Volume3

Protecting, Enforcing and Advancing Victims' Rights

NCVLI News

Lewis & Clark Law School ncvli.org

fall/winter 2004 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 Lewis & Clark Crime Victim Law Clinic ................................Page 1 Director's Message ................................Page 2 State/Federal Demonstration Project ................................Page 3 National Alliance of Victims' Rights Attorneys ................................Page 3 Victims' Constitutional Rights and Implied Standing .............. Page 5 NCVLI Technical Assistance Bank....Page 5 SLAPP and First Amendment Rights ................................Page 6 A Victim Story ................................Page 8

CLINIC STUDENTS RESEARCH ISSUES OF NATIONAL IMPORTANCE TO VICTIMS

by Jessica Mindlin, NCVLI Senior Staff Attorney

This fall, five Lewis & Clark law students dedicated course time to researching issues of national significance to the crime victim rights community. Their research topics were gleaned from technical assistance requests submitted to or identified by the National Crime Victim Law Institute and NCVLI’s Center for Law and Public Policy on Sexual Violence.

Clinic projects presented the students with an opportunity to expand their understanding of crime victim rights while performing rigorous legal research and analysis under the close supervision of a practicing attorney. "The small size [of the clinic] is nice, as is the opportunity to hear from attorneys who are actively and currently practicing in the area we’re studying," says second-year student Christo Sedgewick.

"This class involves more creativity," Stacey Borgman explained. "In most other law school classes, I read old cases and look at precedent. . . . Here, because there is no precedent, you have to learn how to formulate new arguments or change people’s minds about how things should be."

Producing excellent legal research and writing proved easy for the five clinic students, who focused their research on sentencing schemes in the post-Blakely era; illegal sentences; paternity rights in rape-related pregnancies; drug-facilitated sexual assault; a crime victim attorney’s right to be seated before the bar; the right to convene an investigative grand jury; and other legal issues significant for victims of crime.

Contributors Editor: Julie Hawkins Editorial content: Douglas Beloof, Esq. Barbara Brady, LCSW Meg Garvin, Esq. Jim and Sally Goelzer Jessica Mindlin, Esq. Wyatt Rolfe

Blakely v. Washington On June 24, 2004, the U.S. Supreme Court issued a landmark ruling in Blakely v.

Washington. The Blakely decision struck down as unconstitutional Washington State’s sentencing guideline system. The court held that a defendant has a Sixth Amendment right to have facts that increase his or her maximum sentence proven beyond a reasonable doubt.

© 2004 National Crime Victim Law Institute

Almost instantly, the Blakely decision created confusion for defendants, victims, judges, prosecutors, and defense attorneys alike.

For victims, Blakely brought into stark relief the seemingly endless turmoil of negotiating the convoluted paths of the criminal justice system. Will plea agreements be vacated?

Will trials and sentencing hearings need to be redone? Will juries have to be reconvened to determine the sentencing factors? The answers to these and many other questions are yet to be determined. NCVLI staff attorney Joanna Tucker Davis supervised a clinic student’s research and analysis of the possible effects of Blakely on victims and victims' rights in New Mexico.

Illegal Sentences Third-year law student Geoff Bosmans worked with NCVLI lead staff attorney Meg Garvin to identify a victim’s legal remedies in a case where the court imposed an illegal sentence. Responding to a recent Maryland court decision in which a victim was not notified of a hearing to modify the defendant's sentence, Mr. Bosmans crafted legal theories and wrote a legal memorandum detailing the illegality of the court’s actions and defining an appropriate legal remedy.

When Rape Results in Pregnancy Third-year law student Stacey Borgman, under the supervision of NCVLI senior staff attorney Jessica Mindlin, compiled a 50-state survey of statutes and case law addressing paternity rights in cases where a rape or sexual assault results in the birth of a child. Drawing from state adoption, custody, and child support laws, Ms. Borgman produced a detailed summary of how states have addressed the issue of conception in these circumstances. Her annotated chart will assist sexual assault attorneys throughout the country as they respond to this issue and provide models for legislative approaches that are more protective of victims' rights and legal and social needs.

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fall/winter 2004 Preparation of 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 E. Beloof Program Manager Barbara Brady, LCSW Staff Attorneys Meg Garvin, Jessica Mindlin, Kim Montagriff, Liani Jean Heh Reeves, Joanna Tucker Davis Administration: Bea Freilich, Julie Hawkins 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 I am devoting this issue's column to printing the full text of the federal victims' rights legislation, which was signed into law

by President George W. Bush on October 30, 2004. This legislation is historic because it establishes the most significant federal victims’ rights legislation to date and casts aside prior discretionary rights — which were ruled unenforceable in United States v. McVeigh — to establish enforceable rights with nondiscretionary mandamus review.

SEC. 102. CRIME VICTIMS' RIGHTS.

(a) Amendment to Title 18Part II of Title 18, United States Code, is amended by adding at the end the following: CHAPTER 237— CRIME VICTIMS’ RIGHTS Sec. 3771. Crime victims’ rights. (a) Rights of Crime Victims - A crime victim has the following rights: (1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

(5) The reasonable right to confer with the attorney for the Government in the case.

(6) The right to full and timely restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim’s dignity and privacy. (b) Rights Afforded: In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a). Before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be clearly stated on the record. (c) Best Efforts To Accord Rights: (1) GOVERNMENT - Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a).

(2) ADVICE OF ATTORNEY - The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection (a).

(3) NOTICE - Notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person. (d) Enforcement and Limitations: (1) RIGHTS - The crime victim or the crime victim’s lawful representative, and the attorney for the Government, may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief under this chapter.

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UPDATE: THE STATE/FEDERAL DEMONSTRATION PROJECT

by Barbara Brady, NCVLI Program Manager, and Meg Garvin, NCVLI Lead Staff Attorney

In 2003, NCVLI funded the first victims' legal clinic — the Crime Victims' Legal Assistance Project of Arizona Voice for Crime Victims — at Arizona State University College of Law. Additional subgrants were awarded in 2004, and in 2005, one federal and three additional state clinics will be awarded funding. These legal clinics are part of the State/Federal Demonstration Project, a five-year project funded by the Office for Victims of Crime of the U.S. Department of Justice.

The Project has three goals: 1) to create a network of legal clinics that provide direct legal representation to crime victims in criminal courts; 2) to enhance representation for victims nationwide by training and educating members of the legal profession, litigating victims’ rights, and expanding the National Alliance of Victims' Rights Attorneys (NAVRA); and 3) through this network of clinics and services, to identify and demonstrate promising legal practices and strategies for future clinics.

These goals are reflected in the Project’s mission statement: In community with victims, advocates, and organizations, the Project promotes and advances crime victims’ civil rights in the criminal justice culture through a nationwide system of legal advocacy, education, and resource sharing.

Since the launch of the legal clinics, the Project has made tremendous strides towards fulfilling its mission. To date: • each clinic is actively working to establish a relationship with local law schools to develop intern, extern, and pro bono educational opportunities for law students;

• each clinic is working to add a new law school course addressing victims’ rights in criminal procedure to their local law school curriculum — three clinics have approval; • three clinics have law school students working with them; • four clinics’ attorneys have appeared on behalf of crime victims in criminal trial courts; • three clinics’ attorneys made appellate arguments on behalf of crime victims; • each clinic is actively recruiting pro bono attorneys to assist in the representation of crime victims; and • each clinic is scheduling and conducting trainings on victims’ rights laws for attorneys and victim advocates.

To foster the development of the legal clinics, NCVLI attorneys are responding to technical assistance requests with legal research memoranda, drafting manuals on crime victims’ rights law, providing on-site legal trainings, tracking and summarizing new victims’ rights court decisions, and working to target critical cases for litigation by each clinic.

What does the future hold? NCVLI and the clinics will continue to build a network to support crime victims in asserting their legal rights in criminal courts. We will have more direct representation of crime victims in trial and appellate courts nationwide. We will expand our relationships with law schools for more education and training of students. We will expand the training and educational opportunities for attorneys and victim advocates nationwide. We will begin to identify promising practices for others to follow. Stay tuned.

Thank You NAVRA Members!

NCVLI would like to recognize existing members of the National Alliance of Victims’ Rights Attorneys (NAVRA) for their support of NCVLI and to thank those who have submitted applications for membership this year.

The National Alliance of Victims' Rights Attorneys, an association of NCVLI, seeks to promote the exchange of knowledge and resources among crime victim attorneys.

Law students, victim advocates, and crime victims are also encouraged to join NAVRA to lend support to the awareness and enforcement of victims’ rights.

NAVRA members receive: • victims' rights case updates, which are researched and summarized on a quarterly basis • education and training (conference call trainings, tuition reduction for the NCVLI annual conference) • technical expertise of NCVLI staff attorneys NAVRA is continuing its membership drive and, to foster development, has temporarily waived membership fees. If you would like more information on joining a growing base of dedicated victims' rights attorneys, contact us at navra@lclark.edu.

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IMPLIED STANDING IN VICTIMS' CONSTITUTIONAL RIGHTS: APPROACHES TO PARTICIPATION

by Professor Douglas E. Beloof, NCVLI Director

It is appropriate for victims to seek review of violations of their constitutional rights even if no explicit provision for standing or review exists. Review is implicit in victims' constitutional rights. Moreover, victims’ challenges in cases involving jurisdictional issues are reviewed as a matter of routine. The advent of crime victims’ constitutional rights merely adds a basis for review. Novel as victims’ rights may be, it is within the authority of appellate courts to review violations of all constitutional rights, and victims’ rights should be enforced no less vigorously than other individual constitutional rights.

Writs of certiorari, mandamus, and prohibition are available to victims when there is a remedy, whether or not the constitutional provisions expressly make writs available. Neither full party status nor express standing is required for victims to obtain review by writ. The Federal Tenth Circuit Court of Appeals in United States v. McVeigh, the case involving the Oklahoma City bombing, denied the victims mandamus because federal victim laws at the time were discretionary, rather than mandatory.

The court acknowledged, however, that mandamus is available to victims to compel a government official to comply with mandatory law, despite non-party status and no appeal rights: We do not hold that the lack of what is often called "appellate standing" necessarily precludes mandamus review. Standing encompasses "constitutional considerations related to the 'case or controversy' limitation of Article III and also prudential concerns 'that, apart from Art. III’s minimum requirements, serve to limit the role of the courts in resolving public disputes.' " Article III authority is a prerequisite to judicial review, however sought. In contrast, a prudential concern, such as non party status, counseling uniquely or primarily against the propriety of appeal, need not bar a petition for mandamus review. We emphasize that our standing analysis turns on constitutional considerations, not the excluded witnesses’ nonparty status.

United States v. McVeigh, 106 F.3d 325, 334 n. 7 (10th Cir. 1997) (Internal citations omitted).

Unlike the rights reviewed in McVeigh, victims’ state constitutional rights and the new federal victims' rights are not discretionary. (See the Director's Message in this newsletter for the text of the new federal law.) The violation of a non-discretionary victims’ right provides the basis for writ review.

Victims have been allowed to seek mandamus where courts have exceeded their jurisdiction. When a victim

was not given notice or an opportunity to be heard at a trial level hearing, a California appellate court voided a trial court order vacating a previously entered order of restitution. Melissa J. v. Superior Court, 190 Cal. App. 3d 476 (Cal. Ct. App. 1987). Mandamus was allowed where the petitioner sought to be classified as a "victim" under federal law. Saum v. Windall, 912 F. Supp. 1384, 1397 (D. Colo. 1996). (Peremptory writ issued because "crime victim status [under Victim’s Rights and Restitution Act] is reviewable, states a valid claim and is not subject to dismissal.") Where a victim challenged an Oregon trial court’s jurisdiction to order defendant’s counsel access into the victim's home where the crime occured, a peremptory writ issued because the court had no jurisdiction over the victim. State ex rel. Beach v. Norblad, 781 P.2d 349, 350 (Or. 1989). And, mandamus was issued where a Texas trial court acted outside of its jurisdiction in ordering a psychological evaluation of a child sexual assault victim by the defendant’s expert. State ex rel.

Holmes v. Lanford, 764 S.W.2d 593, 594 (Tex. App. 1989) (Writ issued because neither the prosecution nor the court had the jurisdiction "to force a complaining witness to submit to such an invasion of her right to privacy.")

Victims have been allowed to seek writs of certiorari where other means of review are not available. In Ford v. State, 829 So.2d 946 (Fla. Dist. Ct. App. 2002), the trial court sentenced the defendants pursuant to a plea agreement even though the victims were not notified of the hearing as is required under the Florida Constitution.

The trial court granted certiorari review as to the victim's right to restitution. The intermediate appellate court noted that "this is a violation of a constitutional right for which there is no appellate remedy, we agree that the petitioner has demonstrated certiorari jurisdiction." Id. at 948. On review, petitioners sought to void the restitution portion of the judgment. The court issued a writ so ordering.

Similarly, in State v. West, 320 N.W.2d 570 (Iowa 1982), the victims petitioned for writ of certiorari alleging that the trial court erroneously denied their claims to share in a restitution fund because the victims did not have standing to appeal, and they were injured financially in a way different from the public generally. The court reviewed the petition. Id. at 573. Ultimately, the court denied the writ because the petitioner was not a "victim" under the legal definition. Id. at 574-75.

Writs of prohibition prevent trial courts and prosecutors from acting without jurisdiction. For example, State ex rel. Miller v. Smith, 285 S.E.2d 500 (W. Va. 1981). The West Virginia Supreme Court issued a writ of prohibition to prevent the public prosecutor from interfering with the victim’s access to a state grand jury.

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fall/winter 2004 The court issued the writ under its inherent authority to uphold constitutional rights. In State ex rel. Pulitzer, Inc. v. Autry, 19 S.W.3d 710 (Mo. Ct. App. 2000), a Missouri trial court sought to close the courtroom to the press and public. Under a state constitutional provision allowing the victim to attend trial, the victim brought a writ of prohibition to prevent the court from excluding victims from the courtroom. The appellate court accepted review but ultimately determined that the victim was not subject to the trial court's order. See also, Burdette v. Lobban, 323 S.E.2d 601, 603 (W. Va. 1984) (writ of prohibition to overturn court order requiring child victim to be interviewed by defense outside the presence of the victims’ attorney).

For a victim to have standing on review, a remedy must be available. While remedies will be the focus of a future newsletter, some examples may be useful. Absent express restrictions in constitutional language or the bar of double jeopardy, the appropriate remedy for a rights violation is to void the court's ruling, order, or judgment.

In Melissa J., supra, the trial court modified a restitution order in violation of the victim’s constitutional and statutory right to notice and to be heard. The California intermediate appellate court voided the trial court’s order.

The Supreme Court of Arizona vacated a parole board order because the state had failed to comply with its lawful obligation to inform the victim of the procedural requirement. State ex rel. Hance v. Arizona Bd. of Pardons and Paroles, 875 P.2d 824 (Ariz. Ct. App. 1993). In the Florida case of Ford v. State, supra, victims petitioned for certiorari challenging a restitution order entered in violation of the victims’ constitutional right to be heard at sentencing. The Florida intermediate appellate court voided the restitution portion of the judgment and remanded the case for a re-sentencing. The appellate court granted the writ, ordering that restitution be divided in proportion to the victims’ loss rather than in equal shares.

In the last two newsletters, I have explained how victims have standing to bring petitions for writ of mandamus, prohibition, and certiorari and have examined standing when there were express provisions for standing on review. In the more specific area of sexual assault victims' privacy protections, other types of review are available.

In the next issue, rape shield laws will be the vehicle for exploring standing to bring interlocutory appeals, while victims' rape crisis counseling privileges will provide the basis for examining the collateral order appeal doctrine.

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NCVLI'S TECHNICAL ASSISTANCE BANK As part of its mission to advance crime victims’ rights, the National Crime Victim Law Institute researches and provides informative educational material in response to technical assistance requests from attorneys nationwide.

Legal issues analyzed by NCVLI staff attorneys since the spring of 2004 include: • The effect of the recent Supreme Court case Blakely v. Washington on Arizona’s sentencing scheme, including a discussion of restitution, retroactivity, remedies for violations of Blakely, and Blakely’s effect on victims’ rights.

• How to use the First Amendment right to petition government for redress of grievances as a defense in a civil action filed against a crime victim based on the victim’s reporting of criminal conduct.

• Whether, under Arizona law, the parent of a minor victim who does not herself qualify as a “victim,” can invoke the crime victims’ rights laws to refuse a pre-trial interview request from the defense.

• The constitutionality of Arizona’s Spousal Sexual Assault statute, which provides for lesser criminal penalties for sexual assault committed within the marital relationship.

• The requirements necessary for a valid citizen petition to convene an investigative grand jury under New Mexico law.

• The scope of authority of a solicitor in South Carolina, including a brief discussion of the rules of ethics and case law from other states, pertaining to a possible conflict of interest when a solicitor does not prosecute a case in which there is a personal connection to the defendant.

• The variety of responses to a law enforcement agency's or a prosecutor's demand that a sexual assault victim submit to a polygraph test before proceeding with an investigation or prosecution.

• The key elements of an absolute confidentiality privilege for advocates, the ethical issues that may arise, and how to address these issues.

• The critical components and best approach to designing research instruments for use in the courtwatch project in order to observe and assess how the justice system responds to sexual assault survivors.

• The legal and non-legal remedies for a victim of campus sexual assault who was expelled from school and lost her job as a result of the assault.

Printed by AlphaGraphics. This newsletter is printed on recycled paper using a soy-based ink.

If you would like a copy of any of the materials identified above, please contact NCVLI by calling (503) 768-6250 or via email at ncvli@lclark.edu.

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REPORTING CRIME: A VICTIM'S FIRST AMENDMENT RIGHT

By Meg Garvin, NCVLI Lead Staff Attorney, and Wyatt Rolfe, Lewis & Clark Law Student and NCVLI Legal Intern

Imagine your friend, relative, or client in this position: Jane Doe has just been the victim of a sexual assault.

She is angry, ashamed, nervous about entering an unfamiliar criminal justice system, and terrified that her attacker will come after her if she reports the crime.

Jane musters the courage to report the crime and cooperate with law enforcement throughout the investigation. The case ends before going to trial or plea, and the defendant files a civil suit, alleging defamation, malicious prosecution, abuse of process, negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and false arrest — all based on Jane’s reporting of the crime and her cooperation with law enforcement.

Unfortunately, this scenario is not unusual. Retaliatory lawsuits are frighteningly common and have the aim and effect of chilling a victim’s First Amendment rights.

What Are These Suits?

Lawsuits that target victims for reporting crime are known as strategic lawsuits against public participation (SLAPP), a term originally coined by Penelope Canan and George W. Pring, professors of sociology and law, respectively.

See Penelope Canan and George W. Pring, SLAPPS: Getting Sued for Speaking Out (1996). While SLAPP suits come in many forms, in the context of crime victims’ rights, SLAPPs are most often civil lawsuits brought by a criminal defendant against a crime victim or witness who reported the crime or cooperated with law enforcement during investigation. Camouflaged as ordinary civil tort suits, SLAPPs present six common claims: 1) defamation, 2) business torts, 3) process violations, including malicious prosecution and abuse of process, 4) conspiracy, 5) constitutional and civil rights violations, and 6) violations of law. Id. at 150-51.

Because they target a victim’s First Amendment rights of free speech and public participation through petitioning of government, SLAPP suits are not ordinary tort cases.

What Can You Do If Your Client is SLAPPed? Immediately identify the case as a SLAPP and move the case out of the context of simple torts and into the First Amendment arena. The First Amendment to the United States Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.

U.S. Const. Amend. I (emphasis added).

The final clause of the First Amendment, the right to petition the government for a redress of grievances, is fundamental to "the very idea of a government republican in form." United States v. Cruikshank, 92 U.S. 542, 552 (1875). See also United Mine Workers of Am. v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967).

The United States Supreme Court has held that lawsuits brought as an assault on the First Amendment right to petition should be dismissed unless the petitioning activity at issue was a sham. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972); City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365 (1991).

Together, these cases establish what is known as the "Noerr-Pennington Doctrine." The Noerr-Pennington Doctrine originated in antitrust but has long since expanded beyond that arena. See, e.g., Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 59 (1993) (stating, "[w]hether applying Noerr as an antitrust doctrine or invoking it in other contexts, we have repeatedly reaffirmed that evidence of anticompetitive intent or purpose alone cannot transform otherwise legitimate activity into a sham"); Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal 1972) (naming Noerr and its progeny as basis for dismissing an "interference with advantageous relationship" suit); Protect Our Mountain Env’t, Inc. v. District Ct., 677 P.2d 1361 (Colo.

1984) (relying on federal case law and establishing a three-prong test for reviewing suits that target petitioning activity in an environmental case).

A victim’s attorney faced with a retaliatory civil lawsuit must be prepared to argue two things: 1) that the victim’s activity was petitioning activity, and 2) that the petitioning was not sham petitioning.

What Is Petitioning?

The right to petition includes petitioning "all departments of the Government." California Motor Transp. Co., 404 U.S. at 510. Courts nationwide have found that reporting criminal conduct, executing a criminal complaint with law enforcement, and assisting with a law enforcement investigation each constitute an exercise of the First Amendment right to petition. See, e.g., Gable v. Lewis, 201 F.3d 769, 771 (6th Cir. 2000) (noting that "[s]ubmission of complaints and criticisms to non-legislative and nonContinued on next page

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fall/winter 2004 judicial public agencies like a police department constitutes petitioning activity protected by the petition clause"); Estate of Morris ex rel. Morris v. Dapolito, 297 F. Supp.

2d 680, 692 (S.D.N.Y. 2004) (concluding that swearing out a criminal complaint against a high school teacher for assault and seeking his arrest were protected First Amendment petitioning activities); Lott v. Andrews Ctr., 259 F. Supp. 2d 564, 568 (E.D. Tex. 2003) (noting that "[t]here is no doubt that filing a legitimate criminal complaint with law enforcement officials constitutes an exercise of the First Amendment right"); Arim v. General Motors Corp., 520 N.W. 2d 695 (Mich. Ct. App. 1994) (granting summary judgment to individuals who were sued for their participation in a criminal sting operation based on the First Amendment); United States v. Hylton, 558 F. Supp. 872, 874 (S.D. Tex. 1982) (noting that filing a legitimate criminal complaint with law enforcement officials constitutes an exercise of the First Amendment right); Curry v. State, 811 So.2d 736, 743 (Fla. Dist. Ct. App. 2002) (finding that complaints, even though numerous, made to law enforcement agencies are protected First Amendment activity regardless of "unsavory motivation" of petitioner).

furtherance of such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue communicates information regarding another person or entity to any agency of the federal, state, or local government regarding a matter of concern").

What Should You Do? Be vigilant — crime victims are targets of reprisal in many forms. Civil lawsuits are one method of reprisal. Identify these cases as SLAPPs early, reframe the issue as a First Amendment victim’s rights issue, and move to dismiss.

This is the only way to ensure these suits do not become judicially condoned reprisal.

NCVLI would like to acknowledge Michael W. Skorupka, of Messner & Reeves in Denver, Colorado, a civil attorney who recognized that the civil suit in front of him was not an ordinary case and reached out for assistance from the victims’ rights community, and Stephen Masciocchi, of Holland & Hart in Denver, Colorado, who served as local counsel for NCVLI in the filing of an amicus curiae brief on this issue.

What Is Sham Petitioning?

Only legitimate petitioning activity is protected by the First Amendment. Therefore, for a crime victim’s reporting and cooperation to be protected, that activity must not be sham petitioning.

Sham petitioning was first characterized in Noerr as activity that is "nothing more than an attempt to interfere directly with the business relationships of a competitor."

Noerr, 365 U.S. at 533, n. 23. Generally, sham petitioning can be described as objectively baseless petition, or as one court stated, it "encompasses situations in which persons use the governmental process — as opposed to the outcome of that process — as [a] . . . weapon." Omni Outdoor Advertising, 499 U.S. at 380 (emphasis in original). See also California Motor Transp. Co., 404 U.S. 508; Bill Johnson’s Rest., Inc. v. National Labor Relations Bd., 461 U.S. 731; Omni Outdoor Products, 499 U.S. 365 (1983); and Professional Real Estate Investors, Inc., 508 U.S. 49.

In addition to the First Amendment, what can be argued? Many states have anti-SLAPP statutes that protect First Amendment petitioning activity. While state statutes vary in scope, many contain a procedural safeguard to ensure that sham petitioning is not protected. See, e.g., ME . R EV. STAT . ANN. 14 § 556 (2003) (providing that a court will grant a motion to dismiss unless the non-movant can show that the petitioning activity "was devoid of any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual injury to the responding party"); M I N N . S TAT . A N N . § 554.03 (2000) (protecting activity unless "the conduct or speech constitutes a tort or a violation of a person’s constitutional rights"); TENN. CODE ANN. § 4-21-1003 (2004) (creating immunity for "[a]ny person who in

SAVE THE DATE! June 17-18, 2005 NCVLI's 4th Annual Crime Victim Law & Litigation Conference Hilton Hotel Portland, Oregon

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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LIFE STORIES: VICTIMS IN THE COURTROOM We endured a nine-year odyssey through the legal system that caused us great pain, anxiety, depression, and stress. It began with the murder of Sally’s brother, Hal Bone, on November 23, 1995, and recently ended with the convictions and sentencing to life without parole for James Sanchez and Richard Rivas.

Hal became the target of threats and violence after agreeing to testify against James Sanchez, a convicted felon, who had assaulted him at a bank machine. Sanchez was tried in absentia after failing to attend the first assault trial, which ended in a hung jury. Police recaptured Sanchez the following year, and he was held for a second assault trial. Again, the jury was unable to reach a verdict.

While waiting for the third trial, Hal sought police protection at work and as he traveled to and from the airport. He received harassing phone calls and his house was set on fire. He purchased two guns for his protection, keeping one in his desk at home, the other in his car.

Despite these efforts, Hal was ambushed and shot on Thanksgiving eve by Sanchez and Richard Rivas. (Rivas, whom Sanchez had recruited to help with the crime, was convicted for his role as gunman.)

At the start of the trials for Rivas and Sanchez, we quickly discovered that prosecuting the two men would be no easy task. Before the separate trials began, we spoke with four different deputy county attorneys before meeting the one person who agreed to prosecute both cases and see them through to conclusion. Prosecutor Juan Martinez informed us the process would take several years. In the end, it took nearly four years to get convictions, two and a half more years until sentencing, plus another two years of appeals. (Last summer, Sanchez won his appeal, and in this ninth year, the trial ended with another guilty verdict. Sentencing was completed four weeks later.)

Over the course of the two trials and the appeal process, there were approximately 124 continuances and delays.

Aside from the emotional experience of losing a family member, the trial delays took the hardest toll on us. We were unable to live our lives without disruption. (We had to come home from two different vacations, which we desperately needed.) We tried to juggle personal commitments and responsibilities with the ever-changing court schedule but eventually gave up on making any plans. We began feeling like the world was going by and we were standing still. Time became nothing but trials and hearings and pain.

Other distressing events surrounding the Sanchez and Rivas trials occurred during the nine-year span: • The judge who was overseeing one of the trials and was familiar with the players and details of the case recused herself. Bringing in a new judge delayed that trial.

by Jim and Sally Goelzer NCVLI Board Members

• The court-appointed counsel for one of the defendants requested additional pay from the state for the amount of time he was spending defending the accused. While the state was sorting out the problem, the trial was again put on hold.

• The victim advocate who had been assigned to Hal’s assault case and was working closely with the family during the murder trials went to work for the mitigation expert hired by one of the defendants.

• The defendants were so intimidating to us that the prosecutor asked guards to escort family members out of the courtroom every day after the trial.

• Sentencing, which should have taken no more than 90 days after the verdict, occurred two years and six months after the Rivas trial, and two years and four months after the Sanchez trial.

• We requested a copy of court transcripts after sentencing and were told that we could obtain them at substantial cost (a cost the defendants did not have to pay).

We knew little of the procedures, language or culture of the criminal legal system. The more experiences we had with the legal system, the more frustrated we became.

It’s a world where you don’t count, and how you feel or what you are going through doesn’t matter. We complained to the prosecutor about what we perceived as abuses of the legal process and our unfair treatment; he in turn relayed our message to the county attorney, Rick Romley.

It was through Mr. Romley’s office that attorney Steve Twist heard about our situation. Steve, who has fought long and hard for the rights of victims, told us about our rights and appeared with us in court. The day we walked into court with representation was the end of all the delays. His opening remarks on our behalf patiently yet forcefully outlined our rights as victims to the judge and the defense, who clearly understood the Arizona Constitution and related statute references. The whole atmosphere changed immediately. A sentencing process that had been dragging on for almost two years and was in hopeless disarray now proceeded in an orderly fashion to completion in 60 days. So many opponents of victims’ rights think victim involvement will slow the legal process down, but in our case, representation made the trial proceed more quickly than it had up to that point.

As a result of this experience, we have taken a strong interest in victims’ issues. Sally volunteers at the Crime Victims Legal Assistance Project at Arizona State University, and both of us serve on the National Crime Victim Law Institute’s Board of Directors. We felt a great need to get involved, to be a part of what these Continued on next page

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COURTROOM, Continued from previous page

organizations were doing, and it meant so much to be asked to serve as NCVLI board members.

As board members, we are able support the work of the Institute and contribute our energy and ideas to the victims’ rights movement. Our goal is to build a strong group of victims’ rights enthusiasts from all parts of the country who have developed an interest in victims’ rights beyond their own experience and who would like to be informed of new developments in the area of victims’ rights. We invite people to share their experiences, comments, and opinions with each other and with the recipients of the NCVLI newsletter. We feel that victims’ input can be a significant resource in understanding current victim conditions.

If you are interested in sharing your story with the legal and crime victim communities, please contact Jim and Sally Goelzer at crimevicnews@aol.com.

DIRECTOR’S MESSAGE, continued from Page 2

(2) MULTIPLE CRIME VICTIMS - In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.

(3) MOTION FOR RELIEF AND WRIT OF MANDAMUS The rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred.

The district court shall take up and decide any motion asserting a victim’s right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure.

The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.

(4) ERROR - In any appeal in a criminal case, the Government may assert as error the district court’s denial of any crime victim’s right in the proceeding to which the appeal relates.

(5) LIMITATION ON RELIEF - In no case shall a failure to afford a right under this chapter provide grounds for a new trial. A victim may make a motion to re-open a plea or sentence only if: (A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied; (B) the victim petitions the court of appeals for a writ of mandamus within 10 days; and

ncvli.org (C) in the case of a plea, the accused has not pled to the highest offense charged. This paragraph does not affect the victim’s right to restitution as provided in Title 18, United States Code.

(6) NO CAUSE OF ACTION - Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction. (e) Definitions: The term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights, but in no event shall the defendant be named as such guardian or representative. (f) Procedures To Promote Compliance: (1) REGULATIONS - Not later than one year after the date of enactment of this chapter, the Attorney General of the United States shall promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims.

(2) CONTENTS - The regulations promulgated under paragraph (1) shall: (A) designate an administrative authority within the Department of Justice to receive and investigate complaints relating to the provision or violation of the rights of a crime victim; (B) require a course of training for employees and offices of the Department of Justice that fail to comply with provisions of Federal law pertaining to the treatment of crime victims, and otherwise assist such employees and offices in responding more effectively to the needs of crime victims; (C) contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims; and (D) provide that the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by a complainant.

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LAW STUDENTS, continued from Page 1

Legitimate Constitutional Rights

Drug-Facilitated Rape vs.

Rape of the Incapacitated Victim

The clinic serves as far more than a source for excellent legal research, legal memoranda, and litigation support.

The clinic provides an ideal environment for educating law students about the rights of crime victims and compels them to think more critically about the relationship between the victim, the defendant, and the state. As one clinic student explained, "I did not know anything about a victim’s rights before joining the class. The thing that has made the biggest impression on me is that the victim’s interests are not always the state’s interests. I had never thought about this before. I had always assumed they were pretty much aligned." It also helps students imagine a new paradigm, one in which victims' rights are as legitimate and enforceable as all other constitutional protections. "Before the clinic, I was just interested in this area [of law]," Sandra Naranjo explains. "Now I understand that these rights are not a gift but basic rights.

And I will always advocate for victims' rights in my community."

Under the supervision of NCVLI staff attorney Liani Jean Heh Reeves, Christo Sedgewick researched whether and how states prosecute sexual assault offenses in cases where the victim is incapacitated and in cases where the assailant administered an intoxicant to the victim. Mr. Sedgewick compiled national case law to garner a broader understanding of what types of factual patterns lead to the prosecution of rape where the victim is incapacitated due to drugs or other intoxicants.

Legal Technical Assistance to Crime Victim Attorneys Providing a student the opportunity to research a range of legal issues while responding promptly to technical assistance requests from the State/Federal Demonstration Project legal clinics proved to be a perfect combination for third-year law student Sandra Naranjo and NCVLI staff attorney Kim Montagriff. Ms. Naranjo researched various legal issues of import to crime victims, including whether a crime victim's attorney can appear in front of the bar to protect the victim's rights during sentencing. She drafted memoranda that addressed: 1) the standards for a crime victim in New Mexico to file a valid petition to convene an investigative grand jury, and 2) whether minors who witnessed the murder of their father can be required to affirmatively establish paternity prior to being entitled to the protection of the constitutional and statutory victims' rights in Arizona. Finally, Ms. Naranjo assisted an Oregon attorney by providing research into ways a victim of sexual assault can protect the privacy of her contact information during a criminal proceeding.

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

An outstanding group of Lewis & Clark law students presented their research findings at the end of the fall semester.

NON-PROFIT ORG US POSTAGE

PAID PORTLAND, OR PERMIT NO. 438

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