatively influence the judge and jury who will be deciding their legal fate. Additionally, the practitioner should advise the victim of the measures in place to maintain safety in the courtroom (e.g. metal detectors, guards, and the judge’s emergency buttons). The knowledge of these safety measures will make the victim feel more secure while testifying, and build trust that the practitioner is concerned not only about the past crime but also about the victim’s present and future safety.

Practitioners should always be mindful of creating a safe pathway for the victim to the witness stand.

Victims should always have a safe and private waiting area, limited waiting time, and a pathway to the courtroom not near defendant or defendant’s supporters. In the courtroom, the victim should be able to sit in an area with the advocate and away from defendant’s supporters. Finally, the practitioner should help the victim create an action plan for encountering the defendant, or the defendant’s supporters, in and around the courthouse.

The two most stressful times for the victim during trial are: 1) while testifying, and 2) when the verdict is rendered. During these times, especially in trials of violent offenders, the practitioner should attempt to make the courtroom (continued on page 6)

© 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008 (continued from page 5)

even safer. Increased security can be accomplished by requesting an additional guard from the jail, or asking the law enforcement officer involved with the case to be present.

The law enforcement officer that investigated the case or who arrested defendant has usually proven to the victim that he or she is concerned about the victim and has taken action to prevent future harm. The presence of these officers at stressful times of the trial can ease the victim’s safety concerns.

During testimony, the practitioner should ensure the protection of the victim’s legal right to be treated with fairness, dignity, and respect. Objections by the appropriate lawyer should be made on these grounds if the defense attorney’s tone and questions are unfair or disrespectful. The practitioner should request breaks in the testimony if the victim becomes upset or is subject to lengthy crossexamination.

The victim can be positioned so he or she is facing the practitioner while testifying. The placement of support persons, advocates, and law enforcement behind the practitioner can enhance the victim’s sense of security. Defendant’s constitutional right to confrontation does not require the victim to be staring at defendant during testimony. Many courts have found no confrontation violations where the testifying victim is seated turned away from defendant.10 However, the Confrontation Clause does prohibit barriers or seating arrangements where defendant cannot see the victim.11 Courtroom aids should be used to help describe the crime and deflect

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attention and pressure away from the testifying victim. Diagrams, models, charts, maps, photographs, and other types of evidence used to illustrate and explain testimony may be admissible if they are substantially accurate representations of what the victim is endeavoring to describe.12 Conclusion By implementing the above strategies, the practitioner has taken proactive measures to ease victims’ concerns and enhance their effectiveness as witnesses.

Many thanks to Heidi Nestel of the Utah Crime Victims’ Legal Clinic who co-presented on how to protect victims while testifying at NCVLI’s 2007 6th Annual Law & Litigation Conference.

(Endnotes) 1 See ABA Comm. On Domestic Violence summary of DV/SA advocate confidentiality laws (2007), www.abanet.org/domviol/docs/ AdvocatesConfidentialityChart.pdf.

2 See, e.g., 18 U.S.C. § 3509(i); Cal. Code § 868.5; Col. Rev. Stat. § 16-10-401; and Haw. Rev. Stat. § 621-28.

3 See Sexton v. Howard, 55 F.3d 1557, 1559 (11th Cir. 1995); People v. Dablon, 34 Cal. Rptr. 2d 761, 768-769 (1996); State v. Suka, 777 P.2d 240, 243 (Haw. 1989); Brooks v.

State, 330 A.2d 670, 675 (Md. Ct. Spec. App. 1975); State v. Dompier, 764 P.2d 979, 979 (Or. Ct. App. 1988); and State v. Hoyt, 806 P.2d 204, 210 (Utah 1991).

4 Maryland v. Craig, 497 U.S. 836 (1990).

5 See 18 U.S.C. § 3509.

6 See, e.g., 18 U.S.C. § 3509(e); Waller v.

Georgia, 467 U.S. 39, 44-47 (1984); and Garcia v. Bertsch, 470 F.3d 748, 754 (8th Cir. 2006).

7 See Fields v. Murray, 49 F.3d 1024, 1037 (4th Cir. 1995); Massachusetts v. Conefrey, 570 N.E.2d 1384, 1390-91 (Mass. 1991); State v. Taylor, 562 A.2d 445, 454 (R.I. 1989); and State v. Eastbrook, 842 P.2d 1001, 1006 (Wash. Ct. App. 1993). © 2008 National Crime Victim Law Institute

8 See Fields v. Murray, 49 F.3d 1024, 1037 (4th Cir. 1995).

9 See, e.g., Navigating the Perils of Pro Se: How to Protect your Client from Crossexamination by a Pro Se Defendant, Greg Rios, NCVLI NEWS SPRING/ SUMMER 2007.

10 See United States v. Ellis, 313 F.3d 636, 649 (1st Cir. 2002) (holding special seating arrangement where the victim testified facing the jury with her back to the defendant did not violate the defendant’s right to confrontation where there was evidence of defendant’s attempts to intimidate the witness); People v. Sharp, 29 Cal. App. 4th 1772, 1781 (1994) (disapproved on other grounds) (holding where prosecutor sat or stood next to witness stand so victim could look away from defense table while she testified did not violate the defendant’s right to confrontation); Brandon v. State, 839 P.2d 400, 409-410 (Alaska Ct. App. 1992) (holding victim seated perpendicular to defendant did not violate the defendant’s right to confrontation); State v. Hoyt, 806 P.2d 204, 209 (Utah Ct. App. 1991) (holding defendant’s right to confrontation not violated where court allowed prosecution to switch tables with the defense so the victim, while seated in the witness stand, looked directly at the prosecutor); Stanger v. State, 545 N.E.2d 1105, 1114 (Ind. Ct. App. 1989) (holding where victim seated at angle toward jury and away from the defendant did not violate right to confrontation); and People v.

Tuck, 537 N.Y.S. 2d 355, 355 (N.Y. App. Div. 1989) (holding victim seated at table facing jury did not violate the defendant’s right to confrontation).

11 See Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (holding the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant while they testified violated the defendant’s right to confrontation); State v. Smith, 894 P.2d 974, 977 (Nev. 1995) (holding where the prosecutor positioned his body between the child-victim and the defendant during direct examination denied the defendant his right to confrontation); State v. Casada, 544 N.E. 2d 189, 196 (Ind. App. 1989) (holding placement of chalkboard between the victim and the defendant violated the defendant’s right to confrontation); and People v. Herbert, 117 Cal. App. 3d 661, 671 (1981) (holding configuration of the courtroom preventing defendant from seeing victim violated defendant’s right to confrontation).

12 See 3 Wigmore, Evidence §§ 790-791 (Chadbourn rev. 1970).

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NCVLI News Winter 2007-2008

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 which are not published in any of the reporters. Several of these cases are 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 e-mail us at ncvli@lclark.edu.

Indiana

Oregon Crime victim’s attorney successfully brought a mandamus action challenging the Oregon Parole Board’s failure to comply with victims’ rights at inmate release hearings.

Prosecutor successfully asked the trial court to prohibit a defendant charged with sexual assault from conducting an independent psychological examination of the victim.

Maryland

Arizona Crime victim’s attorney successfully argued against a capital homicide defendant gaining access to the crime scene which was the victim’s home.

Utah In a child sex abuse case, the crime victim’s attorney defeated defendant’s motion for a continuance asserting the crime victim’s right to a speedy trial and disposition.

© 2008 National Crime Victim Law Institute

Victims’ attorney is opposing media’s request to copy videotape of the offender’s confession, arguing that such disclosure is not required by law and would violate the victims’ rights.

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NCVLI News Winter 2007-2008

Protecting Victim Privacy: The Tool of Anonymous Pleading in Civil Cases

By Meg Garvin

Sexual violence exists at epidemic levels in the United States.

According to the Department of Justice, approximately 131,950 rapes occurred annually between the years of 1992 and 2000.1 Despite its prevalence, crimes of sexual violence continue to be among the least reported, least indicted and least convicted crimes.2 In fact, of the 131,950 completed rapes that occurred annually between 1992 and 2000, only 36% were reported to law enforcement.3 According to the National Women’s Study, which surveyed over 4,000 women, 66% of those surveyed indicated they would be more likely to report rapes if their identities would be protected from the media, and 86% thought rape victims “would be ‘less likely’ to report rapes if those victims believed that the news media would disclose their names.”4 These statistics reveal that despite strides to advance societal and justice system responses,5 the statement made by law professor and author Susan Estrich two decades ago continues to resonate with victims: “the law’s abhorrence of the [sexual assailant]. . . has been matched only by its distrust of the victim.”6 In an attempt to alleviate the loss of privacy suffered by crime victims, and to promote the public policy of increased reporting of crime, legislatures and courts have undertaken a myriad of efforts to protect victim identifying information.7 One early approach included enacting statutes that punished the media for publishing a rape victim’s identity, even when lawfully obtained; these broad

statutes routinely failed to meet constitutional scrutiny.8 Laws that have better withstood challenge include those exempting victims from providing personal information when testifying in open court,9 exempting personal information from disclosure under public records disclosure laws,10 and preventing inclusion of victim’s name in criminal justice records.11 This article addresses a complementary approach – allowing anonymous pleading by sexual violence victims who choose to initiate civil actions. After looking at the fundamental rights of the victim, the rules governing proceeding anonymously, and the public’s interest in seeing resolution of such matters on the merits, this article posits that anonymous pleading is proper unless defendant identifies a specific and substantial prejudice.

The Victim’s Fundamental Rights to Privacy and Access to Courts Call for Anonymous Pleading Victims of sexual violence have two fundamental and related rights at stake: the right to privacy and the right to access the court to seek redress. Failure to adequately protect a victim’s fundamental right to privacy negatively impacts his or her fundamental right to access the courts.

While the United States Constitution does not explicitly mention the right to privacy, it is well-settled that such a right exists.

The Supreme Court “has recognized that a right of personal privacy, or a guarantee of certain areas or zones

of privacy does exist under the Constitution. . . . [and is] founded in the Fourteenth Amendment’s concepts of personal liberty and restrictions upon state action.” Roe v. Wade, 410 U.S. 113, 152-153 (1973). See also Lawrence v. Texas, 539 U.S. 558, 565-66 (2003). In addition to this federal constitutional right, additional rights to privacy for victims of sexual violence can be found in state constitutional victims’ rights provisions and statutes.12 Courts and legal scholars have recognized that victims of sexual violence may be re-victimized by the loss of privacy that results from public revelation of their abuse when such revelation is not sought by them. See Andrea A. Curcio, Rule 412 Laid Bare: A Procedural Rule that Cannot Adequately Protect Sexual Harassment Plaintiffs from Embarrassing Exposure, 67 U. Cin. L. Rev. 125, 155-56 (1998) (“There is nothing more intimate than childhood sexual abuse, and nothing as potentially devastating to a plaintiff than to have that abuse publicly exposed.”). It is further recognized that such re-victimization impacts access to courts. See, Jayne S. Ressler, Privacy, Plaintiffs, and Pseudonyms: The Anonymous Doe Plaintiff in the Information Age, 53 U. Kan. L. Rev. 195, 219 (2004) (noting that potential plaintiffs may forfeit opportunity to seek justice out of fear of disclosure and other would-be plaintiffs may not even initiate litigation); Globe Newspaper Co. Inc. v. Clerk of Suffolk County Superior Court, 2002 WL 202464 *6 (Mass. Super. 2002) (noting “[i]f the identit[ies] of these victims are (continued on next page)

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NCVLI News Winter 2007-2008 not protected by the courts, then their access to the courts will be severely diminished, because they will not be able to turn to the courts for relief from or compensation of their emotional injuries without aggravating those same injuries”).

Thus, when the justice system fails to protect victims’ fundamental right to privacy that failure also directly interferes with victims’ ability to exercise their fundamental right of access to courts.

The Rules of Civil Procedure Allow Anonymous Pleading One method of protecting victim privacy is to allow the victim to be known in court by a pseudonym.

Before recommending this approach, the legal propriety of the practice must be determined, which requires analysis of the rules of civil procedure which govern the filing of civil claims.

Federal Rule of Civil Procedure 10(a) provides, in part, “[i]n the complaint the title of the action shall include the names of all the parties.” Civil defendants have often argued that this rule presents a bar to victims of sexual violence proceeding anonymously. Courts have routinely rejected this position.

See, e.g., American Online, Inc. v.

Anonymous Publicly Traded Co., 542 S.E.2d 377, 384 (Va. 2001) (noting that there is no absolute bar to proceeding anonymously, and that “[i]n exceptional cases, the need for party anonymity overwhelms the presumption of disclosure mandated by procedural custom.”) In fact, the United States Supreme Court has given tacit approval to proceeding by pseudonym, see, e.g., Roe v.

Wade, 410 U.S. 113 (1973), and courts nationwide “have increasingly

recognized an exception to [the presumption of disclosure] in limited ‘matters of a sensitive and highly personal nature.’” Heather K. v. City of Mallard, Iowa, 887 F. Supp. 1249, 1255 (N.D. Iowa 1995) (quoting Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974)). In Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), the Ninth Circuit Court of Appeals joined a number of circuits in explicitly recognizing that use of pseudonyms may be necessary in at least three situations: “(1) when identification creates a risk of retaliatory physical or mental harm . . . (2) when anonymity is necessary ‘to preserve privacy in a matter of sensitive and highly personal nature,’ . . . and (3) when the anonymous party is ‘compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution.’” (Internal citations omitted).

Federal Rule of Civil Procedure 10(a) provides, in part, “[i]n the complaint the title of the action shall include the names of all the parties.” Civil defendants have often argued that this rule presents a bar to victims of sexual violence proceeding anonymously.

Following Advanced Textile, use of pseudonyms is permissible “when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Id. See also Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 685 (11th Cir. 2001) (noting that the “ultimate test” is whether a plaintiff

has a substantial privacy right that outweighs the presumption of openness of judicial proceedings); Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981) (same).

Anonymous Pleading is in the Public’s Interest There are two significant public interests at stake in sexual violence cases – open judicial proceedings and resolution of significant cases on their merits. Analyzing these public interests reveals that allowing plaintiffs to proceed anonymously best serves the public’s interests.

First, it is well-settled that the public has an interest in judicial openness based upon the First Amendment right of access, a criminal defendant’s Sixth Amendment right to a public trial, and the general principle that justice is best served by public scrutiny.

See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564-75 (1980) (discussing the presumption of openness). It is also clear that this interest is impacted when the public does not have full knowledge of the participants involved due to anonymous pleadings. Importantly, however, the infringement on this interest is minor.

Party anonymity does not obstruct the public’s view of the issues joined or the court’s performances in resolving them. The assurance of fairness preserved by public presence at trial is not lost when one party’s cause is pursued under a fictitious name.

The crucial interests served by open trials . . . are not inevitably compromised by allowing a party to proceed anonymously. (continued on page 10 )

© 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008 (continued from page 9)

Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981). See also Doe v.

Evans, 202 F.R.D. 173, 202 (E.D. Pa. 2001) (noting in a case where a sexual assault victim was allowed to proceed under pseudonym that “although the public certainly has an interest in the issues Mary Doe’s complaint raises, protecting her identity will not impede the public’s ability to following the proceedings.”).

Second, the public has an interest in seeing cases decided on the merits. See, e.g., Advanced Textile, 214 F.3d at 1073. In contrast to the de minimis impact

Too often victims are forced to a Hobson’s choice: protect your privacy or pursue justice.

anonymity has on the interest in open courts stands the significant negative impact lack of anonymity has on the public’s interest in seeing resolution on the merits. When compelled to disclose their identities victims will often decide not to proceed, thereby thwarting the public’s interest in seeing resolution of the matter on the merits. See, e.g., Roe v. Providence Health System-Oregon, 2007 WL 1876520 *4 (D. Or. 2007) (noting that the public had an interest in seeing a case decided on the merits which might be undermined if plaintiffs were mandated to provide true identity and were thereby deterred from continuing the lawsuit); L.H. A.Z., K.K, & D.R. v.

Schwarzenegger, 2007 WL 662463 * 18 (E.D. Cal. Feb. 28, 2007) (noting that “[w]hen the willingness to file suit is chilled by fear of retaliatory

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action, the public interest in seeing the suit move forward on its merits outweighs the public interest in knowing the plaintiffs’ names.”).

Conclusion Too often victims are forced to a Hobson’s choice: protect your privacy or pursue justice. This choice is often thrust upon victims based upon the mere assertion that anonymity will prejudice the defense. Tools exist within our justice system to avoid this dilemma.

Citing victims’ constitutional and statutory rights to privacy, and access to courts, the public’s interest in seeing resolution of matters on the merits, and the propriety of the practice under the federal rules, attorneys, advocates, and courts should demand defendant identify a specific and substantial prejudice arising from anonymous pleading before a victim’s fundamental rights are sacrificed.

(Endnotes) 1 See Callie Rennison, U.S. Department of Justice, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, (2002), available at www.ojp.gov/bjs/pub/pdf/ rsarp00.pdf.

2 See, e.g., Bonnie S. Fisher, et al., U.S. Department of Justice, The Sexual Victimization of College Women 23 (2000), available at http://www.ncjrs.gov/pdffiles1/ nij/182369.pdf; U.S. Department of Justice, Bureau of Justice Statistics, National Crime Victimization Survey (1994); D.G. Kilpatrick, C.N. Edmunds & A.K. Seymour, Rape in America: A Report to the Nation (April 1992), available at www.musc.edu/ncvc/resources_ prof/rape_in_america.pdf.

3 See Rennison, supra note 1, available at www.ojp.gov/bjs/pub/pdf/rsarp00.pdf.

4 Deborah W. Denno, Perspectives on Disclosing Rape Victims’ Names, 61 Fordham L. Rev. 1113, 1130-31 (1993); D.G. Kilpatrick, C.N. Edmunds & A.K. Seymour, Rape in America: A Report to the Nation (April 1992), available at www.musc.edu/ncvc/ © 2008 National Crime Victim Law Institute

resources_prof/rape_in_america.pdf.

5 Significant progress in recent decades includes the move away from the “utmost resistance” requirement, the diminished existence of a marital rape exception, the passage of rape shield statutes, and the extension or tolling of statutes of limitations.

See, e.g., Dana Vetterhoffer, No Means No: Weakening Sexism in Rape Law By Legitimizing Post-Penetration Rape, 49 St. Louis U. L. J. 1229 (2005); Amanda O. Davis, Clarifying the Issue of Consent: The Evolution of PostPenetration Rape Law, 34 Stetson L. Rev. 729 (2005); Mick Frasca, Tolling the Statute of Limitations in Childhood Sexual Abuse Civil Cases, 11 J. Contemp. legal issues 45 (2000).

6 Susan Estrich, Real Rape 4 (1987).

7 For a discussion of a number of approaches to identity protection see Daniel M. Murdock, A Compelling State Interest: Constructing a Statutory Framework for Protecting the Identity of Rape Victims, 58 Ala. L. Rev. 1177 (2007).

8 See, e.g., Dye v. Wallace, 553 S.E.2d 561 (Ga. 2001) (invalidating Ga. Code Ann. § 16-6-23); Florida Star v. B.J.F. , 491 U.S. 524 (1989) (invalidating Fla. Stat. § 794.03).

9 See, e.g., Del. Code Ann. Tit. 11 § 9403 (providing that the court cannot compel a victim to testify as to his or her residential or business address or place of employment, nor disclose the phone numbers of either); Md. Code Ann., Cts. & Jud. Proc. § 9-501 (providing that the court may prohibit disclosure of victim address and phone number during trial); Minn. Stat. § 611A.035 (providing that victims cannot be compelled to disclose their residential address or employment during testimony).

10 See, e.g., Ala. Code § 15-23-69; Alaska Stat. § 12.61.120; Del. Code Ann. Tit. 11 § 9403; Mich. Stat. Ann. § 28.1287(812).

11 See, e.g., Alaska Stat. § 12.61.140 (preventing disclosure of the victim’s name in cases of kidnapping, first degree sexual assault, and indecent exposure).

12 See, e.g.,18 U.S.C. § 3771; Alaska Const. art. I, § 22 (right to privacy); Ariz. Const. art.

II, § 8 (“No person shall be disturbed in his private affairs”); Cal. Const. art. I, § 1 (“All people are by nature free and independent and have inalienable rights. Among these are . . . privacy”); Ill. Const. art. I, § 8.1(a)(1) (right to be treated with respect for privacy); Mich. Const. art. I, § 24(1) (same); N.M. Const. art. II, § 24(A)(1) (same); Wis. Const. art. I, § 9(m) (same).

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NCVLI News Winter 2007-2008

Case Spotlights United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007).

Defendant, convicted of voluntary manslaughter of his three-month old daughter, appealed the restitution order that required him to pay for the victim’s future lost income. Defendant argued: 1) the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, does not allow for the inclusion of future lost income in restitution orders; 2) an order for future lost income is improper because it is speculative; and 3) an order of this kind, if appropriate, must be based on gender and race-based statistics and because the trial court failed to incorporate these the order was impermissible. The court affirmed the order, holding that the plain language of the MVRA allows restitution orders to include future lost income, and that the trial court exercised its “abundant discretion” when it crafted a restitution order including the victim’s future lost income using “well-recognized industry standards and norms.” The court further held that the trial court was within its discretion in rejecting application of gender and racial distinctions.

State v. Murtagh, 169 P.3d 602 (Alaska 2007).

Criminal defense attorneys and a defense investigator challenged as unconstitutional certain aspects of Alaska’s Victims’ Rights Act. Specifically challenged were provisions requiring that defense representatives: 1) tell the victim that he or she need not talk with the representative, and tell the victim that he or she may have a prosecuting attorney present during the interview; 2) state that the interview will be electronically recorded; and 3) adhere to additional constraints where the accusation involved a sexual offense. The court held that the provisions, as written, violated procedural due process, concluding that the provisions “unjustifiably interfere with defense investigation” by presenting a risk of suppressing sources of evidence that otherwise would be available to defendant.

Pena v. People, 173 P.3d 1107 (Colo. 2007).

responses rights and resources for crime victims

Defendant sought certiorari review of his conviction, arguing that the court of appeals erroneously applied the doctrine of forfeiture by wrongdoing when it affirmed admission of the murder victim’s out-of-court statements into evidence at his sexual assault trial. Defendant further argued that even if he had forfeited his right to confrontation, the victim’s statements should have been barred as hearsay. Determining that the doctrine of forfeiture by wrongdoing requires proof by a preponderance of evidence that the defendant acted with the intent to deprive the criminal justice system of evidence, the court found defendant’s requisite intentConference had National Center forthat Victims of Crime ♦ National been established at his murder trial, and, accordingly, June the absence of a ♦ pretrial evidentiary 2-4, 2008 Portland, Oregonhearing to address the forfeiture issue constituted harmless error. Noting that a finding forfeiture does General’s not automatically preclude Co-Hosted withofthe Oregon Attorney Sexual Assault Task Force objections on hearsay grounds, the court further held that the victim’s statements were admissible hearsay.

Featured Workshops for Law Enforcement: • • • • •

responses rights and resources for crime victims National Center for Victims of Crime ♦ National Conference June 2-4, 2008 ♦ Portland, Oregon Co-Hosted with the Oregon Attorney General’s Sexual Assault Task Force

Featured Workshops for Law Enforcement: •

False Allegations, Case Unfoundings, and Victim Recantations Victim Interviewing and Report Writing Immigration Laws and Relief for Victims of Crime Civil Remedies for Survivors of Sexual Assault Supporting the Reporting Sexual Assault Victim and more!

To register or for more information, visit

www.ncvc.org.

© 2008 National Crime Victim Law Institute

False Allegations, Case Unfoundings, and Victim Recantations

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I had never heard of victims’ rights when my friend suggested I apply for the internship at NCVLI. I was surprised that there was an organization dedicated to them, because I had assumed that the sympathetic nature of victims assured them priority in the criminal justice system—even the word “victim” evokes sympathy. However, having had some prior experience interacting with domestic violence survivors, I was interested to learn more and applied for the job.

NCVLI Student Intern/Volunteer Megan McGill

Perhaps needless to say, during the course of my internship my eyes were opened wide.

From the start, my experience with NCVLI was a positive one. Fully expecting my first interview for a legal job to consist of interrogation by an intimidating suited attorney, my interview instead involved meeting two genuine, enthusiastic, and highly intelligent attorneys who have since become two of my biggest role models. I had no idea how the evolution of the state and the defendant as the only “parties in interest” had pushed the most directly injured party into the shadows. I had never realized to what extent the system could cause a victim further suffering.

I worked as an intern for NCVLI for a year, and continue to do as much volunteer work as I can. I have worked on many different projects, primarily researching state victims’ rights laws for general educational purposes, to be used in the drafting of amicus briefs, or in response to outside inquiries. One of the projects which stands out most in my mind was researching and helping to write an article on a case in which a Maryland court held that there could not be a rape where a victim initially consented to intercourse but was forced to continue after she withdrew consent. Another time I researched rape trauma syndrome and learned that frequently the psychological response and behavior of a rape victim is the opposite of what one might intuitively expect, which can create credibility problems for legitimate victims. Yet another time I did research on the issue of whether a victim had the right to have news media cameras removed from the courtroom when she testified against her rapist in a high profile case. Additionally, I took a class on victims and a victim clinic (both taught by NCVLI staff). For the clinic, I researched the meaning of a victim’s right to “fairness.”

Although issues such as these that I have researched often seem to me to have obvious solutions in terms of fairness, I have learned that in reality what seems fair is not always the outcome; as a result, there has grown in me the desire to work toward improving the system. My experience with NCVLI has been wonderful; the work is meaningful, and I have been very fortunate to interact with such a fantastic group of mentors who are dedicated and hardworking, but never too busy to discuss an issue with a student. I hope to continue working in this exciting, rapidly evolving field.

2008 The Conference is in Portland, Oregon, at the Marriott Portland Downtown Waterfront (1401 SW Naito Parkway) on Friday and Saturday, May 30 and 31, 2008.

Visit www.ncvli.org or call 503-768-6951 for more information.

This conference is supported by Grant No. 2007-JA-CX-K001 awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. Points of view in these materials are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

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Crime Victim L aw & Litigation Conference Preview The seventh annual NCVLI Crime Victim Law & Litigation Conference is an ideal opportunity for attorneys, advocates, prosecutors, and other law enforcement and criminal justice professionals to meet, network, and increase their knowledge of victim law. This year’s theme, “Opening the Doors: Victim Access to Justice,” recognizes that barriers in the criminal justice system have long prevented meaningful access for victims. The conference highlights remedies for this lack of access so that victims can become active participants.

The conference’s keynote speakers and presenters include Oregon Attorney General Hon. Hardy Myers; Oliver Smith, Sr., Victim/Survivor, Founding Member of the Washington, DC Chapter of the Concerns of Police Survivors and Member of the Board of Directors at Maryland Crime Victims’ Resource Center, Inc.; Roberta Roper, Crime Victim Advocate, Chair of the Board of Directors at Maryland Crime Victims’ Resource Center, Inc.;former Federal District Court Judge Hon. Paul Cassell; Steve Twist, Founder and President of the Arizona Voice for Crime Victims; Sandy Bromley, Senior Program Attorney for the Stalking Resource Center; Catherine Carroll, Legal Director at the Washington Coalition of Sexual Assault Programs; and Robin Runge, Director of the Commission on Domestic Violence at the American Bar Association. © 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008

NCVLI Welcomes Hon. Paul Cassell

By Angela Sanders

NCVLI welcomes Judge Paul Cassell, who contracted with NCVLI this past January to provide legal expertise and guide strategic litigation in victims’ rights both at the state and federal levels. Cassell is a self-proclaimed “crusader” with a streak of passion that has led him to take on the Miranda rules and to step down from his position as a federal judge to work on behalf of crime victims.

Cassell’s passion for helping the underserved might come in part from being the oldest child of a mother who started a shelter for victims of domestic violence in his hometown in Idaho. His father worked in college administration. While watching the television series Perry Mason as a teen, Cassell found his calling to be a lawyer.

Cassell excelled in debating in high school and interrupted his college years at Stanford University to study at Western Washington University because of its celebrated debate team. He graduated from Stanford with a B.A. in 1979 and a J.D. in 1984. After law school, Cassell first clerked for Judge Antonin Scalia, who was then a judge for the U.S. Court of Appeals for the District of Colombia, and later for Supreme Court Chief Justice Warren Burger. His next job was as Associate Deputy Attorney General at the Department of Justice for two years, then Assistant United States Attorney in Virginia for three years, then law professor at the University of Utah’s law college.

Hon. Paul Cassell, former federal judge and professor of law at the University of Utah

In 2002, President Bush nominated and the United States Senate confirmed Cassell’s appointment as a federal district court judge for the District of Utah. The Deseret Morning News reported that he was known both as “the brightest federal trial court judge west of the Mississippi,” and a “renegade judge.” Cassell’s decisions from the bench often broke new ground in criminal law, such as declaring federal sentencing guidelines unconstitutional, including future lost wages of a murdered infant in a restitution order, denying the government’s motion to dismiss charges until it was clear that the victim had been conferred with and the victim’s views on the dismissal were communicated to the court, and declaring that a victim’s right to be heard at sentencing included the right to be heard both in writing and orally.

Being a federal judge would be the pinnacle of most careers. Not for Cassell. After five years on the bench he stepped down. He wanted to move away from “retail level” cases and influence the evolution of a whole branch of law by working on behalf of crime victims.

Cassell is recognized for the depth of his knowledge of victims’ rights and is the only victims’ rights expert with experience as a federal judge. His past work includes representing victims of the Oklahoma City bombing and breaking new ground on setting the level of restitution for victims.

Since stepping down from the bench, Cassell has wasted no time getting back to working for victims. He is representing a family whose daughter was killed in the Trolley Square shootings in Salt Lake City. Cassell is fighting for the family to be declared victims of the man who illegally sold the Trolley Square shooter the gun he used to kill their daughter and others. While a panel of the Tenth Circuit Court of Appeals initially ruled against Cassell, he is using his litigation prowess to seek further review. He is doing this work pro bono, saying that “victims shouldn’t be victimized again by having to pay.”

According to NCVLI’s Director of Programs, Meg Garvin, “Judge Cassell has a brilliant legal mind for any area of law, and he’s chosen to work for victims’ rights. We’re very lucky to have him.”

© 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008

Lewis & Clark L aw School’s Crime Victim Litigation Clinic NCVLI is committed to educating the legal profession on victim law, and that education begins with the Crime Victim Litigation Clinic at Lewis & Clark Law School in Portland, Oregon. In the Clinic, the lawyers of NCVLI work with law students each semester to support crime victim attorneys nationwide through legal research and writing. In Spring 2008, six students are working on three amicus curiae briefs in critical victims’ rights cases. Not only is it inspiring to work with dedicated, intelligent law students, but their work is invaluable to protecting and enforcing victims’ rights nationwide.

Back Row: Dan Pachico, Toby Krauel (Instructor), Andrew Teitelman (Instructor), Benjamin Lull, Melanie Kebler, Michael Johnson | Front Row: Beth Jarvis, Meg Garvin (Instructor), Katie Carson

Summaries of the three cases follow: People v. Superior Court, --- P.3d. ---, 2007 WL 2852596 (Cal. Ct. App. Oct. 3, 2007). Defendant, who was driving under the influence of alcohol, crossed the center line of a highway and hit two people riding an oncoming motorcycle. One victim was killed, and the other seriously injured. Defendant was convicted of vehicular manslaughter and driving under the influence with bodily injury. Following a lengthy sentencing hearing, at which the victim addressed the court, defendant was denied probation and sentenced to two years in prison. Shortly thereafter, the sentencing judge recalled the matter and ordered defendant returned from prison for a re-sentencing at which the judge intended to place defendant on probation. At the re-sentencing, the court did not allow the victim to address the court, and released defendant, sentencing her to probation. On appeal, a split court held the lower court did not violate the victim’s right to be heard at sentencing because it had allowed victims to “reasonably express” their views at the initial sentencing. NCVLI will file an amicus brief with the California State Supreme Court, arguing that the trial court violated the victim’s state constitutional right to be heard at sentencing. Law students Daniel Pachico and Mike Johnson are working on this case.

State v. WBAL, No. 1983, appeal docketed (Md. Ct. Spec. App. Oct. 24, 2007). Defendant was convicted of First Degree Premeditated Murder and First Degree Premeditated Rape. During the criminal investigation, the police recorded video- and audio-taped confessions in which the defendant graphically depicted his crimes. At trial, these recordings were played in open court with the media and the victim’s parents present; the victim’s young child was intentionally not present and has been continuously shielded from the graphic information. At the conclusion of trial, a TV station intervened in the case to obtain copies of the tapes. The court granted the intervention. The state has appealed, and the victim’s daughter and other surviving family members are participating in the appeal. NCVLI participated as amicus, working to protect the victims’ rights to respect, dignity, courtesy, and sensitivity afforded by the Maryland Constitution. Law School Students Katie Carson and Melanie Kebler worked on this case.

State of Utah v Worthen, --- P.3d ----, 2008 WL 215275 (Utah Ct. App. 2008). In the trial court, defendant moved the court for an in camera review of the minor victim’s counseling records from three separate locations where she received counseling both prior to and after her report of sexual abuse. The state opposed the request, arguing that the records were privileged under Utah’s therapist/patient privilege, and that the defendant’s request was insufficient to pierce such privilege. The trial court ruled in defendant’s favor, holding that he had made a sufficiently specific showing to require a review to determine if evidence existed in the records that related to the victim’s motive to lie. The court of appeals affirmed the trial court, and the state petitioned for a writ of certiorari from the Utah Supreme Court. NCVLI will submit an amicus curiae brief in the Utah Supreme Court, arguing that the victim’s rights to privacy, protection, and fairness, coupled with the importance of maintaining the confidentiality of victims’ counseling records, requires reversal. Law School Students Ben Lull and Beth Jarvis are working on this case.

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© 2008 National Crime Victim Law Institute

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NCVLI News Winter 2007-2008

NCVLI’s Technical Assistance and Brief Bank NCVLI staff attorneys have recently analyzed these and other legal issues: Whether: • a California victim who was heard at an initial sentencing proceeding has a right to be heard two months later at a re-sentencing, even absent a showing that the victim would say something “new.”

• the Forfeiture by Wrongdoing Doctrine requires specific intent, or whether the mere conduct of silencing or absenting a witness is sufficient for defendant to forfeit his or her constitutional right to confront the witness.

• victims of sexual abuse can file a civil action against their perpetrator anonymously or if they are required to publicly disclose their real names pursuant to Federal Rule of Civil Procedure 10(a).

• an Oregon restitution order can be re-opened to account for costs incurred post-order by the victim but directly related to the criminal conduct.

• the media has the right to a copy of defendant’s videotaped confession that contains graphic details of a rape and murder, or whether a victim’s rights can foreclose such disclosure.

• a victim shot and killed by a juvenile is also properly defined as the victim of the defendant who illegally sold the handgun to the juvenile shooter.

• an Oregon victim who was not provided adequate notice or opportunity to be heard at a parole board release hearing has standing to seek a re-do of the proceeding.

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 issues listed above are a sampling of some of NCVLI’s work since our last newsletter. If you are an attorney or advocate seeking technical assistance, please contact NCVLI at 503-768-6819, or at www.ncvli.org.

State and Federal Clinic & System Demonstration Project Update In Spring of 2003, NCVLI began the Demonstration Project as a major step toward ensuring that victims’ rights are consistently enforced. The Project, funded through a grant from the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice, identifies and implements promising practices in enforcement and advancement of victims’ rights and provides training and education on these rights. Nearly five years later, the Project’s pro bono legal clinics have received requests for legal assistance from more than 4000 victims and have provided direct legal services to 774 victim clients. NCVLI and the clinics together have trained a staggering 13,055 individuals, including attorneys, judges, victim advocates, and law enforcement, on victims’ rights and the services available to victims. NCVLI has provided more than 250 responses to substantive legal technical assistance requests from attorneys, advocates, and others across the country. In addition, through the Project’s National Alliance of Victims’ Rights Attorneys (NAVRA), 393 attorneys in 39 states and the District of Columbia have been mobilized and connected to create a necessary national network of pro bono legal services for victims.

As the end of the 5-year Project approaches, NCVLI is using the lessons learned and promising practices identified to create a comprehensive blueprint, called the Guide to Enforcement of Victims’ Rights, for state and federal jurisdictions to follow in developing additional crime victims’ rights legal clinics. NCVLI hopes the Guide will be an important resource for the victims’ rights movement as we march down the road toward full and complete enforcement of these rights. © 2008 National Crime Victim Law Institute

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NCVLI Newsletter Winter 2007-2008

NCVLI 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 newsletter ideas and/or stories to: NCVLI Newsletter Lewis & Clark Law School 10015 SW Terwilliger Blvd.

Portland, OR 97219 Tel: 503-768-6819 Fax: 503-768-6671 Email: ncvli@lclark.edu

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

Š 2008 National Crime Victim Law Institute

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