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Victim's rights

Justice delayed is justice denied, and it was certainly delayed for Maurice Clark.  He waited five and half years for the trial of his rape case, enduring continuance after continuance -- twenty of them in all. 

But he'd been out on bond the whole time, so he wasn't complaining about the delay.  His victim, LaTreese Miller, was.  She finally filed a mandamus action in the court of appeals asking them to order the judge to try the case.  The appellate court mooted the action when the judge finally held the trial, but before that the judge responded to the petition, arguing that victims such as Miller have no standing to raise the issue.

They will if a new initiative to the Ohio Constitution is passed this November.

Back in 1994, Ohio voters passed Article 10a, a victim's rights amendment, to the state constitution.  It was broadly worded, as an amendment should be - "victims of criminal offenses shall be accorded fairness, dignity, and respect in the criminal justice process" -- and then left it up to the legislature to define those rights, which it did in RC Chapter 2930.

Those rights are fairly broad.  Among other things, the victim is entitled to notice of all court proceedings, and the right to appear at any hearing or trial, whether the defendant has been released on bond, and of the defendant's incarceration or release from prison.  One of the provisions requires notice if there's going to be a "substantial delay in prosecution," and also requires a judge to consider the victim's objections in evaluating a motion or agreement for delay.

The problem is in enforcement; the Victim's Rights Amendment specifically provides that it "does not confer upon any person a right to appeal or modify any decision in a criminal proceeding."  The new initiative is intended to correct that; it specifically provides that the victim may assert the rights, and "if the relief sought is denied, may petition the applicable court of appeals, which must promptly consider and decide the petition." 

And that's where things start to get funky.  The initiative spells out many rights, most of which are included in the statute, but provides two more:

(7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim;

(8) to proceedings free from unreasonable delay and a prompt conclusion of the case;

What exactly does that mean, especially given that the initiative now essentially grants the victim the right to appeal?  What happens if the trial court decides not to award restitution, or limit the amount of restitution, because it finds that the defendant's act was not the proximate result of the victim's loss, or that there was an evidentiary problem with the claimed loss.  Can the victim appeal that determination? 

Or what happens in the Clark/Miller case?  Obviously, a five-year delay is extreme.  But what happens if the victim complains about a much more limited delay?  One can easily envision a situation where the defendant's right to a speedy trial becomes the victim's right to a speedy trial.

This isn't unwarranted speculation, because there are two other provisions of the initiative which give serious concern.  First, it eliminates this language from the old Victim's Rights Amendment:

This section does not ... does not abridge any other right guaranteed by the Constitution of the United States or this constitution.

Second, the new initiative provides that the rights of the victim "shall be protected in a manner no less vigorous than the rights afforded the accused."

Well, I'm sorry, the Framers didn't adopt a Bill of Victim's Rights, they adopted a Bill of Rights which applied only to the accused.  Those rights are paramount, and they're the ones that must be enforced "vigorously."

Given the elevation of victim's rights to parallel those granted the defendant, and the new enforcement mechanism, it's not hard to imagine some of the mischief that the new amendment can create.  What happens if the victim wasn't notified of the trial, or the sentencing?  Does that result in a do-over?  (And as for trial, does that raise a double jeopardy problem?)  What if the defendant gets a new attorney, and the victim objects to a continuance:  how does the court balance the victim's rights against the defendant's right to the effective assistance of counsel?

If you think this is far-fetched, take a look at State v. Aldridge, a 1997 decision from the 2d District.  In that case, the defendants had been convicted of child molestation.  Several years later, many of the victims came forward with recantations of their stories, and the judge granted a new trial.  The State appealed, and one of its arguments was that granting the new trial violated the rights of the victims who hadn't recanted.

Not that these concerns are going to carry any weight come election time.  The 1994 Amendment passed with 74% of the vote, and anybody who thinks that the public is going to be swayed by the argument that the new initiative may violate the rights of criminal defendants just hasn't been paying attention.

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