In the worst act of domestic terrorism in American history Timothy McVeigh stood charged with bombing the Alfred P. Murray Federal Building, in Oklahoma City, which took the lives of a hundred and sixty-eight people and injuring some seven hundred. During the trial of Timothy McVeigh, a mother described her conversation with an employee from the medical examiner’s office about whether she would like it to return her four-year-old deceased daughter’s hand found in the rubble. The testimony was so emotionally powerful that it brought not only the witness to tears but also the jury, courtroom reporters, and the judge. Wayne A. Logan, Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact Evidence in Capital Trials, 41 ARIZ. L. REV. 143 (1999).
Understandably, there was intense media interest in the case. Robert Nelon, a First Amendment lawyer at the firm Hall Estill in Oklahoma City who represented a coalition of national news media in the case said, “The media interest was extraordinary. Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.” Stephen Jones, the lead defense attorney for McVeigh, said “The media interest was extraordinary, Reporters covered the rescue and recovery, the personal stories of victims, the response of police and fire units, the cooperation of public officials and outside groups like the Red Cross, and the motivations of McVeigh and [accomplice Terry] Nichols.”
This media interest was so intense, that Judge Richard Matsch announced on the first day of the trial, “This is not theatre. This is a trial.”
So what is a criminal trial? As Judge Matsch said criminal trials are supposed to be about the evidence produced in a case, not the emotions produced by the case. As the U.S. Supreme Court has made clear on a number of occasions, it is of some “importance that decisions be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 349 (1977). A citizen is on trial for a social wrong which allegedly deprived another citizen of a life or property. It is not a harm between two individuals but a harm to society as a whole. That is why the citizen who has been wronged is not represented by an individual advocate but by an impartial representative who is supposed to represent society as a whole.
This puts a public prosecutor in a vastly different position than an attorney simply representing a party in a case. “The State, when it becomes the party in a criminal prosecution, occupies a very different position from a party plaintiff in a civil action. It is as much interested in vindicating the innocence of one wrongfully accused, as in convicting one who is really guilty. The sole object of the prosecution is, to ascertain the truth, and to maintain the law. Its process should be as ready, therefore in behalf of the accused, as against him, for the sole purpose of such process is, to procure the attendance of witnesses, by whom the truth is to be established” West v. The State, 1 Wis. 209, 232 (1853).
As Judge Matsch explained, twelve people are selected to look at the evidence and decide the guilt or innocence of the other citizen. Judges tell Wisconsin juries their decision should be “based upon reason and common sense” and not on “on mere guesswork or speculation” or “personal feelings.” Specifically, a judge tells the jury to “decide the case solely on the evidence offered and received at trial” using their “soundest reason and best judgment” to reach a verdict. A jury is told not to “be swayed by sympathy, prejudice, or passion” but to “act with judgment, reason, and prudence.” Finally a judge tells the jury that “these rules are intended to assure that jurors remain impartial throughout the trial.”
So what if there is a movement, as exemplified by the Marsy law movement, to decide a case not on evidence but on sympathy, prejudice, or passion? Can citizen on trial be prohibited from introducing evidence which would show the citizen was not guilty? Should an impartial public prosecutor be replaced by a private attorney Is such a law which so drastically changes other constitutional rights currently being used in Wisconsin criminal trials constitutional?
The Montana Supreme Court has said “NO.” A constitutional amendment which so broadly amended multiple sections of Montana’s Constitution was found unconstitutional. Montana Ass’n of counties v. State, 2017 MT 267, 404 P.3d 733 (2017). “Although well intentioned,” explained petitioner and Lewis and Clark County Attorney Leo Gallagher, “the process leading to CI-116’s passage deprived Montana voters of the ability to consider the many, separate ways it changed Montana’s constitution or explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system.”
Marsy’s Law misstates and misunderstands what is fairness. Marsy’s Law represents an appeal to
personal feelings and an attempt to decide a case not on the evidence of what did or did not happen but by sympathy, prejudice, and passion. It is a false distinction to try and equate “victim’s rights” to the rights of those accused of a crime. The U.S. Constitution and all 50 state constitutions guarantee defendants’ rights because they are rights against the state, not because they are valued more by society than victims’ rights. Defendants’ rights only apply when the state is attempting to deprive the accused – not the victim – of life, liberty, or property. They serve as essential checks against government abuse, preventing the government from arresting and imprisoning anyone, for any reason, at any time. Marsy’s Law does nothing to check the power of the government but provides rights against another individual. This is the current approach of the Wisconsin Constitution. Wisconsin Constitution Article 1, Section 9m:
Victims of crime. Section 9m. [As created April 1993] This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy. This state shall ensure that crime victims have all of the following privileges and protections as provided by law: timely disposition of the case; the opportunity to attend court proceedings unless the trial court finds sequestration is necessary to a fair trial for the defendant; reasonable protection from the accused throughout the criminal justice process; notification of court proceedings; the opportunity to confer with the prosecution; the opportunity to make a statement to the court at disposition; restitution; compensation; and information about the outcome of the case and the release of the accused. The legislature shall provide remedies for the violation of this section. Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law. [1993 J.R. 2, vote April 1993]
Marsy’s Law has no comparable language.
Wisconsin’s constitutional provision is similar to what was done in New Hampshire. In New Hampshire victims’ rights statute preempts conflict between rights by stating that victims’ rights shall be enforced “to the extent . . . they are not inconsistent with the constitutional or statutory rights of the accused.” This language recognizes that victims’ rights may come into conflict with defendants’ rights and that our justice system works only if defendants’ rights against the state are upheld.
But, here is the worst problem as pointed out by Montana Supreme Court Justice Jim Nelson. In enforcing the victim’s constitutional rights, the defendant’s constitutional rights may be violated. For example, the victim can do that by preventing the defendant’s counsel from interviewing the victim and some witnesses. If the defendant’s constitutional rights to a fair trial, to due process, to effective assistance of counsel, to confront and meet accusers and witnesses face to face and to compulsory process for witnesses, both wisconsin and Federal Constitutional law may require that the charges against the defendant be dismissed or may require a second trial — the victims’ rights notwithstanding. That, obviously, is the last thing a crime victim needs.
Finally, there are existing laws much better than Marsy’s law at protecting the rights of alleged victims. The Wisconsin and New Hampshire approachs are much better than Marsy’s Law. And it is cheaper having to correct all the errors in Marsy’s law. South Dakota had to engage in the taxpayer paid process of revising Marsy’s Law after it initially passed. Montana Supreme Court Justice Jim Nelson called Marsy’s Law “A solution in search of a problem.” He explained: “Montana’s Legislature has already enacted a comprehensive body of laws that provide virtually the same victim’s rights as does I-116.” The issue is not that victim protections have not been legally prioritized. They are. Enforcement must improve and those responsible for enforcement must be held accountable. Creating a duplicative law in no way ensures that enforcement of these statutory protections will improve. As Justice Nelson points out, “If victim’s rights are truly a concern, then voters and victims should insist that the present statutory protections be adequately funded and enforced. There is always the remedy of the ballot box for public officials who won’t perform their duties.”