Saturday, October 29, 2005

The Prosecutor and Victims' Rights

by Josh Marquis
published in Crime Victims Report, 2005


As a prosecutor for more than 20 years, I often find myself orienting new employees to the District Attorney's Office to the special duty we owe to victims of crime. In Oregon, as in many states, there is now a constitutional amendment that protects the rights of victims. Younger employees take for granted the ability of a victim to be present at trial, to be informed of plea negotiations, and to speak at sentencing.

It is not unusual for new staff to be astounded when I tell them that when I started trying cases, victims were systematically barred from courtrooms, it was rare for a prosecutor ever to discuss a plea bargain with the victims, and judges were known to tell victims to sit and down and shut up when they tried to address the court at a sentencing. The hard-fought gains that victims’ rights advocates have achieved in state legislatures, through popular referenda, and most recently in the United States Congress, should never be taken for granted.

While many politicians are only too happy to give lip service to “victims’ rights,” congressional advocates like California's Senator Diane Feinstein– a steadfast supporter of victims’ issues – are all too rare.

The resistance to codifying and thereby insuring victim’ rights comes from several fronts, not always where one might expect.

Most predictable are the criminal defense attorneys and their supporters, sometimes masquerading as victims groups, who are convinced that any additional right for victims must necessarily result in a loss of rights for defendants. They refuse to understand that extending such rights is not a zero-sum game and that it is possible to protect the rights of both suspects and victims.

Then there are others in the criminal defense bar who are simply terrified of victims becoming empowered, correctly realizing that if victims exercised their rights, more guilty people would be convicted of the crimes they committed.

There is the sheer bureaucratic inertial resistance to change. These objections come from some court staff who are afraid that victims will somehow disrupt “their" courtrooms; and from the governmental functionaries who resist providing funding to a new class of client – in this case the victimized.

Finally,and perhaps most unexpected, was the ambivalence from some prosecutors, who should have been the greatest advocates for the rights of victims. Some prosecutors have been hesitant to embrace laws that add new responsibilities – such as making sure a victim is aware of what rights the law affords them, and consulting with victims on everything from trial settings to plea bargains. A few prosecutors expressed fears that a system in which they represent the community and not just the individual victim will get turned on its head by the creation of a new bill of rights for victims. For some the concern was that victims would be independently represented in the courtroom, turning the adversary system into a three-ring circus.

Thankfully, these fears proved unfounded and the vast majority of America’s District Attorneys have now embraced victims' rights as a keystone value.

Despite some barriers, vast changes have taken placed in the American criminal justice system. While those of us advocating for a federal constitutional amendment had to settle for statutory victims' rights legislation in Congress, things are very different than they were even a decade ago. Consider how it was necessary in the aftermath of the Oklahoma City mass-murder bombing in 1995 for then-law-professor Paul Cassel to sue the federal government just to provide access for victims’ families to killer Timothy McVeigh’s trial. While federal courts may be among the slowest to fully incorporate victims rights it is not insignificant that Professor Cassel is now United States District Judge Paul Cassel, in Salt Lake City Utah.

My own state of Oregon is a case study in the evolution of victims rights. For the last eleven years I’ve been the elected District Attorney on Oregon’s north coast, but before being appointed to that job in 1994 I spent almost 10 years as a deputy district attorney in three other Oregon counties.

I’ll not soon forget that in 1985, when I helped distribute a petition to get the most basic victims' rights on the state’s ballot, there were considerable efforts made to intimidate people like me from circulating these petitions, claiming we were misusing our positions as public employees. These efforts were opposed by a group calling themselves the protectors of Oregon’s civil liberties. That group included many people who have held high elective and appointed offices in Oregon and who now embrace what are considered basic victims’ rights.

At that point we were simply asking that defense attorneys not be allowed to keep a murder victim’s parents out of view of the jury by slapping them with subpoenas -- never intending to actually call them as witnesses but using the maneuver to keep them out of the courtroom. Oregon’s Measure 10 passed by a significant margin in 1986 and, contrary to the predictions of the many distinguished legal scholars, civil liberties in Oregon did not come to a crashing halt. But a decade later many in the victims' rights movement, now joined by virtually all prosecutors, were frustrated when certain judges would deny statutory victims rights on the grounds the statutes were trumped by the constitutional protections accorded criminal defendants.

In 1996, after Oregon voters, by a margin of 59 to 41 percent, passed Measure 40, which incorporated victims' rights into the state’s constitution, the state’s Supreme Court overturned the measure on a highly technical claim in a decision entitled Armatta vs. Kitzhaber. (An interesting side-note: The lawyer who successfully challenged the victims' right law went on to monitor the war crime tribunals arising from the Serbian-Croat-Bosnian conflict and was recently quoted as being bitterly disappointed by the acquittal of a Croat commander who had been accused of a massacre in 1993).

Victims' rights advocates slogged back to the state legislature and broke down the omnibus victims law that was overturned into seven separate measures that went back to Oregon voters in 1999. The usual suspects of criminal defense attorneys and self-described civil liberties guardians argued vociferously against all the measures, even the one that simply declared that victims' rights were to be accorded the status of a constitutional protection. Despite their efforts, the most significant four of the seven measures were passed again and remain the law in Oregon to this day.

Oregon’s experience is fairly representative of national trends. After initial and often ferocious resistance, courts and lawyers have come to accept victims' rights as a reality that is here to stay. As a working prosecutor I must balance my obligation to serve the community with my legal, ethical and, most importantly, moral duties to crime victims. Like many prosecutors my office has staff specifically dedicated to keeping victims informed of the ever-changing court dates and try to prepare them for the traumas of a trial.

At the same time, we cannot allow the victims to dictate how or if we prosecute a case, the most important area being that of domestic violence. In all too many of these cases the victim wants nothing more than the dismissal of the case and in this type of case the relationship of prosecutor and victim can become difficult and contentious.

A defendant has had the right to “allocute” for the last several centuries in Anglo-American jurisprudence. Anyone who watches television knows that last thing that happens before a sentence is handed down is the judge asking the now-convicted criminal: “Is there anything you want to say before I impose sentence?” Many defendants have used the opportunity to simply dig themselves into an even deeper hole. It was only in the last 20 years that a woman who was sexually assaulted, the businessman who lost his livelihood to an embezzler, or the surviving members of a murder victim’s family had the right to speak, other than afterwards on the courthouse step.

In my experience we cannot underestimate the importance of what it means for the voice of the victim to be heard at that particular stage of a criminal proceeding. In talking to hundreds of victims over the years I have been struck by how cathartic the experience was for the overwhelming majority of victims. As someone who makes my living by talking and trying to persuade jurors or legislators with my words I am often in awe of the simple eloquence to which I have borne witness.

One of the least noticed but most significant decisions of the United States Supreme Court was the 1991 decision in Payne vs. Tennessee. Reversing years of precedent, the high court ruled that in the penalty phase of a capital case the prosecution is entitled to introduce at least some form of victim impact evidence. I was literally in the middle of a death penalty case in central Oregon when the Payne decision was handed down. I reacted with what I thought was caution by asking the victims’ family to limit their comments to describing the lives of Rod and Lois Hauser, murdered in 1987.

Not cautiously enough, as it turned out, as a few years later the Oregon Supreme Court overturned the second death sentence the killer had received, on precisely and solely the grounds that the trial court had allowed any victims' impact testimony.

Six years later I tried the case for a third penalty trial and again the victims’ family told the jurors what kind of lives their parents had led, but this time the State Supreme Court has affirmed the right of victims to speak.

Most of my experience with victim impact statements comes, like most prosecutors, in non-capital cases. Most of the victims of the murders I have prosecuted were poor and most were women who had led pretty tough lives. On more than one occasion I had to really reach out to find and bring a member of the victim’s family to the trial, but in every single case I was brought close to tears by the simple eloquence of their survivors. They almost never spoke of vengeance and rarely of what they wanted to see happen to the men who had taken their child or sister. They usually spoke about the finest qualities that almost every human being possesses.

In my office I keep the blown-up portraits of murder victims – the one living photo of the victim state law allows me to introduce into evidence. I keep them, often for years, to remind myself of why I what I have sworn to do as a prosecutor.

Very recently I gave the eulogy of my father, a college professor who died at age 84. He often despaired of my choice of profession, fearing that the pain and darkness associated with criminal prosecution would somehow darken my soul and sour me on life. I was able to assure him that it was instead the goodness and hope that I see again and again in the people who meet me at the worst times of their lives that sustains me and sends me forth again to do battle on their behalf.

TV Review: Close to Home

In a phrase: Close to Home is a complete waste of time.

Initially the show (aired Tuesdays, 10pm, CBS; and again on throwaway Saturday nights) sounded interesting....a young mother who works as a prosecutor. We read in the press materials that the actress (who looks about 18) has actually spoken to an un-named assistant DA somewhere in Indiana (where the show is supposedly set).

Things go downhill quickly when we discover that the lead character has "a perfect record" as a prosecutor She must never try any cases. Her boss is a schlump who in the cartoon world of TV law frets endlessly about what the enormous press corps of this tiny burg thinks.

The second episode features a slam against the "Weed and Seed" programs that seek to stamp out drug pushers and then put prevention programs in place. Instead we have the second lead angrily refusing to take "blood money" because she wants to give the poor drug-addled defendant "treatment instead of jail."

The Third episode is some PG-rated porn about 30-something houswives working as hookers.

Thank goodness real life in this business is far more interesting.

Tuesday, October 18, 2005

Measure 11 Brings Justice and Lower Crime Rate

by Joshua Marquis and Doug Harcleroad
printed in the Eugene Register-Guard
October 17, 2005


Citizen lobbyists Anne and Bruce Pratt struck a nerve with their unusually candid Sept. 27 guest viewpoint about their efforts to lobby the 2005 Oregon Legislature.

In a pair of responses, Arwen Bird of the Western Prison Project (Register-Guard, Oct. 3) and Portland-area state Reps. Mitch Greenlick and Chip Shields (Register-Guard, Oct. 10) wrote that a bill that would have enhanced penalties for repeat-killer drunken drivers (House Bill 2828) failed because it represented bad policy. We believe that Greenlick's and Shields' views are not shared by the vast majority of their legislative colleagues or Oregon voters.

The bill that the Pratts, whose son was killed by a drunken driver, helped write would have called for a 20-year prison sentence if it were the second time the driver had been convicted of killing one or more people with his car while drunk or high.

Unfortunately, that's not a hypothetical. In 1999, James Willie, while driving on the Sunset Highway near Seaside, high on a cocktail of illegal drugs, slammed his car into Martin Ferlitch's vehicle. Martin and his 12-year-old granddaughter, Jennifer, were killed. It wasn't the first time Willie had been convicted of killing people. In 1977, he was sentenced for causing the death of two people while drunk and served less than two years in prison.

As longtime prosecutors in Oregon, we have watched as the violent crime rate has plummeted over the last 10 years. Last year, USA Today rated each state's improvements in public health. Oregon was applauded for its reductions in violent crimes.

We believe much of that reduction can be attributed to Oregon voters passing and then reaffirming Measure 11, which ensures that those who commit the worst of violent felonies and sexual offenses against children actually go to prison, usually for six to eight years. Does anyone believe that the violent rape of a child deserves anything less than eight years in prison?

Another major reason violent crime is down is the move toward truth-in-sentencing laws which help to assure that a criminal will actually serve at least 80 percent of the sentence handed down by the judge.

To those who would have you believe Oregon has become a penal colony, it should be noted that Oregon has an incarceration rate lower than almost two-thirds of the other 49 states. Of our state tax dollar, eight cents is spent on prisons and another seven cents pays for judges, police, public defenders and a tiny slice of the budget of prosecutors' offices. (The bulk, 56 cents, pays for education.)

Crime strikes at all parts of our community and disproportionately hits our most vulnerable citizens, particularly women, children and people of color. A balanced criminal justice system needs a wide array of tools including probation, treatment and incarceration. Almost 75 percent of people who are convicted of felonies receive probationary, not prison, sentences; therefore, it is particularly important that we provide sufficient incentive for probationers to comply with treatment, sobriety and the other programs that attempt to steer them away from future crime. Without adequate jail beds at the county level or prison beds at the state level, the threat of future imprisonment often rings hollow. Criminals quickly learn there is little consequence for their misconduct.

As district attorneys, we stand to gain nothing by increasing the prison population. We don't get bigger budgets or salaries based on the number of criminals we lock up. We have advocated for a system of accountability because it is just and sensible public policy.

Criminals and criminal defendants have skillful and well-funded advocates in Arwen Bird and Chip Shields. The dead don't have as well financed a lobby, so we try to speak for them and remind our legal system that it exists to dispense justice to all citizens, not just those accused of crime.

Doug Harcleroad is Lane County district attorney.

Monday, October 17, 2005

Benton County Attorney Successfully Prosecuted

Court outburst costs attorney a $90 fine
By JENNIFER NITSON
Gazette-Times reporter
Monday, October 17, 2005 10:15 PM PDT

A member of Benton County’s consortium of court-appointed defense attorneys was found guilty Monday of a disorderly conduct violation stemming from an argument with a Corvallis police officer.

In November, John Rich had just left a pretrial hearing with a client when Corvallis police officer Phil Howrey, who had testified at the hearing, said he was going to arrest the client on a Corvallis Municipal Court warrant.

Rich had gone to the municipal court that morning to check in with the judge, who had recalled the warrant.

After Howrey told Rich he would not take his word on that, Rich yelled at Howrey in the courthouse hallway, threatened to sue him for illegally arresting his client and called Howrey a vulgar name.

Though disorderly conduct is generally considered a misdemeanor offense under Oregon law, it was reduced to a violation in this case.

A special prosecutor, Clatsop County District Attorney Joshua Marquis, argued the case for the state and a substitute judge, Erik Larson from Marion County, presided at Monday’s trial in Benton County Circuit Court.

Courthouse staff members and former Benton County Deputy District Attorney Michael Wynhausen described the minute-long confrontation between Rich and Howrey as alarming, saying they saw or heard Rich yelling at Howrey and that office staff even called a courthouse security deputy.

Wynhausen told the court he worried the altercation might turn physical and that he tried to diffuse the situation by asking Howrey to let the client go and for Rich to calm down.

Rich testified that he was angry during the incident because officer Howrey knew the warrant against his client had been cleared, but proceeded to grab his client by the arm and take him into a court office while he called to check on it.

“Mr. Wynhausen told officer Howrey that he understood the warrant had been cleared and to let it go,” Rich said. “I told officer Howrey that if he took (my client) into custody without a valid warrant, I would sue him for unlawful arrest.”

Rich said he was advocating for his client’s rights when he yelled at Howrey.

“He tried to explain to me that he was just doing his job,” Rich said. “My opinion was he was trying to exercise his authority over me. ... He was just doing it to be malicious.”

Howrey was angry at the time, Rich asserted, because he was frustrated after being questioned by Rich in court.

During Monday’s trial, attorney Russell Barnett of Eugene asked that the case against Rich be dismissed, saying there was a double standard at the courthouse. Barnett said members of the Benton County District Attorney’s Office have been known to yell in the courthouse as well but have not been charged with disorderly conduct.

“The fact that the defense was claiming some form of vindictiveness is without any merit,” Benton County District Attorney Scott Heiser said after the trial.

After reviewing police reports on Rich’s case, Heiser said his office “removed ourselves from all discretionary decision making in this case.”

It was up to Marquis to decide on a charge, if any, Heiser explained.

Judge Larson refused to dismiss the charge, but during sentencing told Rich he felt it was a “close case.”

The judge said he believed he understood what happened the day of the incident, how Rich may have felt upset and disrespected as his client “was being hauled away,” and how it might have been hard for Rich to stay in control of his emotions.

“You should have, but you didn’t,” Larson said. “That’s how you found yourself here today.”

Larson added that at some point, most everybody has gotten upset and yelled at another person.

“This has happened to all of us at some time, and you were just unlucky enough to be called to task on it,” Larson said. “It seems someone decided to make an example of you.”

He was found guilty, Larson said, because Rich’s yelling “created a risk of public inconvenience, annoyance and alarm.”

Rich was fined $90.
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