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Efforts underway to provide N.H. crime victims with constitutional rights

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Monitor staff
Thursday, January 11, 2018

A New Hampshire judge cannot proceed with a hearing if the criminal defendant was not notified of the date, time and location as required by law.

Similarly, a case would not proceed if a defendant was not notified of his or her right to an attorney, and had not had the opportunity to confer with legal counsel prior to appearing in court.

For crime victims in New Hampshire, the experience is much different. While victims in felony-level cases should receive basic notifications about court hearings under the Victim Bill of Rights, those notifications are not guaranteed and can’t be enforced by the judicial branch.

An ex-husband convicted of domestic violence can be released from prison without input from the victim. If the victim learns of his release after the fact, she can file a petition with the court, but the judge is not required to hold a hearing to consider her input.

Advocates maintain that until victims have rights that are guaranteed by the state constitution, the playing field for victims and criminal defendants will never be equal.

New Hampshire is one of 15 states that does not extend enumerated rights to victims of crime. A national effort that has now reached the Granite State is looking to change that, so all crime victims – including surviving family members of murder victims – have equal rights as criminal defendants under the state constitution.

The New Hampshire Coalition Against Domestic and Sexual Violence has partnered with Marsy’s Law for All to lead the effort and level the playing field in the Granite State. Marsy’s Law For All is led by Henry Nicholas, who is fighting for change in memory of his sister, Marsalee “Marsy” Nicholas, who was stalked and killed by her ex-boyfriend in 1983.

The newly created organization – Marsy’s Law for New Hampshire – will work under the umbrella of the national organization and will fully fund the statewide campaign. That campaign is scheduled to kick off Tuesday with a press conference at the State House in Concord.

New Hampshire has some of the most comprehensive victims’ rights laws in the nation and is looked to as a model state because of it, said Amanda Grady Sexton, the coalition’s director of public affairs.

“But we could go ahead and pass 100 more laws and statutory changes, and the fact remains that we have no constitutional rights for victims of crime,” said Grady Sexton, who is also the state director of Marsy’s Law for New Hampshire. “Until we do, victims of crime will never have equal footing in the criminal justice system.”

Victims’ advocates, prosecutors and law enforcement officials say the Granite State is well-positioned to pass Marsy’s Law. 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, said Grady Sexton. The measure also has the support of Republican Gov. Chris Sununu.

If Marsy’s Law passes the full House in April, the awareness campaign will continue into early November, when voters will be asked to cast their ballots for or against the constitutional amendment. A two-thirds majority vote is needed for the measure to pass.

The last time the state passed a constitutional amendment was in 2006.

Basic rights

While most residents are familiar with a criminal suspect’s Miranda rights, thanks in part to popular crime television shows and high school civics classes, few have an understanding of the rights afforded to crime victims. They may not even know that those rights are absent from the state and U.S. constitutions.

Marsy’s Law was first passed in California in 2008 with the most comprehensive constitutional victim’s rights law in the nation, and it laid the groundwork for other states to follow suit. The Nicholas family began its work 40 years ago after running into Marsy’s then-accused murderer in a grocery store, not knowing he’d been released on bail a week after her death. The courts and law enforcement were under no obligation to inform them under existing laws.

New Hampshire’s version of Marsy’s Law would amend the state constitution to ensure crime victims and their families have rights that are enforceable by the courts. This includes notice of court proceedings, notice of release or escape of the accused, the right “to be treated with fairness and respect,” and the right “to full and timely restitution.”

Just as officers must read a criminal defendant’s Miranda rights at the time of arrest, they would be required to provide victims with a Marsy’s Law card. The card summarizes for victims their rights, including opportunities for them to opt into various notification systems – such as those pertaining to an inmate’s incarceration, release and/or escape – if they choose to do so.

Opponents of Marsy’s Law in other states have argued that creating constitutional rights for victims will weaken the defendant’s rights. As criminal defense attorneys are learning about Marsy’s Law in New Hampshire, they’re beginning to express similar concerns; some even goes as far as to say the law is “unnecessary.”

Attorney Michael Iacopino, who practices at Brennan Lenehan in Manchester, said New Hampshire has solid laws on the books that provide protections to victims during the criminal justice process, mainly the Victim Bill of Rights. He said to grant crime victims constitutional rights tilts the playing field in favor of victims.

“There’s no reason why victims need the same rights as people accused of crimes,” Iacopino said. “The government is not using its power against victims.”

He also noted that “they’re not victims until there is a trial and it’s determined that a crime was committed.”

The American Civil Liberties Union of New Hampshire has not taken a position on Marcy’s Law, but expressed concern with the language in the national model for Marsy’s Law and how that model could be adopted here.

“We are concerned that adding such language to the New Hampshire Constitution would threaten the due process rights of defendants in our state and be in violation of the U.S. Constitution, specifically the Fifth and Fourteenth Amendments,” ACLU Policy Director Jeanne Hruska said in a statement. “Based on what we have seen in other states, such a constitutional amendment is also likely to be expensive to implement, particularly for small counties.”

Proponents of Marsy’s Law in New Hampshire say the end goal is equality – nothing more, nothing less. If victims’ rights are violated in the state today, they don’t have any recourse to enforce their rights under current state statutes, including the Victim Bill of Rights.

“We believe these are very basic rights and many of them already exist within our statutory framework, but, at the end of the day, a constitutional right will always trump a legal statutory right,” Grady Sexton said. “Every step of the way, should Marsy’s Law be implemented, we’ll be ensuring that the court is able to weigh the victim’s rights and the defendant’s rights equally.”

National attention fell on New Hampshire in 2016 when the New Hampshire Supreme Court ruled in favor of a convicted murderer’s constitutional rights over a victim’s statutory rights by opening confidential records sealed by the lower court. The ruling came on the heels of an appeal filed by Seth Mazzaglia, who was convicted of first-degree murder for strangling and raping 19-year-old Lizzi Marriott.

The case charted new grounds with the Marriott family granted a seat at the table as third-party intervenors, and they were backed by 13 organizations including the coalition. Ultimately, the high court reversed its decision and Marriott’s private records were never released, but the proceedings had a lasting impact on the victim community.

“If Marsy’s Law had existed at the time of this case, we would have avoided months and months of litigation,” Grady Sexton said, referring to the work done by the coalition, the New Hampshire Attorney General’s Office and the Marriott family’s private counsel.

‘Everyone has a stake’

For victims of domestic and sexual violence, their biggest fears about coming forward are that no one will listen or believe them. Once they do take that leap of faith, some feel they’re largely excluded from the criminal justice process because they aren’t a party to the case. Prosecutors represent the state, not victims.

While Marsy’s Law won’t change those realities, it affords victims greater protections from intimidation, harassment and abuse, as well as the right to attend and be heard during criminal proceedings, advocates say. While county attorneys’ offices throughout the state work closely with victims in felony-level cases, not all victims are afforded the same opportunities throughout the system.

Sexual assault survivor Tina Smith, a longtime resident of Concord, said she hopes Marsy’s Law will help victims feel empowered to speak up and know they have guaranteed rights equal to those of the accused. Smith, who disclosed childhood abuse at age 21, said the rights afforded to victims under Marsy’s Law seem so basic and yet in 2018 they’re still not incorporated into every state’s constitution.

“I feel this law, from most victims’ perspective, will make them feel heard and valued,” said Smith, who is president of the General Federation of Women’s Clubs Concord Contemporary Club.

Smith said she is eager to work with the coalition and other survivors, because she believes their personal stories will resonate with voters and help “put a face to the issue.”

Every person in New Hampshire either knows someone or has themselves been the victim of a crime, said Franklin police Chief David Goldstein.

“Everyone has a stake in this,” he said.

Goldstein, who has worked in law enforcement for more than four decades, said he views the passage of Marsy’s Law in New Hampshire as a natural next step in the evolution of victims’ rights.

“It’s about ensuring victims’ rights as well as the rights of the accused,” he said. “This has to be a joint effort among all parties involved.”

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)