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Victim rights bill under new scrutiny from scholars, attorneys

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  • Attorney General Gordon MacDonald speaks during a press conference with supporters of a constitutional amendment known as Marsy’s Law at the State House in Concord on Tuesday, Jan. 16, 2018. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz



Monitor staff
Sunday, February 04, 2018

Support among legislators and voters is mounting for the rights of crime victims to be included in the state constitution, but local law scholars and criminal defense attorneys are also questioning whether an amendment is even needed.

While some groups, like the American Civil Liberties Union of New Hampshire, say they are not opposed to constitutional protections for crime victims, they argue swift passage of the current proposal is ill advised. They say they want to ensure the amendment’s language is legally sound to preserve defendants’ long-standing trial rights and avoid years of litigation.

Others, including veteran defense attorneys, oppose the concept of a constitutional amendment altogether. They stand against a movement that has the backing of the governor, attorney general, leaders in the Senate and House, the commissioner of the department of corrections, and members of the four largest law enforcement agencies.

“I think people are rushing to embrace this without digging deep,” Concord defense attorney Mark Sisti told the Monitor. “We don’t pass constitutional amendments in this state lightly, and it’s not an easy thing to do. This is not and should not be a short process.”

The New Hampshire Association of Criminal Defense Lawyers has gone further than the ACLU by outright opposing Marsy’s Law, arguing such an amendment is unnecessary in a state that has strong victims’ rights laws on the books.

“A lot of what they’re advocating for here is already being done in New Hampshire,” said Katherine Cooper, the association’s executive director. “If X, Y and Z didn’t happen in your case it’s because someone made a mistake, not because we need a constitutional amendment.”

It is true that many of the rights proposed in Marsy’s Law – including the right to be notified of all court proceedings – are identical to those that currently exist in the state’s Victim Bill of Rights. But proponents say there is a glaring distinction between the two: by putting Marsy’s Law in the constitution, it guarantees victims rights more than existing statutes.

“This amendment’s language goes to changing the culture of the criminal justice system and making victims part of the day-to-day landscape,” said Paul Cassell, a former judge for the U.S. District Court in Utah who is an expert in victims’ rights.

The Victim Bill of Rights calls for all felony-level crime victims to be notified of court proceedings, but there is no penalty in place if that doesn’t happen, said Amanda Grady Sexton, state director of Marsy’s Law for New Hampshire. While most victims receive regular updates about ongoing criminal cases, notifications to victims in New Hampshire are treated as a courtesy, not as a mandate, she said.

“This is about balancing the rights between defendant and victim – and having a system that offers equality as a right, not a courtesy,” Grady Sexton said. “No system is 100 percent, but the rules of enforceability for a violation of a constitutional right is clear.”

The arguments

Thirty-five states have victims’ rights incorporated into their constitutions in some form. Just a handful of those states have passed the more detailed amendment known as Marsy’s Law in the past decade. Crime victims don’t have constitutional rights in New Hampshire or in 14 other states.

Marsy’s Law is named for the late Marsalee “Marsy” Nicholas, who was stalked and killed by her ex-boyfriend in 1983. After her murder, her family set out to ensure equal rights for crime victims across the United States, beginning in their home state of California, which was first to pass the comprehensive constitutional victims’ rights law in 2008. Since then, Marsy’s brother, California billionaire Henry Nicholas, has funded similar efforts in other states, including New Hampshire.

Many of the same arguments brewing in the Granite State over Marsy’s Law have been vetted by residents in Illinois, North Dakota, South Dakota, Ohio, Montana and Kentucky, where voters previously took up the proposal, Cassell said. Marsy’s Law includes more than a dozen basic rights backed by the national victims’ rights movement, including the right “to be treated with fairness and respect,” “to be heard in any proceeding,” “to reasonable protection from the accused” and “to full and timely restitution.”

But members of the criminal defense community say the proposal gives them great cause for concern about whether defendants’ due process rights will be compromised.

For example, New Hampshire is one of only a few states that allows defendants to get evidence and/or statements directly from the victim pretrial, like through a private investigator. Marsy’s Law provides victims with the constitutional right to refuse requests from defendants or someone acting on their behalf, other than appointed counsel.

Victims can still decline a request for an interview from a private investigator working on behalf of the defendant, but that right is not currently spelled out in New Hampshire statute. The problem is they often don’t know their options, especially if they haven’t been briefed by an advocate or prosecutor, said Patricia LaFrance, former deputy attorney in Rockingham County.

“When I was a prosecutor I’d always tell the victim, I can’t tell you not to talk to the defendant or their investigator, but sometimes victims get kind of ambushed and victims don’t know who the person is – an investigator will just show up knocking on their door,” said LaFrance, who now works in private practice.

The ACLU and defense attorneys say a victim’s right to refusal infringes upon a defendant’s right to face his or her accuser, but those spearheading the effort to pass Marsy’s Law in New Hampshire say the right to confrontation is a trial and not a pretrial right in most state courts and in all federal courts.

“The defendant has the right to confront his or her accuser, but doesn’t have the right to confront his or her accuser twice,” Cassell said.

Sisti told the Monitor he is concerned about defendants having “fair access” to their accusers and opposes any measure that would jeopardize the right of the accused to question those making the claims.

ACLU Policy Director Jeanne Hurska agreed with Sisti, noting that one of the overarching issues with Marsy’s Law is it doesn’t provide the courts guidance on how to proceed should a victim’s right and a defendant’s right come in direct conflict with one another. To remedy this, Hurska said an amendment should include phrasing to emphasize that in times of conflict a defendant’s U.S. constitutional rights must prevail.

She said that language could be taken directly from the Victim Bill of Rights, which says crime victims should have the following rights, “To the extent that they can be reasonably guaranteed by the courts and by law enforcement and correctional authorities, and are not inconsistent with the constitutional or statutory rights of the accused.”

But those advocating for equal rights for victims and defendants say the proposal would invalidate Marsy’s Law in its entirety.

“Victims in New Hampshire deserve better than watered down constitutional rights – they deserve a meaningful voice in the process and a seat at the table,” Grady Sexton said.

Victim vs. accused

Should Marsy’s Law pass in the Granite State, it would be one of the longest – if not the longest – constitutional amendments in the state charter, argued Buzz Scherr, a criminal law professor at the University of New Hampshire School of Law in Concord. He said the national model that proponents have put forth is at “stark odds” with the other articles in New Hampshire’s constitution because of its length.

“It’s not good constitutional policy or draftsmanship to put a whole statute in the constitution,” Scherr said.

He recommended the state consider a smaller amendment to include something to the effect of “a victim is entitled to dignity, respect and privacy, and these rights are to be respected unless they conflict with the defendants’ rights.”

At 350 words, Marsy’s Law would be among the lengthier articles in the state constitution, but it would not be the longest; two articles concerning a vacancy in the governorship are more than 400 words, with one nearing 500.

By contrast, Article 15, which was written into the state constitution in 1784 spells out the Rights of the Accused, is 218 words.

In addition to the length of the proposed amendment, Scherr and others disagree with the broad definition of victim under Marsy’s Law to include businesses and corporations. They say corporations and businesses should not be able to assert the same rights as individuals in the courtroom.

Of course, large corporations weren’t the target of the legislation, Grady Sexton said. The intent of the amendment is to protect the people of New Hampshire and small businesses who are “the backbone of New Hampshire’s economy.”

“This changes the system in New Hampshire to purely an opt-in one,” Grady Sexton said. “Large corporations like Walmart never choose to opt in because they have attorneys who represent their interests in court. Alternatively, the small deli owner likely will opt in so he or she can be notified when a criminal defendant has been let out on bail.”

While Marsy’s Law opponents say providing these notifications will overwhelm an already backlogged system, proponents disagree, noting that New Hampshire is already providing these notifications in the most serious of cases as required by the Victim Bill of Rights. Additionally, many city and police prosecutors who handle misdemeanor cases are also doing so in practice, even though there is no statutory requirement. In other states that have seen costs skyrocket after the passage of Marsy’s Law, those systems were not already in place, proponents note.

The state court system has not done a cost analysis.

Court communications manger Carole Alfano said the judicial branch will monitor the proposed constitutional amendment as it works its way through the Legislature.

“We take no position on the substance of the proposal and, as it is a constitutional amendment, we have not been contacted by the Legislature to comment on the financial component of such a measure but would, if requested, certainly work with the Legislature to do so,” she said.

Support builds

Last week, Marsy’s Law for New Hampshire released the results of a survey conducted by Public Opinion Strategies and Anzalone Liszt Grove Research, which found that 85 percent of voters in the state support Marsy’s Law. A sample of 500 registered voters were asked whether they’d vote yes to approve the amendment before and after it was read to them.

Voters will have the opportunity to cast their ballots for or against the proposed constitutional amendment if it receives a super majority vote in the Legislature in the months ahead. A total of 22 of the state’s 24 senators have signed on as co-sponsors of the bill, including its prime sponsor, Republican Sen. Sharon Carson, as well as the Speaker of the House and the House Democratic Leader.

During a press conference at the State House earlier this month, advocates, victims, legislatures and law enforcement officers called upon all voters in the state, regardless of political affiliation, to get behind Marsy’s Law. And just last week, the New Hampshire Association of Chiefs of Police, Sheriffs Association, Police Association and Troopers Association voiced unanimous support for the amendment.

“Enacting Marsy’s Law in New Hampshire not only takes a critical step toward total equality of rights in our criminal justice system, but it also advances our state’s proud record of standing up for the interests of victims of crime,” said Londonderry Police Lt. Patrick Cheetham, president of the state’s Police Association.

The Senate Judiciary will hold the first public hearing on Marsy’s Law on Tuesday beginning at 9 a.m. in State House room 100.