Shane Goettle: Criticism Of Marsy's Law Initiative Should Be Based In Fact

While I respect Mark Friese and his work as a defense attorney, he recently made a number of errant claims about what Marsy’s Law for North Dakota would do if implemented. While those of us involved with the measure expect push back from defense attorneys who represent accused criminals, that push back should at least be grounded in facts.

First, we are not seeking to implement Marsy’s Law for North Dakota because of anything that happened in California, or any other state. Marsy’s Law for North Dakota has been written to match our existing statutes and to meet our needs. And even though Mr. Friese stated that there isn’t a single example of a North Dakota case which warrants modification of existing law, that is wholly untrue.

Mr. Friese might consider the family whose daughter was murdered. The defendant was convicted and ordered to pay restitution, except when the defendant was released in 2015, requests by the family to receive the court-ordered payments were ignored. Through Marsy’s Law for North Dakota, communication to victims regarding these processes would be clearer and protected so that additional suffering is not endured.

Mr. Friese might also consider the woman who sought a restraining order against the man convicted of domestic violence against her. In that process, the man received her new address and work contact information. Her right to privacy for this information was not constitutionally protected, and, therefore, not honored.

These are but two examples where Marsy’s Law for North Dakota could make a true difference for people whose lives have been inextricably changed, and who don’t deserve to be re-victimized by a system that could be improved.

The victims, victim supporters, law enforcement and others involved in supporting this effort demonstrate the real story. Placing victims’ rights on an equal standing to those of accused criminals will make an important difference in the information they receive, in the information they are able to provide, and in preventing harassment by the accused and their agents throughout an already difficult process.

All Marsy’s Law for North Dakota does is ensure people have the right to be heard, the right to be notified and the right to be free from harassment. This is crystal clear in the language of the measure. Seeking these rights does nothing to infringe upon the existing Constitutional rights of accused criminals.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]All Marsy’s Law for North Dakota does is ensure people have the right to be heard, the right to be notified and the right to be free from harassment. This is crystal clear in the language of the measure. Seeking these rights does nothing to infringe upon the existing Constitutional rights of accused criminals. [/mks_pullquote]

Even though North Dakota crime rates are low and our laws are strong, our laws do not put victims’ rights on an equal level to those of criminals—a constitutional level. Marsy’s Law for North Dakota will elevate victims’ rights to the Constitution, so that both sets of rights, for victims and criminals, are as fully and equally protected as possible.

It is well-established that whether one is a defendant or a victim, faith and participation in the system is improved when the system operates on notions of procedural justice and transparency of the processes. It is also well-established that survivors fare better when they have voice and choice in the aftermath of crime as part of procedural justice. This is what Marsy’s Law achieves.

Mr. Friese questioned the necessity for Marsy’s Law for North Dakota to be a Constitutional amendment. Our existing statutory rights have been a critical step in helping survivors and improving justice, but if anyone thinks those statutes absolutely secure fair treatment of crime victims, who are uniquely different than witnesses, then they are gravely mistaken. Constitutional amendments are appropriate when the goal involves a basic human right that, by consensus, deserves permanent respect and cannot adequately be protected through statute. As one of the top constitutional law scholars in the country, Professor Lawrence Tribe, said when talking about victims’ statutory rights, “There is a tendency to ignore or under enforce such rights whenever they appear to rub up against either the rights of the criminally accused or the needs or wishes of the prosecution.” Simply put, statutes cannot stand up to this cultural reality and we have seen this time and time again.

Furthermore, to Friese’s claim regarding the need for litigation, the fact that courts may have to interpret some rights should not cause us to do something lesser for victims. Besides, what is outlined in Marsy’s Law for North Dakota is not new – it was written based on our existing statutory laws.

Without a doubt, elevating victims’ rights to our state Constitution places them at the top of North Dakota’s hierarchy of law. This may render some statutes superfluous and require others to recognize a new interest, but each of those was done with thoughtful consideration of defendants’ rights. And, again, nothing about Marsy’s Law impairs defendant’s state or federal constitutional rights.

For instance:

There has been concern expressed regarding victims’ rights in juvenile cases, including the right to be present at all proceedings. The fear seems to be that victim presence will impede the rehabilitative goals of the juvenile justice system. First and foremost, victims’ rights do not alter the fundamental nature of juvenile justice. They do not make the process open to the public or remove confidentiality guidelines; they in fact add to “the integrity of the juvenile court process” by ensuring that the person(s) most impacted by the conduct being adjudicated can see the process at work. Victims’ rights recognize that victims are different than the public and invite them to participate in and contribute to the rehabilitative process. Victims would still be bound by confidentiality. Further, we know that juveniles’ paths forward can benefit from knowing the human impact of their conduct.

In fact, in my own law practice, I once served as defense counsel for a juvenile, who damaged someone’s property. The victim wanted to know that justice would be served. He was rightfully angry.

The victim might have been totally excluded from juvenile process except for action suggested by the teenager himself and supported by his parents (and his counsel). During the course of the proceedings, I accompanied the juvenile to the victim’s place of business. We sat down and discussed the incident. The juvenile apologized and explained the terms of the court had laid out regarding community service. The juvenile and the victim reconciled. In the end, the victim patted him on the back and said, “You’re a good kid. You made a bad decision. I am glad you are owning up to it.” This was a good outcome for all concerned. Marsy’s Law for North Dakota would help foster more of these kinds of interactions between juveniles who make mistakes and the victims who want justice, but also want to see the juvenile make better choices in the future. It fosters the goals of rehabilitation for juveniles to come face-to-face with those they have harmed.

As a second example, in 1975 when the Federal Rules of Evidence were adopted and nearly every state followed suit in adopting Rule 615, the standard was to treat victims like a piece of evidence – allowing them in the courtroom only when they testified for fear of “tainted testimony.” Importantly, however, court after court has held that a) defendants have no federal constitutional right to exclude persons from the courtroom; and b) the great equalizer for anyone who tries to tailor testimony is cross-examination. Recognizing this, most states in the country now allow victim presence.

Further on the notion of taint, Mr. Friese asserts that a victim’s right to review any report or record and be present will taint the trial process. Again, the great equalizer is always cross-examination. I also want to remind Mr. Friese that looking back in history, it wasn’t that long ago that defendants were being denied access to reports too, often because of perceived taint. Defendants asked, and ultimately secured, the rights to see reports (including PSRs) because they needed to know what everyone else in the room knew and to correct any errors in the reports. Victims absolutely deserve the same treatment.

Mr. Friese also inaccurately suggested that Marsy’s Law will result in debtor prisons. This is simply not true. There is a distinction between ordering of full restitution and collecting full restitution in the face of an individual’s inability to pay. Courts nationwide recognize that you cannot incarcerate a person merely for failing to pay a debt if they do not have the means to pay. Marsy’s Law simply ensures that the full cost of crime is calculated and restitution ordered.

Finally, any concern that Marsy’s Law for North Dakota will cause more cases to go to trial because of victims not participating in pretrial lacks data to support it. The concern itself seems to be based on the misperception that defendants have a constitutional right to such participation – they do not. The Supreme Court has consistently recognized that defendants have no pretrial right to discovery from a nonparty (i.e., victims). Marsy’s Law’s recognition of a victim’s right to refuse discovery and maintain some semblance of privacy pretrial is a recognition of the current federal constitutional landscape and would bring our state into line with the majority of other states.

Now, a victim can, of course, consent to a deposition if he or she chooses. Marsy’s Law for North Dakota just gives that person a choice that is in line with defendants’ federal constitutional rights.
Let me be clear, nothing in Marsy’s Law for North Dakota is new legal ground. And virtually all of it is currently in statute. Nothing about it diminishes defendants’ rights. Attempts to suggest otherwise are either misinformed or an attempt to continue putting the rights of the accused ahead of those who have been victimized. Neither of which should be acceptable to the people of North Dakota.

What Marsy’s Law for North Dakota will do is elevate victims’ rights to the Constitution, better ensuring these rights are legitimized, respected and protected. This means that the family whose daughter was murdered will not get the run-around by the system when requesting court-ordered restitution payments from her convicted killer. It means that the man who was convicted of domestic violence would not receive the address and work information of the woman he hurt. These things are happening right now in North Dakota, but by elevating victims’ rights to the Constitution through Marsy’s Law for North Dakota, we can ensure both sets of rights – victims’ and criminals’ – are as fully and equally protected as possible.