Criminal Defense Attorneys Oppose "Marsy's Law," Prosecutors Are Cool To It So Far

It’s not very often that you can get criminal defense attorneys and prosecutors on the same side of an issue. They are, by the very nature of their jobs, usually working against each other.

But Marsy’s Law – the name under which a victim’s rights ballot measure bankrolled by California billionaire Henry Nicholas is being marketed – could very well bring some unity to the two sides. The North Dakota Association of Criminal Defense Attorneys say they oppose the measure, and the executive director of the North Dakota State’s Attorney Association says his group is cool to the idea so far, though they’re not willing to make a definitive statement yet.

“The North Dakota Association of Criminal Defense Attorneys opposes the proposed ballet initiative known as ‘Marsy’s Law’,” Ted Sandberg, the President of that organization, told me in an email last week. “Our organization asserts that this measure to amend the North Dakota State Constitution will be harmful to the criminal justice system; the Court system; the Defendants in criminal cases; and in fact cause hurt, confusion, and troubles to those this measure is allegedly intended to protect:  Crime victims.”

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]”I think it is fair to say one of the biggest hang ups was why the need to amend the constitution when the legislature has always been more than willing to work on improvements to the system for victims already,” Birst said.[/mks_pullquote]

Sandberg says the measure would likely mean more cases get taken to trial. “Listen,  when victims decline to participate in pretrial proceedings or discovery there is no way the Defendant can appropriately understand or consider the full evidence against their case; the Confrontation Clause in the Constitution would be the only way a Defendant would, in many cases, get a complete view of the evidence against their case,” Sandberg told me. “Thus, more cases would be conducted before a Jury instead of being resolved by Plea Agreement – because the victim did not want to cooperate pretrial.”

He added that this would mean more victims, rather than fewer, would forced to testify in open court.

“It appears to attempt to fix a problem that does not exist; with legal tools that cannot be used; against the wishes and wisdom of the professional experts in the criminal justice field,” he added.

Meanwhile, the prosecutors don’t seem terribly keen on the measure either.

“We did have our State’s Attorney Winter meeting last week and the Marsy’s law folks came in and presented,” Aaron Birst, executive director of the State’s Attorney Association, told me last week. “Even though the presentation was helpful to understanding what they are trying to do, the entire membership at the meeting felt this wasn’t the best way to address victim’s issues.”

Birst added that about half of his organizations membership was at the meeting last week, and he doesn’t want to stake his organization to a formal position before he gets feedback from the rest of the membership.

“I think it is fair to say one of the biggest hang ups was why the need to amend the constitution when the legislature has always been more than willing to work on improvements to the system for victims already,” Birst said.

It’s going to be tough going for the Marsy’s Law folks if they’re fighting opposition from both criminal defense attorneys and prosecutors. At that point, who is left to credibly argue support for the measure?