Volume1

Protecting, Enforcing and Advancing Victims' Rights

NCVLI News

Lewis & Clark Law School ncvli.org

fall/winter 2003 Publication

NCVLI News is a biannual publication of the National Crime Victim Law Institute.

To reach the staff of the National Crime Victim Law Institute, contact: NCVLI Lewis & Clark Law School 10015 SW Terwilliger Boulevard Portland, OR 97219 Tel: 503.768.6819 Fax: 503.768.6671 ncvli@lclark.edu www.ncvli.org Contents NCVLI Expansion ...................................Page 1 Director's Message ...................................Page 2 Center for Law and Public Policy on Sexual Violence .................................. Page 3 National Alliance of Victims Rights Attorneys ...................................Page 3 Standing in Trial Courts..................... Page 4 Practice Points ...................................Page 4 Advocate Spotlight: DWI Resource Center ...................................Page 6 A Victim's Story ...................................Page 8 Contributors Editor: Julie Hawkins Editorial content: Linda Atkinson Professor Douglas Beloof, Esq. Lee Gadinas, Esq. Meg Garvin, Esq. Liani Reeves, Esq. Additional editing

by NCVLI staff.

WITH EXPANDED SCOPE AND STAFF, NCVLI LOOKS FORWARD TO ITS FOURTH YEAR Increasing membership of attorney network is next big goal

by Lee Gadinas, NCVLI Deputy Director

The National Crime Victim Law Institute at Lewis & Clark Law School began in June 2000 with a Congressional appropriation, received due to the hard work and commitment of Senator Dianne Feinstein of California, Senator Jon Kyl of Arizona, and Senators Gordon Smith and Ron Wyden of Oregon. Now in its fourth year, the Institute continues to add staff and expand its work.

The directors of NCVLI have been steadily laying the foundation for the organization by establishing a Board of Directors, securing grants from the Office for Victims of Crime and the Office on Violence Against Women, acquiring non-profit status, and hiring attorneys and administrative support staff.

Establishing a Mission and a Center NCVLI's mission statement is “The National Crime Victim Law Institute actively promotes balance and fairness in the justice system through crime victim-centered legal advocacy, education and resource sharing.”

To this end, NCVLI is working on several projects.

As a national organization, NCVLI receives numerous requests for legal assistance on current court cases from attorneys, victim service providers and crime victims from across the country. To handle the increasing number of requests, staff members developed an online intake system as a way to respond to and track these inquiries. (This system can be accessed on the NCVLI website, following links on the "Contacting Us" page.) NCVLI attorneys are able to determine what type of assistance they can provide — such as performing research, writing and editing briefs, submitting amicus briefs, making referrals — based on completed questionnaires.

Some cases that come to NCVLI's attention provide research material for students enrolled in the Crime Victim Litigation Clinic.

© 2003 National Crime Victim Law Institute

Under the guidance of NCVLI Associate Director and Clinical Professor Gina McClard and NCVLI staff attorneys, law students work on litigation support projects individually or as a team. Their research and writing projects contribute to NCVLI's appellate brief and legal memorandum bank.

Through the newly formed Center for Law & Public Policy on Sexual Violence (CLPPS) a project of NCVLI, students may also have the opportunity to work on legal, legislative and policy aspects of sexual assault, stalking and domestic violence cases. The Center was created in response to the need, on a national level, for adequate legal and public policy resources that focus on survivors of sexual violence. (For more information on CLPPS, see page 3.)

The OVC/NCVLI State and Federal Demonstration Project Beginning in 2004, under a cooperative agreement with the Department of Justice Office for Victims of Crime, NCVLI will establish five state victim clinics in different regions of the United States. The goal of the OVC/NCVLI State and Federal Demonstration Project is to establish nine legal clinics — eight state sites and one federal — over a five-year period.

Once the site grants are awarded, NCVLI and OVC will develop educational and technical assistance materials for the newly formed clinics. NCVLI personnel will offer statespecific training on victims' rights laws to attorneys in these areas so that they may assist the regional clinics on a pro bono basis.

The Victim Legal Assistance Project (VLAP), a clinic that was created jointly by Arizona Voice for Crime Victims and Arizona State University in cooperation with NCVLI, will be the model for the new clinics.

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fall/winter 2003 Preparation for NCVLI News was supported by Grant No. 2002-VF-GXK004, 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.

NCVLI Staff Director Professor Douglas Beloof Associate Director Clinical Professor Gina McClard Deputy Director Lee Gadinas Staff Attorneys Meg Garvin, Jessica Mindlin, Liani Reeves Joanna Tucker Davis Administration: Bea Freilich, Julie Hawkins of counsel: Steve Twist Board of Directors Sean Beers, J.D., CPA Gail Burns-Smith Collene Campbell Gary Campbell Helene Davis Jim Goelzer Sally Goelzer James Huffman, Lewis & Clark Law School Dean (ex officio) Candace Kane, Ph.D., J.D. Judge William Keys (Chair)

MESSAGE FROM THE DIRECTOR by Professor Douglas E. Beloof Every one of you is important.

There are too few legal advocates for survivors of crime. Whether assisting survivors of homicide, sexual assault, domestic violence or other serious crimes, the work of legal advocates is critical to those who face challenges to their rights of participation, privacy and protection. Survivors face intrusions into their mental health and other confidential records; they are barred from speaking at sentencing and other hearings; and plea agreements are reached without the consultation or input of the victim. Direct challenges to victims' constitutional rights and statutory protections of confidentiality are numerous and on the rise. It is a critical time for the viability of victim laws, because a lack of legal advocacy increases the likelihood of challenges to these laws.

NCVLI was formed after initial meetings with attorneys with experience in defending victims’ rights.

These formative meetings made clear that isolation from one another as professionals, from the knowledge and wisdom that each person held, was a challenge that many attorneys shared.

Many of you have worked in the victim law arena, unaware of other attorneys across the nation who were engaged in similar work. As a result, you did not pick up the phone to talk about an issue. You did not look to see if someone else had filed similar motions, memoranda or briefs.

Victims’ rights lawyers can appreciate the importance of laws safeguarding confidentiality for victims of sexual assault. Attorneys representing victims of sexual assault and domestic violence can apply victims’ rights laws to their clients' cases. There is an opportunity to use the knowledge and legal tools of other litigators in your work, no matter what your focus or specialty.

At one time, there was no community of crime victim

Every time you ask another attorney for help solving a problem, you help build the community. litigators, however, by graciously sharing your expertise and legal skill with other victim lawyers, you help build the community.

Every time you listen to and learn from another crime victim litigator, you build the community. Every time you share a motion, a memorandum or a brief, you build the community. Every time you ask another attorney for information or help solving a problem, you build the community.

less if they cannot be enforced in the courts. There can be no enforcement without a committed group of attorneys. Attorneys can be their most effective in defending these rights with the shared information and experience of others. At least where litigation is concerned, there is strength in numbers. The more minds that are working on an issue, the more likely the most effective solution will be found.

As Director of NCVLI, I am inspired by the commitment shown by attorneys to crime survivors and encouraged that there are more of you than we at NCVLI imagined.

I would like to close by asking you to help empower this community that we have begun. Please, join the National Alliance of Crime Victim Attorneys (NAVRA).

By joining NAVRA, you ensure the presence and growth of a community of victims' rights lawyers.

(Information about NAVRA appears on the following page.)

There will come a day when courts routinely consider the interests of survivors in ruling in criminal cases.

When that day comes, all of you can say proudly that you helped make it happen.

Rights of privacy, participation and protection are meaning-

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Education

THE CENTER FOR LAW AND PUBLIC POLICY ON SEXUAL VIOLENCE SETS AGENDA

by Liani J. Reeves, NCVLI Staff Attorney

The National Crime Victim Law Institute (NCVLI) is pleased to announce its new project, the Center for Law and Public Policy on Sexual Violence (CLPPS).

The goal of the project is to improve the way civil and criminal courts respond to survivors of sexual violence To do this, CLPPS is approaching the problem of sexual violence from a variety avenues (see sidebar).

Shifting the Focus CLPPS evolved from NCVLI’s Violence Against Women Project, which focused on cases involving domestic and sexual violence. During the course of this project, NCVLI received numerous requests for technical assistance from

state sexual coalitions and survivors of sexual violence.

These requests underscored the need for a national center that would focus solely on the legal and policy issues surrounding sexual violence.

CLPPS was created in response to this need.

Clinical Professor Gina McClard, Senior Staff Attorney Jessica Mindlin, and Staff Attorney Liani Reeves form the backbone of CLPPS. This team of attorneys brings more than four decades of experience to the cause of eliminating violence against women.

A Full Program CLPPS is currently steering the Sexual Assault Legal Analysis Project, which will be a compilation and analysis of

rape laws nationwide, and the Sexual Assault Privacy Project, the continuation of a two-year effort to analyze and recommend improvements to laws pertaining to rape victim confidentiality privileges, media privacy, rape shield laws and pre-trial discovery issues. CLPPS also engages in pro bono impact litigation, providing technical assistance to lawyers who are working to advance the law for sexual assault survivors.

A grant from the U.S. Department of Justice Office of Violence Against Women (OVW) allows CLPPS to provide legal technical assistance and expert advice specifically to sexual assault Continued on Page 7

Join NAVRA Now! At this point in time, the victims’ rights movement is being pushed by a small number of attorneys across the country. While these attorneys are passionate, active and committed to helping victims in the criminal justice system, the simple fact is more attorneys are needed to help the cause.

You can help by joining the National Alliance of Victims’ Rights Attorneys (NAVRA). The purpose of NAVRA, as a professional organization of attorneys, is to make quality legal services for crime victims readily available and to create efficiencies in legal service through shared knowledge and communication. Just imagine the effect on the criminal justice system when there are attorneys in every state actively litigating the rights of crime victims.

NCVLI will help NAVRA attorneys by providing education and training materials; legal reference manuals and sample forms readily adaptable by attorneys to the pleading format of a particular state; and technical expertise of NCVLI’s staff attorneys. The more legal help provided to victims now, the sooner there will exist a criminal justice system that accepts victims as legitimate participants in the criminal process. For a fee of $35, membership benefits include: * Direct access to NCVLI’s technical assistance staff * Access to NCVLI’s library of briefs and legal research memos * Legal reference materials * Biannual newsletter * 10% tuition discount for NCVLI trainings and conferences * Dedicated website (under construction) * Email Listserv (under construction) Use the enclosed membership card and mail to the National Crime Victim Law Institute or contact us for more information (navra@lclark.edu). Become a leader in the victims’ rights movement!

CLPPS is collecting materials to educate the legal community about sexual assault laws and victims’ rights and is providing law students with educational opportunities through Lewis & Clark Law School’s Crime Victim Litigation Clinic.

Litigation CLPPS conducts impact litigation on a pro bono basis to advance the law for sexual violence survivors and provides technical assistance to other attorneys working toward the same goal.

Public Policy CLPPS provides a national perspective on policy and legal issues pertaining to sexual violence, working in collaboration with coalitions to develop a vision for the antisexual violence legal movement.

Training CLPPS co-sponsors the annual Law & Policy Colloquium for Sexual Assault Coalition Attorneys and offers trainings on sexual violence issues in various forums.

Legislation CLPPS serves as a resource to state and federal legislators, lobbyists and others working to advance the law for sexual violence survivors.

Model Protocols CLPPS is developing model protocols for those working in the anti-sexual violence arena.

Scholarship Through research and scholarship, CLPPS is critically examining how the judicial system responds to sexual violence.

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Attorney Practice Pointers: Trial Court Standing • File a Notice of Appearance identifying yourself as the victim’s attorney as early as possible in the case.

• Simultaneous with filing the Notice of Appearance, file a Notice of Invocation of all Victim Rights, statutory and constitutional, specifically identifying any that you have particular concerns about (i.e. the right to confer with the prosecution prior to final disposition).

• If the trial court dismisses the Notice of Appearance based on a lack of standing, immediately file a Motion for Reconsideration with the trial court. NCVLI can assist in collecting case law to argue against the dismissal.

The Motion for Reconsideration is necessary to ensure that you have exhausted all of the lower court remedies.

• Even while pursuing the Motion for Reconsideration, you may want to appeal to the trial court’s discretion to allow you to appear as an amicus curiae during the proceedings to protect the interests of the victim.

STANDING IN TRIAL COURTS: APPROACHES TO VICTIM PARTICIPATION

by Meg Garvin, NCVLI Lead Staff Attorney, and Professor Douglas Beloof, Director

A victim asks her attorney to represent her in a criminal case so that she can invoke each of her state constitutional and statutory victim rights. She also wishes to have as much confidentiality as possible.

The attorney agrees, filing an appearance and asking the court to protect all of the victim’s rights. In response, the trial court judge holds that “victims have no standing in a criminal case,” essentially dismissing the victim, and her attorney, from the trial level process.

Should the victim accept the decision? Simply put – no.

Essentially, trial level standing is the legal right of a person to stand up in court and speak, defending or asserting his or her legal rights. Historically, even after crime victims were no longer the prosecutors of their own cases, they had standing in criminal trial courts. Despite confusion in courts today, victims continue to have standing.

Trial level standing for crime victims can be grouped into five categories: 1) traditional direct standing; 2) standing based upon a victim’s direct interest in an issue; 3) standing based on modern victim rights laws; 4) permissive standing; and 5) private prosecution. Each of these categories of standing provides an avenue for pursuing victim participatory rights in the trial court.

Direct Standing By long-standing legal precedent, non-parties to a criminal case, including victims and witnesses, have had trial level standing to object to discovery requests and orders, and to challenge subpoenas for private or privileged information.

Despite the gradual ex-

An appeal to the trial court based upon the justness of allowing the victim to participate as amicus may open an avenue for victims’ voices in the courtroom. clusion of victims from the criminal court system that occurred from the mid-19th century through the 1970s, this type of trial-level standing continues to exist today. It is particularly important in protecting a victim's confidentiality because breaches of confidentiality are commonplace. Based upon this standing, non-parties, including victims, may file motions and make arguments to trial courts asserting, for example:

evidentiary privileges in response to discovery motions; motions to quash discovery requests or a trial court discovery order; and challenging a trial court’s jurisdiction over crime victims or their property and effects.

Despite the well-recognized nature of this standing, advocates must still argue for it. For instance, NCVLI is currently working on a case that was brought to its attention by Wendy Murphy, Esq. (The NCVLI brief will be coordinated with the initial amicus brief being prepared by Ms. Murphy and Ms. Barbara Berenson.)

In this case, the defendant sought the counseling records of the children he was accused of sexually abusing. The trial court rejected the defense’s request, and the defendant appealed. The court of appeals affirmed the trial court in Commonwealth v. Pelosi, 771 N.E.2d 795 (Mass. Ct. App. 2002), and the case is now pending before the Massachusetts’ Supreme Judicial Court.

NCVLI, with Gregory D. Cote, Esq. of Gadsby Hannah LLP, will file an amicus curiae brief with the Massachusetts Supreme Judicial Court before the end of the year asking the court to affirm the trial court’s ruling, thereby recognizing that victims have standing to defend evidentiary privileges and protect their privacy rights.

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fall/winter 2003 Derivative Standing The second type of trial level standing is found in situations where victims do not personally hold an evidentiary privilege, but have a substantial interest in evidentiary protections.

Rape shield laws are the best example of this type of standing, and the preeminent case is Doe v. United States, 666 F.2d 43 (4th Cir. 1981). In Doe, the trial court granted the defendant’s motion to admit evidence of, and allow cross examination on, an alleged rape victim’s past sexual behavior. The alleged rape victim appealed this decision, and the defendant argued that the court lacked jurisdiction to hear the appeal. Rejecting this, the court found the victim had the right to appeal the decision based upon the federal rape shield law.

While standing based upon such evidentiary protections has not yet been fully recognized in all jurisdictions, logic dictates that when a victim has a direct and personal stake in an evidentiary ruling, such as a privacy interest, the victim ought to have standing. This line of legal advocacy has the potential to expand victim litigation. For example, laws concerning the filming of a victim in the courtroom or the failure to withhold a victim's contact information in trial testimony may be contestable by the victim at the trial court level.

Standing to Enforce Modern Victims' Rights Laws

The third type of trial level standing involves modern statutes and constitutional amendments that provide victims with the rights of participation, privacy and protection.

The most thorough treatment of a victim’s trial court standing based in modern law is found in In the Interest of K.P., 709 A.2d 315 (N.J. Super.

Ct. Ch. Div. 1997). In K.P., the court faced an issue of first impression – whether a crime victim has standing to oppose a newspaper’s motion to open a closed juvenile proceeding to the public. The court thoroughly reviewed United States’ Supreme Court law on standing, as well as New Jersey’s crime victim law – both constitutional and statutory – and held that a “victim has standing, and an unarticulated right, to oppose a petition by the press to open a juvenile proceeding.”

Id. at 322.

Other appellate courts have held similarly regarding victim trial court standing based upon modern victims’ rights laws. Three cases provide examples. First, in People v. Stringham, 253 Cal. Rptr. 484 (1988), the court held that a victim had standing to make a statement to the trial court regarding a plea bargain because the victim had the state right to speak at sentencing. In Melissa J. v. Superior Ct., 237 Cal.Rptr. 5 (1987), the court held that a victim had standing to object and appeal a trial court’s order terminating restitution because the victim had not been notified or afforded the opportunity to object to the termination as required by law. In Ford v.

State, 829 So. 2d 946, 947

(Fla. Dist. Ct. App. 2002), the court recognized a victim’s standing to object to a restitution order where the victim had not been notified of, or included in, restitution deliberations as required by the Florida Constitution.

Even a state court that has taken a very restrictive view of trial court level standing had to acknowledge some minimal level of compliance with statutory rights. In Hagen v. Commonwealth, (Mass.

2002), the Massachusetts Supreme Court held that a provision providing a victim with a right to "prompt disposition" did not extend beyond the sentencing hearing. The court went on: "We conclude, however, that a victim asserting the right of prompt disposition under the statute should be provided with an opportunity to address the court when that right is jeopardized."

Presently, NCVLI is working with a victim's attorney, Peter Rames, Esq., Melissa Stephenson, Esq., and the Honorable Keesha Ashanti of the DWI Resource Center, a former New Mexico County Metro Court Judge, on a case arguing for standing based upon modern victims’ rights laws. In August 2003, a New Mexico trial court held that a victim, who was represented by counsel, had no standing to appear at any stage of the proceeding. A motion for reconsideration has been filed before the trial court on the grounds that New Mexico’s constitutional and statutory victim rights create standing for victims in the trial court.

• If the trial court denies your Motion for Reconsideration, immediately file a petition for writs of mandamus, prohibition and certiorari to your state appellate court, together with a request that the court stay all proceedings.

To ensure that the appellate court cannot dismiss the petition for failing to use the appropriate review mechanism, be sure to petition for all three writs, unless your state has specifically renamed and/or combined them.

• It is important to move rapidly on each of these motions to avoid the risk of the case being mooted by the conclusion of the criminal trial and the attachment of double jeopardy.

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ADVOCATE SPOTLIGHT: DWI RESOURCE CENTER'S VICTIMS' RIGHTS PROJECT RAISES PUBLIC AWARENESS The center employs a variety of strategies to assist victims in their fight for recognition

by Linda Atkinson, Executive Director, DWI Resource Center

In 1987, New Mexico passed the Crime Victims’ and Witnesses’ Bill of Rights and adopted a constitutional amendment in 1992, with implementing statutes passed in 1994. Yet, even with these laws in place, New Mexico courts routinely overlook and violate victims' rights.

Since 1992, the DWI Resource Center, a private nonprofit organization based in Albuquerque, New Mexico, has worked to reduce death and injury caused by impaired drivers, as well as provide assistance to victims of drinking and drug-related crashes. It has also developed research-based prevention programs and serves as a clearinghouse of information on DWI-related issues.

In September 2002, the DWI Resource Center initiated the New Mexico Victims’ Rights Project, aggressively putting into action several mechanisms to enforce crime victims' rights. The Project began with a survey of over 2,000 victims to identify the barriers to enforcement of victims' rights. Results showed 64% of victims were never given their rights in writing; 59% were never informed of post-sentencing hearings; and 58% were never informed of the offender’s release.

In an effort to accommodate the need for education and awareness, the Center developed community-specific resource cards that were distributed to state and local law enforcement agencies. The cards give first responders the means of providing the victim his or her rights in writing, as well as phone numbers to the prosecutor’s office, the responding officer’s name and phone number, and a list of crisis intervention resources.

The enforcement aspect of the Project began with the development of a tracking system of rights violations and the recruitment and training of attorneys willing to volunteer their time to help victims stand and assert their rights in the criminal justice system. In May 2003, former judge Keesha Maria Ashanti was named Lead Counsel of the Project and currently oversees the pro bono legal team.

The results of the survey revealed several rights violations, which in turn became the basis for legal action by the pro bono team. The team has reviewed 22 cases to date and is currently working six open cases (16 cases are closed, five are pending).

In 2003, the DWI Resource Center requested the help of the National Crime Victim Law Institute in conducting training sessions for victims' rights pro bono attorneys and advocates. NCVLI staff attorneys traveled to Albuquerque this year to present two six-hour CLE accredited seminars, the first on April 25, the second on September 24. The trainings included specifics of New Mexico law, an overview of nationwide trends, and practical litigation strategies.

The Center sponsored a rally in April 2003, with both the mayor of Albuquerque and New Mexico’s governor in attendance, to inaugurate Victims’ Rights week and bring attention to the Center’s efforts on behalf of all crime victims. With increased public awareness through training seminars, legal challenges to rights violations, and continued collaboration with crime victims and victim advocacy organizations, DWI Resource Center hopes to strengthen New Mexico’s victims’ rights laws and create legal protections for all victims in New Mexico.

For more information about the New Mexico Victim's Rights Project, please contact: Linda Atkinson 2527 Wyoming Boulevard N.E. Albuquerque, NM 87112 Phone: (505) 292-2838 Fax: (505) 881-1301 Web Site: www.nm-victimsrights.org e-mail: vrp@nm-victimsrights.org

NCVLI welcomes story ideas and suggestions for future articles that spotlight a service provider, attorney, advocate or public citizen working on behalf of crime victims. We are also interested in hearing from victims who want to share their experiences with our readers.

Please send submissions 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

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EXPANSION, Continued from Page 1

STANDING, Continued from Page 5

Education is the Key

Standing as a Private Prosecutor

Hands-on training opportunities for pro bono attorneys and law students will increase as the state clinics are brought on line. Expansion of the topic of crime victim law in law school curriculums will aid in educating the next generation of lawyers. But in order for the justice system to begin to recognize victims' rights, it is imperative that attorneys representing victims understand what their clients' rights are, how the law affects their clients' cases, and how to defend and enforce these rights. To meet this need, NCVLI hosts a national conference on crime victim law each year exclusively for attorney training and legal education. (The 2004 conference will be held in June in Portland, Oregon.) Through these programs — the clinics, law school curriculum and the national conference — NCVLI is striving to reach out to a larger portion of the legal community.

NCVLI has had significant success in establishing case law, training attorneys in victim law, gathering a legal library of victim laws, and providing materials to educate law students. It is now focusing its efforts on growing the network of pro bono of attorneys who assist crime victims, which is a critical factor in the victims' rights movement. As part of this network, NCVLI will continue to support and assist lawyers who work on behalf of crime victims, because without a network, there is no movement.

CLPPS, Continued from Page 3

and dual coalition staff attorneys (those coalitions serving both sexual assault and domestic violence survivors).

The Benefit of Relationships From its position within NCVLI at Lewis & Clark Law School, the Center for Law and Public Policy on Sexual Violence has access to the legal expertise and research support of six staff attorneys, law faculty, and law students. The CLPPS staff can also use the network of professional relationships that NCVLI has developed to promote cooperation between the violence against women and crime victim communities. By providing a forum for the exchange of information, resources, strategies and expertise, CLPPS hopes to expose legal points and issues that are of concern to everyone, debunking the idea that some problems are strictly in the domain of the sexual violence community.

For more information on CLPPS, visit our website at www.clpps.org.

For the most part, victim standing is limited during the general conduct of the actual trial. An exception to this in some jurisdictions is the ability of a private prosecutor to prosecute petty offenses. For example, in Cronan v.

Cronan, 774 A.2d 860 (R.I. 2001), Professor Paul Cassell, now a Federal District Court Judge, and NCVLI prepared an amicus brief to defend the conviction of a wife batterer.

The police and prosecutor had refused to move forward on the case, so the victim hired a private attorney who succeeded in having a judge find probable cause and a second judge to convict after a full trial. Both the defense and the Attorney General sought to undo the conviction.

Ultimately, however, the Rhode Island Supreme Court held that the charging, trial and conviction of a misdemeanor by a private prosecutor was constitutional. In a similar case, a federal court ruled that the federal constitution is not violated by such procedures. See State of New Jersey v. Kinder, 701 F Supp. 486 (D.C. N.J. 1988).

On the other hand, private prosecutions of felonies may be prohibited by the due process clause of the federal constitution. See, e.g., East v. Scott, 55 F.3d 96,1001 (5th Cir. 1995) (holding that if a private prosecutor controlled felony prosecution, defendant’s due process rights would be violated); Person v. Miller, 854 F.2d 656, 662-64 (4th Cir. 1988) (holding that participation of private attorney under prosecutorial control did not violate due process).

Essentially, a private attorney for a victim can participate in the felony trial, but only under the control of the public prosecutor. Such private attorney assistance to public prosecutors is lawful in the vast majority of state and federal jurisdictions.

Appearance as Amicus or

by Leave of the Court Even if all of the standing arguments detailed above fail, all is not lost. Courts, including trial courts, have discretion to allow anyone, including crime victims, to participate as amicus with permission for oral argument. Judges traditionally have broad discretion to seek input into judicial decisions from sources other than full parties. An appeal to the trial court based upon the justness of allowing the victim to participate as amicus may open an avenue for victims’ voices in the courtroom, despite a trial court’s denial of “standing.”

The issue of standing in appellate courts will be addressed in the next edition of the NCVLI Newsletter.

Did you know...

The Lewis & Clark Law School Library houses the largest collection of crime victim legal materials in the country?

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LIFE STORIES: THE VICTIMS WE WORK WITH

by Meg Garvin, NCVLI Lead Staff Attorney

Duane and Nila Lynn shared nearly 50 years together before their lives were dramatically altered on April 19, 2000. What started as an ordinary Arizona day ended in the tragic shooting death of Nila.

The Lynns were attending a homeowner's association meeting when a former member of the community walked in and started randomly shooting. The offender was arrested at the scene and scheduled to stand trial.

Dealing with a Crime's Aftermath For Duane, the loss of his wife was devastating. He had known and loved her since the age of 16 when they met in high school. After moving several times, Duane and Nila eventually settled in Arizona, raising six children and enjoying their 11 grandchildren.

After his wife's death, Duane sought the support and assistance of Parents of Murdered Children and began attending meetings with his daughter, Patty. At one of these meetings, he heard speaker Stasy Click, Director of the Victims Legal Assistance Project, discuss her experiences representing crime victims in the courtroom.

(The Victims Legal Assistance Project, located at the College of Law at Arizona State University, is a project of the Arizona Voice for Crime Victims (AVCV).) While Mr. Lynn thought Stasy's work was interesting, he did not foresee how it could help him. Fate would soon reunite him with AVCV. Debating the Death Penalty At the time of the criminal proceedings in Duane Lynn's case, Arizona was debating whether a judge could impose the death penalty or whether this sentence had to be imposed by a jury. At an Arizona Legislature hearing on this issue, Mr. Lynn met Steve Twist. (Mr. Twist is President

of AVCV and of counsel to NCVLI). Mr. Twist then united Duane with AVCV's two attorneys — Keli Luther and Stasy Click — who would bring their work on victims' issues to bear on his case. Mr. Tim LaSota of Miller LaSota & Peters, PLC, also joined the legal team.

Duane wished to assert his state right to give a victim impact statement, which included a recommendation against a death sentence in the case. Relying on confused U.S. Supreme Court precedent, the Arizona trial court held that Duane would be unable to give any sentencing recommendation, even for a life sentence. His legal team did not give up, appealing the decision through the Arizona appellate courts. Each appeals court held that there was a per se bar against victim sentencing recommendations in capital cases.

The defendant was sentenced to death in January 2003, without any court or jury ever hearing Duane's sentencing recommendation.

A Case Worth Arguing Mr. Lynn's legal team pushed forward. Stasy Click and Steve Twist enlisted the help of NCVLI and Viet Dinh, a professor of law at Georgetown University Law Center.

In August 2003, this legal team petitioned for certiorari to the U.S. Supreme Court. The Supreme Court has yet to rule on the petition.

Duane believes Nila would want him to take the case as far as it can go and, regardless of outcome, he is satisfied because he knows "the lawyers seriously and sincerely did everything they could to get where we are now." He describes his legal team as angels from heaven, without whom he could not make it through his ordeal.

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

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