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.